R v Keski-Nummi-Wilson
[2017] ACTSC 115
•18 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Keski-Nummi-Wilson |
Citation: | [2017] ACTSC 115 |
Hearing Dates: | 18 May 2017 |
DecisionDate: | 18 May 2017 |
Before: | Elkaim J |
Decision: | See paragraph [34] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to procure a person under the age of sixteen – using a carriage service to solicit child pornography |
Cases Cited: | Director of Public Prosecutions (DPP) v Boyles [2016] VSCA 267 Director of Public Prosecutions (DPP) (Cth) v Hizhnikov [2008] VSCA 269; 192 A Crim R 69 |
Parties: | The Queen (Crown) Thomas Bryant Keski-Nummi-Wilson (Offender) |
Representation: | Counsel Mr T Ellison (Crown) Mr S Whybrow (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Number: | SCC 99 of 2016 |
ELKAIM J:
The offender pleaded guilty to two counts in an indictment. The first count is that he used a carriage service to communicate with a person who was under the age of 16, with the intention of procuring that person to engage in sexual activity with himself. The second count is that he used a carriage service to solicit pornographic material.
The maximum penalty for both offences is 15 years imprisonment and/or a fine of $153,000.
In August 2015, the Australian Federal Police received information from the Federal Bureau of Investigation in the United States of America. The information concerned the offender being engaged in a relationship with a 12 year old girl who lived in America, who I will refer to as CB.
The police obtained records of internet conversations between the accused and CB. The content of these conversations and other material, which are described in the amended case statement, are the basis for the charges. The relevant communications between the offender and CB seem to have spanned the period between September 2014 and November 2014. Many of them contain very explicit sexual material.
In January 2015, the offender and his mother travelled to Hawaii where they spent some time with CB and her mother. There is no suggestion that, while in this location, any sexual activity took place between the offender and CB. It is also noteworthy that, after the trip, the messaging continued between the offender and CB but none of it was of a sexual nature.
The offender paid for the vacation in Hawaii and purchased gifts for CB and also made some cash payments to her by way of direct transfer.
Analysis of the offender’s telephone and computer revealed about 300 photographs of CB, most of them showing her sleeping.
Investigation by the FBI discovered a number of commonly used sexual aids, such as lubricant and massage oil, in CB’s bedroom, which had apparently been purchased for her by the offender.
When initially spoken to by the police, the offender acknowledged his contact with CB but denied it had any sexual content. This was plainly untrue.
The offender was born in 1991 so that he was 22 years of age when he was communicating with the then 12-year-old CB.
The offender was born in Sydney. He has a good relationship with his parents and siblings. His parents have continued to support him, notwithstanding his offending.
The offender was abused by a relative between the ages of 12 and 15. He was not able to disclose this information until seeing a psychologist some years ago. Although the relative has apparently admitted the abuse, he does not seem to have been punished for it.
The offender completed year 12. He has had a variety of jobs since leaving school, but is currently unemployed. Part of his employment has included working in a hospital as a wardsman. He lives with his parents. The offender suffers from agoraphobia and leaves the house only when it is essential to do so. He does not drink much alcohol and does not use illegal drugs.
The offender takes antidepressant medication and is consulting a counsellor to deal with depression and stress relating to these court proceedings. A report has been prepared by a psychologist, Ms Patch, which forms part of Exhibit 1. The psychologist notes that:
Children who have been abused, and in particular sexually abused, have greater difficulties with interpersonal relationships and especially trust, due to the betrayal of trust and violation of personal boundaries involved in child sexual victimisation. These factors increased his vulnerability to developing mental ill health.
The mental ill health referred to by the psychologist is her diagnosis that the offender suffers from a depressive disorder. She is of the view that such a disorder can impair a person’s ability to think appropriately. She says “as a consequence, there can be a strong relationship between depression and high risk behaviours.” A little later she continues:
It is therefore possible that Mr Keski-Nummi-Wilson turned to his online relationship to bury feelings of anger, shame, anxiety, and poor self esteem.
Ms Patch recommends that the offender continue with psychological treatment designed to help him gain insight into his behaviour, assist him to cope with his childhood experiences and help him to develop emotional strategies to deal with his self-confidence and attitude to relationships.
Offences of this type, involving the victimisation, humiliation and degradation of children, must always be taken very seriously by the courts. They necessarily suggest that a sentence of imprisonment is likely to be appropriate. Imprisonment is also a necessary component of the personal and general deterrence that must play a part in sentencing for these types of offences. At the same time, the sentencing process involves the court coming to a conclusion that imprisonment is the only option available.
The offender has no previous criminal record. He is an otherwise decent man having the support of an obviously decent family. Most unfortunately, he was abused when he was about the same age as his victim by a relative. This does not excuse his conduct but, as discussed by Ms Patch, it does help to explain it. It is also important to note that despite the totally inappropriate vacation that the offender organised in Hawaii, no sexual activity, or attempt to have sexual activity, took place.
This is perhaps the most unusual aspect of this case. The trip to Hawaii, paid for by the offender, has all the hallmarks of the final stage in the procuring of sexual activity. Despite this, no sexual activity took place and in fact there is no suggestion of sexual activity in the many messages over the month before the trip.
The Crown made the point that there was no ‘evidence’ of sexual activity, perhaps suggesting that it had not been discovered. This is inconsistent with the messages between the offender and the child, in particular those that occurred on 20 November 2014 between 8:40 PM and 8:43 PM.
It was submitted on behalf of the offender that I should approach sentencing by way of a term of imprisonment, but suspend it with immediate effect. This was said to be based on a number of exceptional circumstances, described as follows. The first exceptional circumstance was said to be that there was no intent to pretend, other than over a period of about four days, that the offender was younger than his actual age. There was no intent to groom. The offender was not a sexual predator. I think there was a plain intent to groom displayed in the suggestions of sexual activity that were being put to the victim, as well as the provision to her of sexual aids such as lubricant.
The next exceptional circumstance was said to be a genuine absence of evidence of the offender trying to hurt the victim. I found this submission to be quite wrong. The victim was being encouraged to engage, at 12 years of age, in sexual activity. She was provided with the means, by way of description and aids, to do so. Any such activity on her part would obviously be harmful. Counsel submitted that I should look at the entirety of the messages in assessing this special circumstance. I do accept that the entirety should be considered, but no matter how many innocent messages there were they do not detract from the harmful messages.
The next exceptional circumstance was that money was provided for reasons other than sexual favours. I also reject this as an exceptional circumstance. The provision of money for the most innocent of reasons is also a means of inducing a sense of obligation on the part of the victim.
The next exceptional circumstance concerned the vacation in Hawaii, which had no sexual content. As I have already intimated, I agree that this is an exceptional circumstance and is also to be seen in the context of the absence of sexual messages in the month before the holiday and in the nine or so months after it.
Part of the evidence placed before me was a transcript of a telephone conversation between the offender and the victim’s brother, which took place in November 2014. The victim’s brother was obviously apprehensive about the relationship. He ended the conversation with these very appropriate words: “This situation is illegal and wrong on many levels”.
Both parties referred me to a number of authorities dealing with the same or similar offences. Although none of them are precisely comparable, they do indicate the approach that must be taken to offences of this type. I think the authorities provided by the Crown are the most useful, although I do note that some of these are also relied upon by the offender. The Crown specifically took me to the following cases: R v Gajjar [2008] VSCA 268; 192 A Crim R 76; Director of Public Prosecutions (DPP) (Cth) v Hizhnikov [2008] VSCA 269; 192 A Crim R 69; R v Nahlous [2013] NSWCCA 90; 228 A Crim R 503; Director of Public Prosecutions (DPP) v Boyles [2016] VSCA 267 (Boyles).
The second count relates to the soliciting of pornographic material. I agree with the submission put on behalf of both the Crown and the offender that it is of a low objective seriousness. As far as the first count is concerned, the position is different. Whatever the overall context of the relationship may have been, the conduct engaged in by the offender, including the encouragement to engage in masturbation, the provision of sexual aids and toys, the referring of the victim to pornographic websites and the highly sexually descriptive messages, all combine to render the first count to be of medium objective seriousness or at least approaching that degree.
This is a very difficult sentencing exercise. On the one hand, there is no limit to the condemnation that can be made about the conduct. On the other hand, there is a young man with a troubled past, who suffers from depression, but has impressed a number of people as evidenced by the character references. I’ve also taken into account the impassioned plea put by the offender’s father. I also accept that he has demonstrated real remorse for his actions.
The authority that I have gained most assistance from is Boyles. In that case, although the original sentence of a community correction order was not interfered with, the Victorian Court of Appeal made it very plain that such an approach was not one that ought to be followed. I think that paragraphs [62] and [63] of the judgment are the most instructive in dictating the approach that I should take. These paragraphs are as follows:
While we accept that there may be atypical cases in which a non-custodial sentence would be appropriate, we have reached the conclusion that, in the present case, the nature of the offending taken as a whole demanded such a sentence (albeit of relatively short duration) if the offending was to be adequately denounced, RB adequately punished and adequate weight to be given to the facts of general and specific deterrence.
In so concluding, we have taken into account RB’s relative youthfulness and immaturity, his pleas of guilty, his expressions of remorse, the probability that imprisonment will be unusually burdensome for him and is likely to aggravate his mental illness, and the fact that, if he complies with his medication, his prospects of reoffending are relatively low. We have also taken into account the sentencing alternatives available to the sentencing judge.
In coming to my view, I have also considered the appropriateness of an Intensive Corrections Order, an option raised very late, and with my prompting, by the offender. I’ve decided that it is not an appropriate order because of the necessity for there to be a period of full-time custody. To do otherwise would be an affront to community standards and to the revulsion with which such offences are correctly regarded by the public. I have, however, reduced the period of full-time imprisonment, as much as is possible, having regard to the offender’s personal circumstances, good prospects of rehabilitation and otherwise good character.
In conclusion, I think there must be a period of full-time custody but, as suggested in Boyles, that period can be of a short duration. It is also important that the offender enter into a recognizance to be of good behaviour and in particular to follow all directions given to him in relation to attendance for treatment and other appropriate programs.
The offender is entitled to a discount for his plea of guilty. I have allowed a discount of approximately 20 per cent. I think the period of imprisonment for count one should be two years, which after the discount is reduced to 19 months.
In respect of count two, I think the period of imprisonment should be nine months which, after the discount, is reduced to seven months. I think there should be a degree of accumulation leading to a head sentence of two years.
I make the following orders:
(i)For the offence of using a carriage service to communicate with a person who was under the age of 16, with the intention of procuring that person to engage in sexual activity, the offender is sentenced to a period of imprisonment of 19 months to commence on 11 May 2017 and end on 10 December 2018.
(ii)For the offence of using a carriage service to solicit pornographic material, the offender is sentenced to a period of imprisonment of 7 months to commence on 11 October 2018 and end on 10 May 2019.
(iii)The head sentence of two years is suspended after 28 days, so that the suspension takes effect on 7 June 2017.
(iv)The offender is subject to a Recognizance Order to be of good behaviour for the suspended period of the head sentence, during which time he is to accept all reasonable directions of the Director-General of Corrective Services in respect of counselling, programs or treatments as directed by the supervising officer.
(v)In respect of the Recognizance Order, I order that the offender give security in the amount of $1,000.
(vi)I recommend that the Director of Corrective Services be informed as soon as possible of the offender’s diagnosis of depression and his need for antidepressant medication.
(vii)A forfeiture order is made in respect of the items seized by the Australian Federal Police on 8 October 2015.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of His Honour Justice Elkaim. Associate: Date: 18 May 2017 |
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