R v Kolevski

[2020] NSWDC 890

District Court

New South Wales

Medium Neutral Citation:

R v Kolevski [2020] NSWDC 890

Hearing dates:

4 December 2020

Decision date:

04 December 2020

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Use carriage service to send indecent material to person <16: Sentenced to a term of imprisonment of 2 years.

Use carriage service to groom under 16 years for sex: Sentenced to a term of imprisonment of 2 years 3 months.

Total Sentence 2 years 9 months. Single recognisance release order at the expiration of 1 year 6 months upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914

Catchwords:

CRIME – Use carriage service to send indecent material to person <16 - Use carriage service to groom under 16 years for sex

SENTENCING — Relevant factors on sentence — early admissions - early plea - use of Assumed Online identity - disclosure of other offences relating to real child – accumulation on state sentences

Legislation Cited:

Criminal Code Act 1995

Crimes Act 1914

Cases Cited:

Markarian v The Queen (2005) 228 CLR 357

R v Asplund; Asplund v R [2010] NSWCCA 316

Rampley v R [2010] NSWCCA 293

The State of Western Australia v Collier [2007] WASCA 250; 178 A Crim R 310

Category:

Sentence

Parties:

Vlad Kolevski (the offender)
Director of Public Prosecutions (Cth)

Representation:

Counsel:
Mr D McCallum (for the offender)

Solicitors:
Mr J Kisch (for Director of Public Prosecutions, Cth)

File Number(s):

2020/00047861

sentence – ex tempore revised

1. Vlad Kolevski is for sentence this afternoon in relation to two offences. The first, pursuant to s 474.27(1) Criminal Code Act 1995 that in February of 2020 he used a carriage service to transmit communications to another person, a fictitious person said to be 14, with the intention of making it easier to procure that person to engage in sexual activity with them; has a maximum penalty 15 years’ imprisonment. The second, pursuant to s 474.27A(1) Criminal Code, that between 19 June and 20 February he used a carriage service to send indecent communications to a person, a real child, who was then aged 13; has a maximum penalty of seven years’ imprisonment.

2. It is important to note that earlier this afternoon I dealt with a severity appeal, by Kolevski from sentences relating to his assault (Case No: 2020/00047896) and intimidation of his natural daughter; an intellectually disabled young woman (Case No: 2020/00047896). Although I agreed the penalties fixed by the learned magistrate were correct I varied the commencement date of those sentences to make them totally concurrent.

• For the assault offence, in lieu of the sentence imposed below I imposed a term of imprisonment of 18 months, non-parole period 13 months, 15 days to commence on 13/02/2020.

• For the intimidation offence I confirmed the sentence imposed below of 12 months, non-parole period of 9 months to commence on 13 February 2020.

3. Kolevski is consequently serving an effective sentence of 18 months imprisonment with a non-parole period of 13 months and 15 days. That sentence dates from the day he went into custody 13/02/2020.

4. That Local Court sentence was also partly concurrent with the balance of an Intensive Correction Order (ICO) which he was subject to when he committed the February offence. That ICO commenced on 1 July 2019.

5. It is accepted that, applying proper principles relating to totality, I should commence this sentence at some stage during that Local Court non-parole period, and I will do so.

6. I have the benefit of comprehensive written submissions, supplemented by oral submissions, by Mr McCallum of counsel who appears for the offender and Mr Kisch, solicitor, for the Commonwealth Director of Public Prosecutions. I will try and keep this judgment as brief as is necessary, but it has been informed by those comprehensive submissions. They set out all the applicable principles and take me to necessary legislation. They are not, so far as they are summaries of the relevant law and principle, too far apart.

7. I also have the benefit of a psychological report from Mr Borenstein, dated 13 November 2020. There are aspects of that report which are non-controversial and reflect his professional opinion based upon his psychological testing and application of instruments and tests designed to measure potential for risk. Although there are some aspects of the report that adopt an advocacy role it remains helpful and informed this judgment.

8. There are agreed facts. In short: in February 2020 an officer assumed the online identity of a 14-year-old female (the AOI). The AOI began to engage in communications with this offender over a social networking website. On initiating contact the AOI informed the offender of “her” age and limited sexual experience. Summaries of a number of online conversations are included in the agreed facts, they include; the offender asking questions of the AOI about masturbation; his describing his acts of masturbation and him sending her videos of a female masturbating. Suggestions were also made relating to mutual masturbation. Photographs of people engaged in oral sex were sent by the offender with descriptions of sexual acts. The offender then told the AOI, in detail, what he would like to do to her, and described those sexual acts.

9. The offender was arrested on 14 February 2020. He made full admissions. He accepted that the AOI had made it clear that “she” was 14 years old.

10. While speaking with police the offender made other admissions. He said that he had also been chatting with another underage female, using the same social networking website. He admitted to sending pictures and messages to that child, who he said he believed was 15 years old. He said he knew her personally because he knew her mother. She was, in fact, 13 years old at the relevant time.

11. An examination of his phone revealed some messages that he had sent to her. The child later told police that once he started discussing masturbation she had “blocked him”. He did, however, continue to send messages to her after she had blocked him. Those messages contained images and written texts of a highly sexualised nature.

12. Although the offender disclosed the second matter it is clear that his activity would have been discovered once the contents of his phone were examined. His disclosures did, however, make that task so much easier. They enabled the young person to be contacted to confirm the facts that are now before the Court. The admissions also show a recognition by him that he had been caught doing something seriously wrong. His recognition of the wrongness of his actions is reflected in the early pleas of guilty and his acceptance of responsibility.

13. I will reduce the otherwise appropriate sentences by 25% to reflect the utilitarian value of those pleas. I will seek, during the process of accumulation, to not erode that benefit.

14. His acceptance of responsibility is also a matter that I can and should take into account when I structure the sentences, as it gives me some confidence, although guarded, that with assistance he may be able to restore himself to his former life.

15. Mr Borenstein, using a number of actuarial tools, assesses Kolevski as being at medium to low risk of reoffending. That risk assessment appears to me to be utterly conditional upon him coming to grips with a methylamphetamine problem that seems to have plagued him for many, many years.

16. Kolevski was, until the breakdown of his relationship, a hardworking tradesperson and father, but his life has deteriorated. This is reflected in his criminal record and his acknowledgment that he had a problem with cannabis and, later, methylamphetamine.

17. He professes not to have any particular interest in young, underage girls. That statement is at odds with his offending in these matters. It does, however, give me pause when I come to assess the structure of the sentence. It is clear, as Mr Borenstein points out, that if he is to deal with recurrent depression and what is clearly a substance abuse disorder, he will need assistance. His GP will need to refer to him to a psychologist and helping to establish a mental health care plan. He will need treatment for untreated depression and that substance use disorder.

18. While I accept that those matters were at play when these offences were committed I cannot accept the opinion of Mr Borenstein that Kolevski’s judgment and decision-making was significantly impacted by the combined effects of his untreated depression and substance use disorder. His use of drugs cannot and does not mitigate his crimes. It may have reduced his inhibitions, it may have meant he was not thinking as clearly as he could have thought, but he knew what he was doing in relation to both offences and he persisted in what he was doing. So far as the second matter, he persisted, in attempting to contact the young child even after he had been “blocked” by her.

19. The seriousness of what he did, one guide to the seriousness is the maximum penalties to which I have referred. In R v Asplund; Asplund v R [2010] NSWCCA 316, the Court set out a number of principles as a guide to the Court’s assessment of offences such as this.

20. Here, so far as the first count is concerned, the communications occurred over a period of ten days. The offender supplemented the messages with pornographic images and a video and the messages were graphic in nature. There was a significant age difference; the offender was 43 and the AOI was 14 years old.

21. While no individual was harmed by this offence the liability of the offender is in no way affected by the fact an AOI was involved. An offence is no less reprehensible when the offender is communicating with a fictitious person who they believe to be real than when communicating with a real person: The State of Western Australia v Collier [2007] WASCA 250; 178 A Crim R 310 and Rampley v R [2010] NSWCCA 293 at [38]. The only distinction that could be made between the offence relating to an AOI and a real person is that any sentencing exercise has to take into account the harm suffered by the victim.

22. Where an AOI is deployed there remains still a generalised harm to the community from such offences whereas in the second matter there was direct harm as real 13‑year-old girl who was contacted on a number of occasions. She was disturbed by what she received and she sensibly blocked the offender. There is no Victim Impact Statement from her but that does not mitigate.

23. These laws are premised on the fundamental requirement of the criminal law to protect children from all forms of harm, including grooming and predation by those who would seek to engage them in premature sexual activity. It is well recognised, and must be assumed in every case, that there can and will be harm from exposure of children to any form of premature sexual activity whether it be online or in person. Online predation is a particularly serious blight on our modern community; one that must be addressed by appropriately harsh punishment taking proper guidance from the maximum penalties fixed by Parliament: Markarian v The Queen (2005) 228 CLR 357

24. Taking all those matters into account only custodial sentences could be imposed. I must formulate and structure the sentences so as to adequately punish the offender and enable his restoration to our community. I propose to start this sentence after he has served six months of the Local Court sentence. The sentences will commence on 13 August 2020. There must be some accumulation as between the offences to reflect the separate nature of the offending and the time over which they occurred. The sentences take into account the pleas of guilty

Orders

Use carriage service to send indecent material to person <16

25. There will be a sentence of two years’ imprisonment to commence on 13 August 2020 and to expire on 13 August 2022.

Use carriage service to groom under 16 years for sex

26. There will be a sentence of two years 3 months to commence on 13 February 2021 and to expire on 12 May 2023.

27. The total Commonwealth sentence is 2 years 9 months. I must make a single release order. I direct that you be released on 12 February 2022 at the expiration of 1 year 6 months of your Commonwealth combined sentence; upon you entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914 yourself in the sum of $100 with the following conditions:

28. To be of good behaviour for a period of 1 year 6 months from this date. It is a condition of that order that he report to and obey the directions of the New South Wales Community Corrections Service, Probation and Parole, for the period of the recognisance. You must obey all directions of that service, particularly in relation to implementation of sex offender programs, a mental health care plan and anger management programs.

29. Mr Kolevski, I have taken into account your plea of guilty. I have taken into account I am dealing with you today for four matters. Two State offences on appeal, (assault and intimidate) and two Federal offences. After 6 months of your State sentences the Commonwealth sentences will start. The total Commonwealth sentence is 2 years and 9 months with a single recognisance release order release order from on 12 February 2022, after you have served 1 year 6 months of that total sentence, with 1 year 3 months in the community subject to conditions.

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Decision last updated: 22 April 2021