R v Kenny

Case •

[2021] NSWDC 17

•

12 February 2021

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Kenny [2021] NSWDC 17
Hearing dates: 18 December 2020
Date of orders: 12 February 2021
Decision date: 12 February 2021
Jurisdiction:Criminal
Before: Weinstein DCJ
Decision:

The offender is sentenced to a term of 8 years imprisonment and a non-parole period of 5 years and 7 months

Catchwords:

Sentence -Fail to comply with reporting obligation – Grooming - Possess child abuse material– Cybersex relationship - Normalising extreme sexual depravity- registered child as slave - Similar criminal history of child sexual offending – Guarded prospects of rehabilitation - No offender is irredeemable

Legislation Cited:

Child Protection (Offenders Registration) Act 2000

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Firearms Act 1996

Cases Cited:

Burton v R [2020] NSWCCA 127

Lyons v R [2017] NSWCCA 204

Markarian v The Queen [2005] HCA 25

Milliner v R [2019] NSWCCA 127

MinehanvR (2010) 201 A Crim R 243

MinehanvR (2010) 201 A Crim R 243

Muldrock vThe Queen (2011) 244 CLR 120

R v Dagwell [2006] NSWCCA 98

Small v R [2020] NSWCCA 216

Tector v Regina [2008] NSWCCA 151

Category:Sentence
Parties: Regina
John Kenny
Representation: Mr S Barlow (Crown)
Mr S Wilkinson (Defence)
File Number(s): 2020/64723

Judgment

  1. The offender, John Kenny, born in 1970, is before the court for sentence for four counts of fail to comply with reporting obligation contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 for which the maximum penalty is 5 years imprisonment with no standard non-parole period [sequences 4,5,7 and 8]. He is also charged with 1 count of possess child abuse material contrary to s 91H(2) of the Crimes Act 1900 for which the maximum penalty is 10 years imprisonment with no standard non-parole period [sequence 9], one count of groom child aged between 14 and 16 contrary to s 66EB(3) of the Crimes Act 1900 for which the maximum penalty is 10 years imprisonment and the standard non-parole period is 4 years [sequence 10], and one count of groom child aged under 14 contrary to s 66EB(3) of the Crimes Act 1900 for which the maximum penalty is 13 years imprisonment and the standard non-parole period is 5 years [sequence 11]. The offender is also charged with possess pistol without authorisation contrary to s 7(1) of the Firearms Act 1996 for which the maximum penalty is 14 years imprisonment and the standard non-parole period is 4 years [sequence 12].

  2. There are also matters on a Form 1 which the offender asks me to take into account when sentencing him. These are 4 charges of fail to comply with reporting obligation contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 attaching to the sequence 10 offence.

  3. The Agreed Facts are as follows:

  1. The offender in this matter is John Kenny.

  2. The victim is RR.

  3. In 2009 Kenny was convicted and sentenced for two unrelated counts of “sexual intercourse with person under 16 years of age” and for one count of “possess child pornography”.

  4. On 13 February 2009 Kenny was registered on the NSW Child Protection Register (“CPR”).

  5. As at 27 February 2009 Kenny was still registered on the CPR. As at 13 February 2009 he provided details to the CPR to the effect that he:-

  1. Was not a member of any chat room;

  2. Had one instant messaging account which related to a website under the domain name oscolloections.com.au;

  3. Was not a user of any social networking sites; and

  4. Had not had any contact with a child

Sequence 11: Groom child under 14 years of age

  1. In January 2019 RR (then 13 years of age) began chatting with the offender on an anonymous chat app called “Whisper” via her telephone and her iPad.

  2. RR used the app to talk anonymously about things that she found difficult in her personal life. Kenny replied to a number of her posts, but she initially ignored him. After a while, they began to converse.

  3. Sometime later, Kenny asked RR how old she was. She said she was 13 years old. She found out at some later time that the offender was 49 years old. A short time later the conversation transferred to “Kik”, another messaging application. RR used only her telephone to access that application.

  4. The conversation on Kik related to RR’s personal life, including her relationship with her sisters and her schooling. Kenny also told RR about his personal life. He sent RR some pictures of his penis and also some images including his face. RR sent Kenny some pictures of her naked body, some of which included her face. Kenny encouraged her to do this and complimented her, which made her feel good.

  5. The Kik messaging also involved the offender sending RR a video of himself masturbating, saying the words “this is all for you baby”. He would sometimes call RR by name but also often called her “hun” or “babe”. He sometimes asked RR for pictures of herself naked. She sent him several such pictures, as well as some videos of herself naked. He responded by praising her looks and encouraging her to send more images and videos

  6. Examples of some of the exchanges between Kenny and RR included messages to the following effect:

  1. On 8 April 2019 Kenny encouraged RR to write, as a punishment, the words “I must be more careful” and “I must not give sir the bird” in an exercise book.

  2. On 10 April 2019 Kenny introduced RR to an online Bondage Discipline Sado- masochist (BDSM) test. The “test” revealed her to be “submissive” and a “masochist”.

  3. On 24 April 2019 Kenny sent RR a series of lengthy messages which described the sex acts he wished to engage in with her. These messages included:

  1. “That’s when you beg me to slide my cock inside you so you can feel my hardness. I look into your eyes… With one slow motion you feel the pinch of pain as I break your hymen, telling me you love me as we look into each other’s eyes.”

  2. “I want to treat you like a princess outside of home and a slut/slave/play toy/sex slave in it. I would make sure that you are naked the whole time we are at home alone wearing nothing but your dog collar and leash at all times.”

  3. “I want to fist your cunt and ass one at a time and both together.”

  4. “I want to use you for my amusement, I want to slap you so hard across the face you bruise, I want to pull your hair, I want to spit on your face then face fuck you until you gag.”

  1. On 25 April 2019 RR registered herself as the offender’s “slave” at a website named “slaveregistry.com” and she was issued with a Certificate of Registration and a slave number.

  2. Between the start of the conversation on Kik on about 14 March 2019 to 4 May 2019, the conversation between the offender and RR intensified in terms of the regularity and volume of messages being sent. By 30 April 2019, the pair were exchanging approximately 100 messages per day. They would exchange messages through school hours on an hourly basis, and intensify to a minute by minute basis after school hours. About half of these messages were sexually explicit.

  1. In due course, the offender gave RR his phone number and the conversation switched to WhatsApp on or around 2 May 2019.

  2. Once the conversation transferred to Whatsapp the messaging between the two continued at an even higher rate. They would message each other every day, often on an hourly basis, and intensify to a minute by minute basis in the evenings. RR believed herself to be in a boyfriend/girlfriend relationship with Kenny, a belief which he fostered and encouraged. At this time the pair were exchanging an average of about 50 to 100 messages per day.

  3. In early May 2019, Kenny directed RR to send him more explicit images of herself. These included videos of herself naked and masturbating along with videos in which she inflicted pain on herself, including applying clamps to her nipples.

  4. At this time, Kenny also introduced RR to a social network called “Fetlife”, which is a meeting place for people interested in BDSM and other sexual fetishes. RR provided Kenny with her login details and he oversaw her interactions on that network. The pair would discuss RR’s activities on this site on a daily to weekly basis. RR’s interactions on that site included posting naked images of herself and commenting on pictures/acts she was viewing.

  5. RR turned 14 years of age on 2 June 2019.

Sequence 10: Groom child aged between 14 and 16 years

  1. After 2 June 2019 Kenny continued to send RR videos while they were conversing on WhatsApp.

  2. The messaging between the two continued at a high rate. The pair would message each other every day, often on an hourly basis intensifying to a near minutely basis in the evenings. The subject of the discussion remained largely sexually explicit. The approximate average number of messages per day was 240.

  3. Messages sent by the offender to RR included videos of him masturbating. He also sent RR audio recordings in which he told her that he loved her. They would also occasionally speak on the phone. Kenny suggested to her that he would like to have a threesome with an older female friend of his.

  4. Through this period, RR continued to send Kenny a large number of photos and videos of herself naked and engaging in sexual acts. When she sent the offender those images, he responded enthusiastically and asked for more. On one occasion, he offered to send her money, but she declined.

  5. The offender sent RR some dog tags. These dog tags were labelled ‘Daddy loves his princess’ and bore RR’s “slave number”. She gave him her home address so he could send them to her by post. They arrived before Christmas in December 2019. Kenny asked her to wear the slave dog tags, which she did. She sent him multiple naked pictures and videos wearing the tags.

  6. Kenny and RR never met in person, but Kenny asked her to meet him. Both parties wanted to meet up and there was regular discussion of it happening, but it never eventuated. One message from the offender states ‘I was too chicken shit to meet you in public.’

  7. Examples of some of the exchanges between Kenny and RR included the following messages.

  8. Between 2 June 2019 and 3 September 2019 Kenny sent RR a series of messages which included the following:

  1. “My 13yr old girlfriend my $2 whore’’.

  2. “You should watch some bukkake porn vids”.

  3. “I’ve already thought about the first time we’re going to have sex many times over”.

  4. Three images of an adult woman having sexual intercourse with a dog.

  5. Five images of an adult woman being fisted.

  6. Images of adult women self-harming with needles, clips and bruises.

  7. Hyperlinks with descriptions such as: double_fisting_fun_with_a_homemade_beauty; brutally_fisting_skinny_teens_slack_ruined_pussy; deep_fisting_ass_of_my_wife.

  8. Discussion of RR being tied up and engaging in a “gangbang” with 21 men.

  9. “The pic of you 10 years old hubba hubba I’d tap that! You’re sexy at such a young age. You that’s what’s sexy and your little titties”

  1. In October 2019 the offender sent RR a message in which he suggested that he wanted to post pictures of her to websites such as “fet”, “zoig”, “swingersheaven” and “adultism”. RR later posted images of herself on a website named “Fetlife”, which were available for public viewing. Prior to posting these images, she sent them to Kenny for approval. Under his direction she posted a number of photographs which did not depict her face, but were focused on her breasts from the shoulders to the stomach. The images depict RR in a red bra covering her breasts, one of her breasts out of the bra and one with no bra at all.

  2. In December 2019 Kenny asked RR to send him a video of herself putting on the tags he had sent her, reciting a “slave oath” to him.

  3. Throughout this period RR remained under the impression that she was in a boyfriend/girlfriend relationship with the offender and he continued to foster that belief. The messaging continued in similar fashion up until Kenny’s phone was confiscated by police on 27 February 2020.

  4. At the time the messaging ceased, the pair were exchanging an average of approximately 240 messages per day. They were messaging on a minute by minute basis by that time, except during school hours when they were messaging hourly.

  5. Over the course of the conversation on Whatsapp, the offender and RR exchanged a total of 69,254 messages. The messages were sent over the course of 9 months and 24 days.

  6. An extract of the Whatsapp messages sent between Kenny and RR in the week leading up to Kenny’s arrest were annexed to the facts in the Crown Bundle and accord with the examples in the Agreed Facts.

Sequence 8: Fail to comply with reporting obligations (contact with child)

  1. On 23 and 24 February 2020, the offender and his partner went to Coffs Harbour to see his partner’s brother at an engagement party. The offender’s brother in law had a young daughter born on 29 September 2016, who was also present.

  2. Kenny had some contact with the child over the course of those two days, including playing games and watching the Wiggles with her.

  3. Kenny had been seeing the child at family gatherings once or twice a year since her birth.

  4. On 27 February 2020 police went to the offender’s apartment. The purpose of their visit was to check that Kenny had been complying with the requirements placed on him as a registered person.

  5. The offender answered the door and allowed police inside. Kenny’s partner was sitting on the lounge as police came inside.

  6. Police asked the offender to provide them with any electronic devices he might have been using so that they could inspect them. Kenny initially told police that he had left his mobile phone at his office. He then made admissions to seeing his partner’s niece without reporting that contact to the CPR.

  7. The offender was arrested for the failure to report his contact with his partner’s niece. He was searched, and police found the following things in his possession:

  1. X…198: Black Samsung phone;

  2. X…197: Blue SD card, card reader, SD card adapter (empty), SD card adapter with a micro SD card inside it;

  3. X…195: Wallet containing multiple documents with what appeared to be usernames such as “younghornycunt” and “daddiesgirl75”; and

  4. X…196: Multiple membership cards inside the wallet.

  1. The offender was taken to Maroubra Police Station. He declined to provide the PIN code to his phone. Police called the offender’s partner and asked her what the PIN code was. She provided it to them and they were able to access the phone.

  2. On 3 March 2020, police returned to Kenny’s apartment to execute a search warrant. Nobody was home and the search commenced. Amongst the items seized were mobile phones, USBs, hard drives, cameras, laptops and SD cards.

Sequences 1 – 7: Fail to comply with reporting obligations (disclose social media/messaging application usernames)

  1. On examination of the offender’s phone, police found the following applications with the following usernames, none of which had been reported by Kenny as required:

Application

Application Purchase Date

Username

Sequence

Snapchat

28/8/18

J K jayksyd

Seq 1 – Form 1

Skype

28/8/18

[email protected]

Seq 2 – Form 1

WeChat

28/8/18

JK70

Seq 3 – Form 1

MeetMe

28/8/18

Shivas Regal

Seq 4

Kik

5/9/18

master_jay1970

Seq 5

Line

28/8/18

jaykay70

Seq 6 – Form 1

Skout

28/8/18

Jay Jay

Seq 7

Sequence 9: Possess child abuse material

  1. Police later screened the items seized for child abuse material.

  2. The materials were classified according to the Interpol Baseline Categories which categorise child abuse material as follows:

  1. Category 1: An image depicting a real prepubescent child and the child is involved in a sex act, witnessing a sex act or the material is focused/concentrated on the anal or genital region of the child.

  2. Category 2: Other child abuse material which is illegal in New South Wales but does not fit inside the “Category 1” criteria described above. This includes material depicting a person who is, appears to be or is implied to be a child and is depicted in a way that reasonable persons would regard in all the circumstances as offensive and who: is a victim of torture, cruelty or physical abuse, or is engaged in or apparently engaged in a sexual pose or sexual activity, or is in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity or is exposing the genital area or anal area or the breasts of a female child.

  1. The following items contained the following material, all of which, depicted RR:

  1. On the SD card X…792: 336 images and 30 videos. The images are a mixture of Category 2 child abuse material and other images. 15 of the videos are Category 2 child abuse material.

  2. On Kenny’s mobile phone X…198: 3,859 images and videos. Approximately half of these files are category 2 child abuse material.

  3. On Kenny’s hard drive X…794: 1,951 images and 225 videos. Approximately 75% of these files are category 2 child abuse material. These files are duplicates of the material found on Kenny’s mobile phone.

  1. The child abuse material included images and videos which depicted the following things:

  1. Images of RR, focused on her breasts and vagina (covered by bra/underwear);

  2. Videos of RR taking her clothing off until she is completely naked;

  3. Videos depicting RR’s vagina as she masturbated;

  4. Videos of RR with breasts exposed, pinching her nipples and applying clamps to them;

  5. Images showing RR in underwear and also naked with words written in texta on her body including “I love daddy”, “sirs property”, “cum here”, “daddy”, “property” and “daddy’s little fuck slut”; and

  6. Images showing RR self-harming by cutting and scratching her skin.

Sequence 12: Possess pistol without authorisation

  1. A police expert examined the replica pistol found in the offender’s bedside table and determined it to be an “imitation pistol” for the purposes of the Firearms Act.

  2. Police records indicate that the offender did previously hold a firearms licence but it expired on 28 March 2000. The offender was not authorised to possess the replica pistol at the time he was in possession of it.

Evidence

  1. Before me are 2 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

  1. Charge Certificate;

  2. Form 1;

  3. Signed Agreed Facts (as above);

  4. Criminal Record;

  5. Custodial Record;

  6. Photograph of pistol seized from the offender’s home (subject to count 12); and

  7. Agreed Facts on Sentence for H21006136.

  1. Exhibit 2 is a bundle of documents prepared on behalf of the offender which includes:

  1. Report of Dr Olav Nielssen, psychiatrist, dated 14 July 2020;

  2. Letter from Mrs Johanne Kenny;

  3. Letter from Mr Nils Kenny;

  4. Letter from the offender’s partner; and

  5. Letter from Ms Leanne Parker.

Exhibit 1

  1. I will now summarise some of the documents which have been placed before me.

  2. In 2003 the offender was convicted and sentenced to a term of imprisonment for having sexual intercourse with a person over 14 and under 16 years of age. In 2004 the offender received a section 9 bond for the possession of child pornography.

Exhibit 2

  1. Dr Nielssen interviewed the offender via audio-visual link in July 2020. The offender said that he intended to plead guilty to all offences although he said that the firearm was “a broken toy gun my grandmother gave me when I was a kid… that is why I kept it”. When asked about how the offending occurred, he stated that he was going through a stressful time as he was out of work, looking for his own place and that his father had been terminally ill and then died.

  2. Mr Kenny stated that he was in a relationship of thirteen years, and that his partner had mental health issues including depression, possible bipolar disorder and post traumatic stress disorder (PTSD).

  3. Mr Kenny stated that when he started talking to RR he “went into a fantasy world.” When asked if he considered whether communication of that kind with a thirteen or fourteen year old was illegal or potentially harmful, he said “it did not start out that way… I should not have let it go that way.” He then stated that he does “like them younger… pretty much all ages.” He said that he never had any intention of actually meeting up with the child.

  1. When asked about the breaches of the CPR, Mr Kenny stated, “I don’t know… maybe it was pushing the boundaries… some of the breaches were because of what I had… like WhatsApp… I did not think it was a breach… I was just using it to communicate with people I knew”. The offender stated that being on the CPR was stressful, that it was difficult to get to the police station at the required times and that he had to take time off work to report. He denied feeling any resentment about being on the CPR. He stated that he had a high libido when he was younger but that it had declined due to his diabetes. He denied any addiction to pornography and stated that he did not seek out images of underage children but rather that they were sent to him by the child with whom he was communicating. Mr Kenny confirmed that he knew the child was thirteen when they began communicating and that she had her fourteenth birthday while they were communicating.

  2. Mr Kenny stated that after his family went through financial hardship, he lived with his grandmother in crowded conditions from ages 12 to 19. He did not report any neglect or trauma during his upbringing. He also did not report any treatment with psychotropic medication or any contact with mental health services prior to his charges. Looking back, he said that he believes he went through some periods of depression including when his father died and at about the time he initiated communication with the victim. The offender has diabetes, arthritis and sciatica. He said that he received injections of long acting insulin weekly. The offender reported some periods of heavy drinking in social settings in early adult life, but stated that recently his alcohol intake was quite low. He denied use of cannabis or other illegal drugs.

  3. Mr Kenny grew up in the eastern suburbs of Sydney and completed a diploma of accounting. In recent years, he mainly worked in the family business and struggled to find other work. He acted as his father’s carer during the last six months of his life. He reported three significant relationships, including his current partner whom he met in 2006. When asked about his plans for the future, he said that he hoped to return to work in accounting and “not take things for granted… remind myself that I don’t want to put anyone else through what I have put this girl through… seeing somebody so I don’t do this again.”

  4. Dr Nielssen was of the opinion that the offender did not meet the accepted criteria for the diagnosis of any psychiatric disorder. There was a possibility that the offender has a disorder of abnormal sexual interest (a paraphilia), such as heterosexual paedophilia. With regards to future sexual offending, in Dr Nielssen’s view, the history of a second similar offence after a gap of some 15 years, suggests enduring attraction to adolescent girls. Dr Nielssen believes that the offender has a low to moderate risk of reoffending according to the Static-99R. As the offender reported some benefit from past sexual offender counselling, in Dr Nielssen’s opinion, he should be referred to further counselling upon his release.

  5. Mrs Kenny, the offender’s mother, stated that she did not realise how much the offender’s father’s death affected his judgment. She said that the offender is a caring, loving son and brother, who has a loving and supportive family who will ensure that he gets treatment so that this does not happen again. She stated that after his father’s death, she noticed that the offender became withdrawn, and his family broached the subject of him needing help prior to his arrest. She says that Mr Kenny has apologised to his partner, brother and mother for his stupidity in seeking a fantasy world rather than dealing with his problems. He acknowledges that his actions were not right and that he needs help and therapy whilst serving his sentence and upon release.

  6. Mr Nils Kenny, the offender’s brother, stated that he is aware of the charges. Whilst he is disappointed, he will continue to care and support the offender during his incarceration and upon release and encourage him to continue receiving treatment.

  7. The offender’s partner stated that the offender has struggled with his father’s death, to the extent that he contemplated ending his life. She said that the offender has been very supportive. She believes that with regular therapy the offender will not have another “mental snap” again.

  8. Ms Parker, the offender’s sister in law, stated that she is willing to support the offender and his partner in any way possible with his ongoing treatment.

Offender’s Evidence

  1. The offender gave evidence before me. He stated that he and his mum had been the primary carers for his father before he died. He said that his father’s death was hard on him and that some of his close friends and family observed that he became depressed following the death. He has type 2 diabetes and a burst blood vessel in his eye that require injections to stop him going blind.

  2. The offender accepted that he knew the age of the child, that he used sexualised language with her and that he requested images of her. Upon reflection, he stated that besides being illegal, what he did was morally wrong and that he should not have done it. He said “I should have known better. I am deeply sorry for the pain, embarrassment, anxiety and depression this would have caused her, her family and my family.” He said that he had no intention of ever meeting up with the child and does not want to put anyone else through that again.

  3. Mr Kenny said that his family will assist him with rehabilitation and that he plans to seek treatment when released from custody. He plans to do the CUBIT program for sexual offenders whilst in custody, the aim of which is to help offenders understand that what they did was wrong and to rehabilitate them so they do not re-offend. With respect to the pistol, the subject of sequence 12, he stated that it was a gift from his grandmother when he was 9 or 10 years old and that he kept it for sentimental purposes.

  4. During cross-examination, the offender stated that he did not realise that he had to notify the register when he used apps that were “18+”. He could not identify why the child’s age appealed to him. He said that he took responsibility for his actions. He said no blame should fall on the victim, but solely on him. He stated that overall, he does not have an interest in girls under 16, but on this occasion he did. He said that he should not have called the victim a whore, but that she had asked him on occasion to call her names to which she responded positively. He enjoyed calling her names and making her act as his slave. He said that he was living a fantasy, but that he had crossed a line by taking it to a sexual nature rather than leaving it as a friendship.

  5. In my opinion, the offender gave evidence candidly. However, his responses to questions displayed a limited insight into his offending, to which see below.

Objective Seriousness

Failure to comply with reporting obligations

  1. Three of the “fail to comply with reporting obligations” offences (sequences 4, 5, and 7) involve the offender registering as a user of social media applications (Kik, Meet Me and Skout) that could have facilitated access to, and contact with, girls under 16 years of age. In fact, the offender managed to contact the victim RR using a similar app known as “Whisper”. One of the “fail to comply” offences (sequence 8) involved physical contact with a 3 year old girl who was the niece of the offender’s partner. The Crown submits that the “fail to comply” offences demonstrate a contumacious attitude to the law, as the offender knowingly and defiantly breached the order.

  2. It was accepted by counsel for the offender, Mr Wilkinson, that each of the ‘fail to comply with reporting obligation’ offences must be regarded as serious breaches when viewed objectively, as they amount to a fundamental breach of the offender’s reporting obligations. He conceded that the offender used these online chatrooms to maintain contact with and manipulate the victim. He submitted that this type of breach goes to the heart of the protective nature of the reporting conditions in the Act and must therefore be regarded as serious. It was submitted that each of counts 1,2 and 3 approaches the middle of the range of objective seriousness for such offences. However, Mr Wilkinson submits that count 8 is in a different category and is less serious in nature. As this contact with a child was episodic and arose in a family social setting, Mr Wilkinson submits that the offending was at the low range of objective seriousness.

  3. Both the Crown and Mr Wilkinson agree that the offending for counts 1,2 and 3 were at the midrange of objective seriousness, and I so find. In my view, taking into account the submissions above, and in particular that the offender had personal contact with a child, the objective seriousness of count 8 falls just below the mid-range. In coming to those conclusions, I take into account the legislative yardstick of the maximum penalty.

Possess Child Abuse Material

  1. The child abuse material offence is closely connected to the grooming offending. The material was obtained as a direct consequence of the cybersex relationship with RR. I find that the material was possessed for the purpose of the offender’s sexual gratification. Further, the Crown says the continued possession of the images and videos and the fact that they were transferred onto an SD card and a hard drive increases the criminality. The Crown submits that the large quantity of Category 2 images and videos puts this offending above the mid-range of objective seriousness.

  2. Mr Wilkinson submits that the images involved only the child complainant who sent him sexualized images arising from their communications. He concedes that the number of images is substantial. However, he submits that the images were not transmitted or disseminated to others and the acquisition of the images did not involve any payment. He says that there was limited sophistication or planning employed by the offender in acquiring the material, and that he acted alone in obtaining the material directly from the child. He did not possess any other images of pre-pubescent or underage children. Mr Wilkinson submitted the offending is below the mid-range of objective seriousness.

  3. Mr Wilkinson further submits that there is substantial overlap between the criminality associated with the section 66EB offences and the possession of child abuse material, as all the images depicted were of the same child victim, being the subject of the section 66EB offences and arose due to their relationship. Accordingly, he says the sentences ought to be largely concurrent.

  4. In Minehan v R (2010) 201 A Crim R 243 at [94], the Court of Criminal Appeal identified the following factors as being relevant to an assessment of the objective seriousness of a range of offences including possessing, disseminating and transmitting child pornography:

  1. Whether actual children were used in the creation of the material.

  2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

  3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

  4. The number of images or items of material. In a case of possession, the significance lying more in the number of different children depicted.

  5. In a case of possession, the offender’s purpose, i.e. whether it was for his own use or was for sale or dissemination.

  6. In a case of dissemination or transmission, the number of persons to whom the material was disseminated or transmitted.

  7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition, dissemination or transmission.

  8. The proximity of the offender’s activities to those responsible for bringing the material into existence.

  9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

  10. Whether the offender acted alone or in a collaborative network of like-minded persons.

  11. Any risk of the material being seen or acquired by vulnerable persons, particularly children.

  12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

  13. Any other matter bearing upon the objective seriousness of the offence.

  1. In this case, an actual child, aged between 13 to 14 years of age was used. This factor increases the objective seriousness. The material included graphic images and videos including RR masturbating, applying clamps to her nipples and various other sexual acts. I also find that some of the material demonstrated cruelty and harm, for example, images of RR self-harming. It is not disputed that the number of images are substantial and this serves to elevate the objective seriousness. It is further accepted that the images were not disseminated and that there was no payment or material benefit. The offender received the material directly from RR and there is no evidence of the offender utilising sophisticated means or any degree of planning. There was no risk that any vulnerable person would inadvertently access the images.

  2. Looking at the possess child abuse material only, taking into account the quantity and category of the images and their transfer, I find the offending to be at the midrange of objective seriousness. I take into account that the possession of child pornography creates a market for the continued corruption and exploitation of children, and that there is a paramount public interest in promoting the protection of children as the possession of such material is not a victimless crime: Burton v R [2020] NSWCCA 127 at [26]. I also take into account the legislative yardstick of the maximum penalty.

Grooming

  1. Both grooming offences involved the offender, being a 48 year old man with previous child sex and child pornography convictions (which is agreed aggravates the offending), exposing the victim to indecent material with the intention of making it easier to procure her for unlawful sexual activity. It is one course of activity broken up by the victim turning 14 years of age.

  2. The Crown submits that the offender:

  1. Engaged a 13 year old school girl in a cybersex relationship for a period of about 12 months. The relationship continued until the offender’s arrest by police. By that stage the victim was 14 years old;

  2. Preyed on the victim’s insecurities. He gained her trust and confidence for the purpose of sexual exploitation and sexual gratification;

  3. Effectively brainwashed the victim into believing that she was in a genuine relationship involving mutual love and trust;

  4. Manipulated the victim by normalising sexual depravity. The manipulation was sophisticated in that it involved an incremental escalation of intimacy. The offender pretended to take an avid interest in the victim’s daily life and then exploited the emotional connection with the victim by introducing to her an escalating degree of indecent material;

  5. Gained sexual gratification by sending sexual images and videos of himself to the victim;

  6. Procured the victim to engage in sexual activity, including masturbation, shaving off her pubic hair, and sexualised acts of self-harm such as applying clamps to her nipples;

  7. Procured the victim to record those sexual acts as images and videos and then send them to the offender (although I do not double count the possession of this material);

  8. Escalated the cybersex relationship into the area of fetish and BDSM, such that the victim became the “slave” of the offender. He reinforced her status as a “submissive slave” and his role as a “dominant father figure” by sending the victim inscribed “dog tags” to wear around her neck. The victim acted out her role as a slave by wearing dog tags and swearing a ‘slave oath’ on video. The offender also encouraged the victim to write on her body various slogans such as “daddy’s little fuck slut” and record these images and send them to the offender;

  9. Engaged the victim in almost constant communication by messaging, such that the cyber relationship was a continual and dominant presence in her life. There were more than 60,000 communications during the cybersex relationship. A typical day involved hundreds of text messages, often during school hours, routinely continuing until the moment of the victim going to sleep and resuming the moment she woke up in the morning; and

  10. Arranged to meet with the victim on several occasions to engage in sexual activity. These meetings never took place. However, there was constant reference to the offender looking forward to engaging in unlawful sexual activity with the victim.

  1. Other relevant factors include:

  1. The 36 year age difference between the offender and the victim;

  2. The duration of the cybersex relationship (over 1 year), which it was submitted was a substantial proportion of the victim’s formative years;

  3. The victim was at the younger end of the age range of the 14-16 year age bracket with respect to the count of groom child aged between 14 and 16 years of age;

  4. The victim was a real child. This was not a case involving a fictitious victim or entrapment by undercover police; and

  5. The offending continued until detected by police.

  1. Furthermore, the Crown submits the volume and intensity of messages exchanged during the cybersex relationship are of real significance. More than 60,000 messages were exchanged over a period of approximately 12 months, with an average of more than 189 messages being exchanged per day.

  2. The Crown says that the objective seriousness of both counts of grooming is at the high end of the scale of seriousness for a grooming offence involving a single child victim. The Crown submits that it is difficult to imagine a more serious case of child grooming involving a single child victim.

  3. Mr Wilkinson submits that the criminality of each offence comprehends and reflects the criminality of the other. Accordingly, he submitted that largely concurrent sentences for each grooming offence should be imposed. He said that the offending was at the the middle of the range of objective seriousness for such offences.

  4. Mr Wilkinson did not submit that the matters referred to going to the objective seriousness of both grooming charges was wrong. Indeed in my view, the agreed facts disclose the presence of these factors over the entirety of the period.

  5. Mr Wilkinson submitted that had the victim not turned 14 years of age during the currency of the behaviour, the offender would have been charged with only one offence of grooming, a proposition with which the Crown did not disagree.

  6. I do not take into account the possession of the child pornography when looking at the objective seriousness of this offending, as that would amount to double counting. I do take into account all the matters I have already referred to. I also take into account the legislative yardstick of the maximum penalty and the standard non parole period for each offending. In my opinion, both counts fall above the midrange but not at the high range of objective seriousness.

  7. I accept that there will have to be partial accumulation between the counts, as the offending comprises one long event of uninterrupted actions.

Pistol

  1. The pistol had been given to the offender, when a child, by his grandmother and was kept as a keepsake in recognition of it having been gifted to the offender by his grandmother. The Crown did not cross examine the offender on his evidence about the pistol. It is accepted by both parties that this offence is in the low range of objective seriousness. Both parties agree that it is appropriate for me to convict the offender and impose no further punishment.

Aggravating Factors

  1. It is agreed that the offender’s criminal record is a statutory aggravating factor on sentence pursuant to section 21A of the Crimes (Sentencing Procedure) Act 1999 (‘the Sentencing Act’).

Subjective Circumstances

Prior Criminal History

  1. The offender has a prior criminal record for similar offending. The Crown submits, and it is not in dispute, that he is not entitled to any leniency on account of his criminal history.

Plea of guilty

  1. It is accepted that the offender’s guilty plea justifies a discount of 25%.

Time in custody/ Backdating

  1. The offender has been in custody in respect to these offence from 27 February 2020, solely referrable to this offending, and I will backdate his sentence to that date.

General Deterrence and Denunciation

  1. The Crown submits that offending of this nature calls for condign punishment. He says that the offending in the present case was deliberate, repugnant and depraved. The offender knowingly defied legal restrictions that have been put in place to protect children in the community and had significantly offended.

  2. It is conceded by the offender that the principles of general deterrence and denunciation must carry significant weight in the appointment of an aggregate sentence. Mr Wilkinson said that offences involving sexually predatory conduct towards children have general deterrence as a primary sentencing consideration. I observe that courts have long recognised the harm done to child victims of cybersex offences.

  3. General deterrence and denunciation clearly have significant roles to play in this sentencing exercise as the offences are serious. As was observed in R v Dagwell [2006] NSWCCA 98 at [41] by Howie J, (Beazley JA and Adams J agreeing):

Users of Internet chat rooms should be well aware that crimes committed in such circumstances are treated with great concern by the criminal justice system and will be dealt with severely. Children must be protected from themselves and from those who prey on their vulnerability by gaining access to them through means such as that used by the respondent. The only way that this policy can be achieved is by the courts imposing condign punishment upon those convicted of such offences in the hope that others who are minded to act in the same way might fear the consequences if they are caught.

Personal Deterrence and Prospects of Rehabilitation

  1. As the offender has a record of similar offending, personal deterrence clearly has a role to play.

  2. So far as rehabilitation is concerned, the Crown submits that the offender has indicated an inability to recognise the seriousness of his offending. He said that the offender minimised his conduct and failed to express any insight into the seriousness of his offending. He submitted that there was no evidence of genuine remorse, with the offender indicating that “I had a lot going on... I was going through a stressful time,” that he was “being stupid...being lazy”, and that there were “a few things that made life difficult”.

  3. Dr Nielssen indicated that the recidivist nature of the offending “suggested an enduring attraction to adolescent girls”. The Crown submits that given the offender’s previous convictions, his demonstrated tendency to have a sexual interest in girls aged under 16, and his contumacious offending in breach of his reporting obligations, the offender’s prospects of rehabilitation must be low. At best, the Crown submits that the offender may be viewed as someone with evolving insight.

  4. It was submitted by Mr Wilkinson that the offender’s prospects of rehabilitation are not unfavourable. His willingness to seek assistance and undertake treatment programs demonstrated an insight into his offending and genuine contrition. He noted the opinion of Dr Nielssen that the offender has a low to moderate risk of reoffending, and that the offender would benefit from sexual offender counselling which should continue after his release from custody. I note that it is uncontroversial that the offender will have significant family support available upon his release from incarceration.

  5. In my opinion, to paraphrase Mahatma Gandhi, no person is beyond redemption. Whilst I cannot find that this offender’s prospects of rehabilitation are good and that he is unlikely to re-offend, in my opinion he does have some degree of evolving insight. While it is my hope that the offender continues to gain insight into his offending and achieves rehabilitation, in my view his current prospects of rehabilitation are guarded.

Hardship in prison

  1. The offender was in custody during the COVID pandemic which resulted in physical isolation from the outside world and the restriction of visitation rights. Mr Wilkinson submits that the more onerous conditions of incarceration due to the pandemic nonetheless should be taken into account in sentencing. Those conditions are apparently ongoing.

  2. Further, I note that during his incarceration, the offender’s treatment with prescribed medication (eye injections) was interrupted. Accordingly, the offender did not have access to therapeutic intervention for several months, which apparently caused some deterioration to his vision and general wellbeing. I take these matters into account to synthesise on sentence.

Form 1

  1. As indicated earlier, I have been asked to take 4 offences into account on a Form 1 basis when sentencing the offender for sequence 10, the details of which I have already set out above. In this matter, this has the effect of increasing the sentence that would otherwise have been imposed. In this case, given what I have already said about general deterrence, the increase operates to recognise the community’s entitlement to retribution for the Form 1 offences, although the focus remains on the primary offence. I have taken these offences into account and I have carefully considered s33 of the Sentencing Act and the judgment of Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (No 1) of 2002.

Threshold

  1. Having considered all the possible alternatives, I am satisfied that the section 5 threshold of the Sentencing Act has been crossed with respect to all offences other than the pistol offence. Due to the seriousness of the offending, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Totality

  1. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle requires me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending.

  2. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative. The ultimate sentence must be appropriate to the totality of the offender’s offending and his personal circumstances, and must not be crushing.

  3. In my opinion, there must be partial accumulation.

Special Circumstances

  1. The Crown submits that there are no factors that warrant a finding of special circumstances. The offender, he says, has no mental health issues, drug or alcohol issues, this is not his first time in gaol and there is no risk of institutionalisation. Furthermore, he submitted that the offender has only guarded prospects of rehabilitation.

  2. It is submitted by the offender that a finding of special circumstances should be made on the basis of the offender’s prospects of rehabilitation, his willingness to seek treatment whilst in custody and continue treatment on his release. The offender and the community, it is submitted, would benefit from additional supervision and assistance with his rehabilitation upon release to assist in his reintegration to the community. I agree that special circumstances apply and that the offender would benefit from a longer period to reintegrate himself in the community.

  3. I make a finding of special circumstances and I have deviated to a ratio of 70%.

Sentence

  1. I have had regard to the various cases provided to me by the parties: Tector v Regina [2008] NSWCCA 151, Small v R [2020] NSWCCA 216, Lyons v R [2017] NSWCCA 204, Milliner v R [2019] NSWCCA 127, and Burton.

  2. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offending and this offender highlight how the various purposes of sentencing pull in competing directions.

  3. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

  1. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25).

  2. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act. I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.

  3. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 8 years. I impose a non-parole period of 5 years, 7 months.

  4. As required by s53A(2)(b) of the Sentencing Act, the indicative sentences I would have imposed are as follows:

  1. For sequence 4, fail to comply with reporting obligations, I would have imposed a penalty of 14 months, taking into account the plea of guilty;

  2. For sequence 5, fail to comply with reporting obligations, I would have imposed a penalty of 14 months, taking into account the plea of guilty;

  3. For sequence 7, fail to comply with reporting obligations, I would have imposed a penalty of 14 months, taking into account the plea of guilty;

  4. For sequence 8, fail to comply with reporting obligations, I would have imposed a penalty of 12 months, taking into account the plea of guilty;

  5. For sequence 9, possess child abuse material, I would have imposed a penalty of 2 years, taking into account the plea of guilty;

  6. For sequence 10, groom child aged between 14 and 16, I would have imposed a penalty of 4 years with a non-parole period of 2 years and 6 months, taking into account the plea of guilty; and

  7. For sequence 11, groom child aged under 14, I would have imposed a penalty of 5 years with a non-parole period of 3 years, taking into account the plea of guilty and the matters on the Form 1.

  1. For sequence 12, possess pistol without authorisation I find the offence proved, but pursuant to section 10A of the Sentencing Act, having regard to the circumstances of this offending, I am satisfied that it is inexpedient to inflict any punishment.

Orders

  1. Mr Kenny, please stand.

  2. You are convicted of the following offences:-

  1. Sequence 4, failure to comply with reporting obligations;

  2. Sequence 5, failure to comply with reporting obligations;

  3. Sequence 7, failure to comply with reporting obligations;

  4. Sequence 8, failure to comply with reporting obligations;

  5. Sequence 9, possess child abuse material;

  6. Sequence 10, groom child aged between 14 and 16;

  7. Sequence 11, groom child aged under 14; and

  8. Sequence 12, possess pistol without authorisation.

  1. For sequences 4, 5, 7, 8, 9, 10, and 11, you are sentenced to an aggregate term of imprisonment for 8 years and a non-parole period of 5 years, 7 months. Your sentence will commence on 27 February 2020 and your non-parole period will expire on 26 September 2025. Your head sentence expires on 26 February 2028.

  2. For sequence 12, possess pistol without authorisation I find the offence proved, but pursuant to section 10(1)(a) of the Sentencing Act, having regard to the circumstances of this offending, I am satisfied that it is inexpedient to inflict any punishment.

  3. Do you understand the orders I have made?

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Decision last updated: 15 February 2021

Cases Citing This Decision

0

Cases Cited

8

Statutory Material Cited

4

Burton v R [2020] NSWCCA 127
Lyons v R [2017] NSWCCA 204
Markarian v The Queen [2005] HCA 25