R v Kenyon

[2018] NSWDC 458

District Court

New South Wales

Medium Neutral Citation:	R v KENYON [2018] NSWDC 458
Hearing dates:	22 November 2018
Decision date:	22 November 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Pursuant to s20(1)(b) of the Crimes Act 1914 the offender is sentenced to a term of imprisonment for 2 years and 3 months to commence on 11/8/17 and to expire on 10/11/19. The offender is to be released on 10/12/18 upon entering into a recognizance in the sum of $2000 self- surety and on the condition that he be of good behaviour for the balance of term of 11 months. I make order as per the Forfeiture Order handed up in court today, signed by me and placed on the court file.
Catchwords:	Criminal law – Commonwealth - particular offences - offences relating to postal services, telecommunications and computers - sentence - carriage service sexual offences involving children – using a carriage service to procure person under 16 – online conversations via text based chat website, Skype & mobile phone - subjective matters
Legislation Cited:	Crimes Act 1914 Criminal Code (Cth) 1995
Cases Cited:	Hili v The Queen; Jones v The Queen [2010] HCA 45. R v Poynder [2007] NSWCCA 157
Category:	Sentence
Parties:	Regina John Alexander Kenyon
Representation:	Counsel:   Solicitor: Crown: Ms E Burr Defence: Mr A Tiedt
File Number(s):	2017/244996

Judgment

1. HIS HONOUR: John Kenyon appears for sentence in respect of a single offence of using a carriage service to procure persons under 16 years of age contrary to s 474.26(1) of the Criminal Code (Cth). The maximum penalty provided is 15 years’ imprisonment.

2. The facts are agreed and are as follows, I indicate that there are extensive text and oral conversations recorded in the Agreed Facts and I do not, with some exceptions, intend to read those onto the record.

BACKGROUND

3. On 3 August 2017, investigators from the New South Wales Police Force posing as an Assumed Online Identity of a 13 year old female were engaged in an online conversation with the offender on a text-based chat website, “TeenChat”, after receiving a message from an online user named, “Teacher”. “Teacher” advised that he was a 28 year old male travelling throughout Australia on holidays from the United Kingdom, and asked the pretend juvenile where in Australia she was located. When she advised that she was in Sydney, the offender advised that he would also be in Sydney later that month.

4. On the same day, Skype details were exchanged, and the conversation moved to the Skype Chat application, the offender then using the name “Kenny”. In the first conversation on TeenChat, the offender had said, “Are you like most Ozzy girls, skinny but with great boobs? LOL”. Police replied: “LOL I’m only 13 so I guess my bobs aren’t really great”.

The offender: “What bra size are you? Pic.”

Reply: “aybe chat summore b4 a pic? is tat ok”?

Offender: “Yeah that’s cool I’m a little older 28 that ok?”

Later in the same conversation, the offender sent the following message,

“You got a bf or done stuff with boys yet?”

5. As previously indicated the conversation continued on by way of Skype.

6. On 8 August 2017, there were a number of Skype conversations between them also continuing on 9 August 2017. In one of the conversations the pretend 13 year old said, “mums workin Friday so she wont know if I skip skool”. The offender replied: “That’s good then...I’m sure we can find something fun to do for a few hours at least...Wouldn’t want you getting into trouble LOL”.

7. A little later in the same conversation, he said, “We don’t have to do anything you don’t want too...but yeah, I think I will want to give you a little kiss at least LOL” followed by two smiley faces.

8. Later the pretend 13 year old said, “u won’t be upset if I’m not very good at kissing will u?” And he replied: “Don’t stress or worry about how good you are at kissing! ... I’ll just be thankful and very lucky if I’m the first one to kiss you”.

9. On that same date, there was a telephone call between them with further discussion about her skipping school to meet him at Westmead. Being aware that she had a mother, he suggested to her, that she should pretend that she was going to school and then wait for him to come and pick her up.

10. On 10 August 2017, in a series of further conversations, he eventually asked her, “Is your house going to be empty tomorrow then? Where did you want me to meet you at yours”? She responded: “yeah it will be afta mum leaves 4 work … yeah if that’s ok? I can txt u the addy once mum leaves” followed by a smiley face. The offender replied: “That’s fine by me gorgeous”.

11. There is further conversation in relation to which there were references to kissing. Later the offender said, “And you asked me if I would kiss you … and I’m picking you up in my campervan...; oh you could just make me breakfast and let me use your shower”. She replied: “So is there other stuff ud wan2 do … u mean at my house”? He said: “Know where else there is a shower and good breakfast”. Followed by a smiley face.

12. Although I have not referred to most of the actual conversations, I have no hesitation in finding that the offender was indulging in a form of grooming designed to eventually end in his meeting up with someone who he clearly believed from the conversations was a 13 year old female.

13. On the morning of 11 August 2017, there were further text messages exchanged in which an address at Westmead was provided to him. At approximately 11.10am on that date, detectives from the Child Exploitation Internet Unit observed a white campervan heading towards the nominated address. Police intercepted the van and spoke to the offender, who, under caution, advised that he had attended the address to drop off a rental van, and shortly thereafter that he was there to meet a girl aged 16 who he had met online.

14. The offender was placed under arrest and conveyed to Parramatta Police Station, during which time he nominated the girl’s age as 13. On the same date, the offender participated in an ERISP where he made full admissions to being the person responsible for initiating and communicating with the pretend 13 year old over TeenChat, Skype and mobile phone, and admitted to seeking and transmitting images of her and himself via Skype. He made the following admissions to police:

• That he provided his age as 28 years when he was in fact 35 years of age.

• That she provided her age as 13 years old.

• That he continued communicating with her and asked her for photographs of herself, knowing this.

• That the chats were online fantasy due to his curiosity and loneliness at the time.

• That he thought that the pretend female was an attractive young woman.

• That he knew that he should not have done what he did.

• That he arranged to meet the pretend 13 year old because in his head it was still all make believe.

• That he does not have a sexual interest in children.

• That he said certain things to the pretend female because “It’s like jumping out of a plane or doing a bungee jump. It’s that edge of, edge of danger thing”.

15. I note that the last quote from him indicates that he realised that what he was doing may have serious consequences, which is inconsistent with his conduct being an “online fantasy”.

16. The campervan driven by the offender was searched. While a number of electronic devices were located which were subjected to a forensic analysis, no material of interest was located.

17. As to the offender’s antecedents, he is currently 35 years of age and was aged 34 at the time of the offending. He is a citizen of the United Kingdom, and has been in custody since his arrest on 11 August 2017. He had only been in Australia for a short period of time, presumably on a tourist visa and had rented a campervan as part of his trip. I accept that he had entered Australia in Queensland, hired the van and was anticipating leaving Australia via Sydney approximately three days after his arrest.

18. He has no history of any other offending in Australia, and he has no history of offending of any nature in the United Kingdom. The conduct took place over a period of approximately eight days, and involved a series of acts of the same or similar character, committed repeatedly. In the circumstances, the conduct cannot be regarded as being spontaneous or impulsive because it was continued, and in my view, clearly constituted an attempt to arrange an engagement with a young female, expressed by her to be inexperienced, for the purpose of sexual contact.

19. The offender gave the explanation to the police that it was an online fantasy due to his curiosity and loneliness at the time. I have no difficulty in understanding that as a single tourist who had recently come to Australia, fleeing from a dysfunctional relationship, either being aware when he left the United Kingdom or shortly thereafter that his ex-partner had fallen pregnant to him, was both lonely and bored while in Australia. That is however not an excuse for indulging in the conduct that he did indulge in.

20. In my view, a likely part of the reasoning behind the commission of this offence was probably the feeling of security that he was by himself in a foreign country, known only by the nickname of “Teacher” and/or “Kenny” with a stated wrong age of 28, that is, there was little detail at least known to the pretend female as to who he was, with the exception of any communicated photo of the offender, and he had the security of knowing that at the time that he attended in Sydney he was in fact due to leave Australia within a period of three days.

21. Accordingly, he may have felt some safety in the fact that any intended interaction of an untoward nature between himself and her would occur in circumstances where it would be difficult to determine who he was, and to apprehend him or charge him in relation to any such contact.

22. However, in relation to what contact he proposed, there is nothing more than the references to kissing, and what in my view in the messages is the hint of wanting something further.

23. In my view, the offender’s conduct was objectively serious. In the matter of R v Poynder, at first instance Norrish DCJ stated:

“Issues of general deterrence and personal deterrence loomed large in the sentencing exercise to ensure that persons who engage in this conduct are made an example of to others and to try and prevent further corruption of children and to ensure that the prisoner is prevented and/or deterred from such conduct or even considering such conduct in the future.”

24. In dealing with the appeal in that matter, R v Poynder [2007] NSWCCA 157 at [95] to [97] Rothman J referred to the legislative intent behind the legislation:

“The offence in question is a legislative attempt to regulate and prohibit the use of modern technology in abuse of children...

...the legislature with this provision is seeking to implement society’s abhorrence of the practice of inducing children to engage in inappropriate sexual behaviour. That process includes not only the direct and physical abuse of children but the grooming of children to accept more readily inappropriate sexual activity, even though a perpetrator of an offence of this kind may have no intention of acting out the fantasy or fantasies in which she/he is indulging.

The conduct has a significant deleterious impact upon any child participating in it.”

25. I accept that both the sentiments of Norrish DCJ and Rothman J are entirely appropriate to take into account in relation to this particular matter.

26. As to subjective matters, the offender is approximately 35 years of age. He was born and raised in the United Kingdom. There are a number of documents tendered on his behalf relating to his subjective circumstances, being a psychiatric report of Dr Olav Nielssen, dated 2 October 18, the offender’s curriculum vitae and medical documentation in respect of the offender’s father, Stephen Kenyon, dated 28 August 2018 and a character reference from his father, dated 9 October 2018.

27. There are further character references from Clara Kenyon, his mother, dated 8 October 2018, Sarah Clarke, an older sister, dated 1 October 2018, James Dibnan, an uncle, dated 5 October 2018, Marilyn Tandy, the mother of a close friend of the offender, dated 24 September 2018, Peter Shaw, a friend of the offender’s parents and the offender’s godfather, dated 23 September 2018, Susan Banks, an aunt, dated October 2018, and lastly the offender’s brother‑in‑ law, Dean Clarke, dated 10 October 2018. I note in respect of Mr Clarke that he has attended from the United Kingdom, and has been present during the course of the sentence proceedings.

28. It can be generally said in relation to character references that the offender’s parents, siblings, relatives and friends all hold the offender in good regard, and variously find the offending is out of character. It is however the fact that in many of these matters that come before the court the offender is a person with no previous criminal history whose conduct has never been observed by friends, family or siblings. However, it is to his benefit that he has otherwise behaved himself in the community up to his present age without any form of offending. I have not yet referred to the character reference from the Chaplain of the Metropolitan Remand and Reception Centre, who speaks well of the offender. That reference is dated 15 November 2018. Without wishing to diminish the value or intelligence of Chaplain Cook, chaplains in custodial institutions are an easy mark for a supportive reference.

29. The offender’s CV indicates that he has held a number of responsible jobs over the years, and appears to have been largely fully employed throughout his adult life. He attended the Sharnbrook Upper School from 1995 to 2001 achieving three A levels and nine GCSEs, grades A to C. He also attended Newcastle University in the United Kingdom, obtaining a Bachelor of Arts in Sociology between 2002 and 2005, and he has also done what is referred to as SWAT training in 2015 with Blue Sky. I am unaware as to exactly what that involves, however, as previously indicated, he appears to have been generally and relatively in full-time employment since completing his education. I accept that all of his referees generally regard him well.

30. It has frequently been remarked that offences of this kind involving the internet, like offences involving the collection of child pornography have become increasingly prevalent with the ubiquitous nature of the internet, and such offences are typically committed by persons with little if any criminal history and that they are easy to commit and generally difficult to detect. The use of computers and mobile phones has significantly contributed to the ease with which such offences can be committed, and their prevalence.

31. It has been submitted by the Crown and accepted by Mr Tiedt on behalf of the offender that sentences of imprisonment are normally appropriate in relation to matters such as this. I accept that was an appropriate submission by the Crown and an appropriate concession by Mr Tiedt.

32. There are in this matter, in my view, no exceptional circumstances to take this matter out of what has been accepted by the parties as the expected requirement.

33. The offender entered the plea of guilty at the Central Local Court on 9 May 2018. I accept that that was a plea at the earliest opportunity. It was, however, a plea in the circumstances of what in my view was a very strong Crown case, all of the communications being the subject of recording, and the offender being intercepted on his way to the designated meeting location.

34. The offender has given evidence on sentence, and while a plea of guilty does not necessarily reflect remorse or contrition, I am prepared to accept in the circumstances that the offender, who up to this time had not committed any offences, was genuinely remorseful and contrite in relation to his detected conduct.

35. I accept that it is appropriate to provide a discount for the utility of the plea, and I have done so. As to the prospect of reoffending, I accept Dr Olav Nielssen’s assessment that he is a low to moderate risk of reoffending, and I also accept in the circumstances that this is now known to his family and friends, apart from being the subject of official records which will no doubt impact on him in the United Kingdom as well as here, that there is a low prospect of his reoffending in the future.

36. The Court, in imposing a sentence, is required to impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence, and to ensure that the person is adequately punished for the offence. I note in respect of the offender’s father that he has been diagnosed in approximately June of 2018 with pancreatic cancer, a particular cancer which is very difficult to treat and is normally in most cases terminal. His father at this time is still alive, but how long he may remain alive is a moot point. The medical report in respect of him indicates that he has had that metastatic pancreas cancer diagnosis since approximately September 2017.

37. The offender’s history as outlined by Dr Olav Nielssen, and as is evident form the character references that have been provided on his behalf, indicates he has had a supportive upbringing. He does not suffer from any mental or psychological illness. He has only very limited exposure in the past to prohibited drugs, and he does not have, although he has occasionally binge drunk in the past, a problem with alcohol. Indeed, there is nothing in his background which leads to any explanation for his conduct on this occasion except what I have referred to as isolation and boredom, together with as I perceive it, a sense of security, being an itinerant traveller of no fixed address in a foreign country.

38. I have been referred to a number of cases by the Crown and by Mr Tiedt on behalf of the offender. Individual cases are seldom of significant assistance to the Court in determining sentence. I have also otherwise looked at the statistics available through JIRS, and I am fully aware of the decision in Hili v The Queen; Jones v The Queen [2010] HCA 45.

39. Having taken all of those matters into account, I accept that there is no alternative other than a sentence of full-time imprisonment.

40. Accordingly, Mr Kenyon, would you please stand. You are convicted in respect of the offence of using a carriage service to procure a person under 16 years of age, contrary to s 474.26(1) of the Criminal Code (Cth). The term of the sentence is two (2) years, three (3) months to date from 11 August 2017. The full term of the sentence will expire on 10 November 2019. I am sorry, the sentence being less than three years, Madam Crown, I think I must make a recognisance release order.

BURR: Yes, that’s so.

HIS HONOUR: I order that you be released on the expiry of one year (1) and four months. That means that you will be released on 10 December 2018, that is, you will be home for Christmas, if you get the next flight. Do I need to set specific terms for the recognisance, Madam Crown?

BURR: Yes, your Honour.

HIS HONOUR: What would be the most appropriate terms of the recognisance release order?

BURR: Your Honour is required to set a period of good behaviour for the offender.

HIS HONOUR: He is to be of good behaviour for the balance of term, which is 11 months.

BURR: And an amount of the recognisance.

HIS HONOUR: To forfeit $2,000, but that need not be secured by way of deposit.

BURR: Yes, the recognisance itself in the amount of $2,000.

HIS HONOUR: Self in the amount of $2,000. Do you want the--

BURR: Yes, the Crown does seek a forfeiture order for the two mobile phones used by the offender in the commission of the offence.

HIS HONOUR: Yes, as I said this morning to the Crown from the Commonwealth in the last matter, I will make the order if you hand up the appropriate paperwork.

BURR: I hand up the forfeiture order in draft form.

HIS HONOUR: There is one in your bundle, I didn’t notice it.

BURR: I have a fresh copy for your Honour.

HIS HONOUR: I have one here; I can sign it.

41. I order pursuant to s 23ZD of the Crimes Act 1914 on the application of the Director of Public Prosecutions (Commonwealth), the following items are forfeited to the Commonwealth, being:

1. HTC mobile phone X0003062537 and

2. HTC mobile phone X 0003062538.

There is not really a lot of utility in such orders, frankly, Madam Crown, mobile phones are so cheap these days that they can readily be replaced.

BURR: It’s regarding the destruction of the device, which may contain material.

HIS HONOUR: That’s more or less on the basis of the device is itself offending, is it?

BURR: The Crown also hands up a sealed envelope marked “Private and Confidential” for the Court Registry.

HIS HONOUR: Yes, thank you. The sealed envelope can be placed on the file. Nothing else, Mr Tiedt?

TIEDT: No, your Honour, thank you.

Decision last updated: 21 February 2019