R v Kravchenko

[2023] NSWDC 200

District Court

New South Wales

Medium Neutral Citation:	R v Kravchenko [2023] NSWDC 200
Hearing dates:	24 May 2023
Decision date:	24 May 2023
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 3 years 9 months with a non parole period of 2 years 3 months
Catchwords:	CRIME - SENTENCE - travelling with the intention of meeting a child under 14 years groomed for sexual activity - procuring a child under 14 years for unlawful sexual activity - unhelpful expert evidence.
Legislation Cited:	Crimes Act 1900 (NSW) s.66EB(2A)
Category:	Sentence
Parties:	Rex (Crown) Dmitriy Kravchenko (Offender)
Representation:	Ms McEvoy (ODPP Parramatta) Ms Davids (Counsel for the Offender)
File Number(s):	2022/00184571
Publication restriction:	Nil

Judgment

1. Dmitriy Kravchenko, you appear for sentence today in relation to one principal offence, that being travelling with the intention of meeting a child under 14 years of age groomed for sexual activity. This principal offence involves a contravention of s 66EB(2A) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 15 years, and there is a standard non-parole period of imprisonment for 6 years.

2. In addition to that one principal offence, you have asked me to take into account one matter on a Form 1, which I have certified, and that is procuring a child under 14 years for unlawful sexual activity.

3. I pause to observe that the principal offence and the matter on the Form 1 could have been dealt with in the Local Court. But the facts surrounding the principal offence and the matter on the Form 1 are of such seriousness that it would have been quite inappropriate for these matters to be dealt with in that court.

4. The facts surrounding the principal offence and the matter on the Form 1 are contained in a statement of agreed facts which you have signed on legal advice. For my purposes this afternoon, those facts may be summarised as follows.

5. As at June 2022, you were approximately 31 years of age, and the victim of your offending was 12 years of age.

6. Both you and the victim utilised the social media platform known as Snapchat.

7. On or about 19 June 2022, the victim decided to accept all friend requests contained on her Snapchat account. One of the requests that was on that account was your account. The victim decided to accept all the friend requests because she was “bored”.

8. After she accepted your friend request, you and the victim communicated on that social media platform.

9. During the first such conversation, the victim told you that, although she used to live in Sydney, she now lived in Melbourne. She expressed some disappointment [as I have understood the imprecise words in paragraph 4 of the statement of agreed facts] at not currently living in Sydney, otherwise you and she could have met.

10. More significantly, however, the victim told you that she was 12 years of age.

11. You replied by confirming to her that you were 31, and then you made comments about her maturity and sexual allure for someone aged 12 – which, to me, suggests that you may have been able to see images of her at the time you accepted her friend application, but I do not make any formal finding about that and I certainly do not hold it against you.

12. You expressed disappointment to the victim that she no longer lived in Sydney, and then you made some graphic sexual references to her about what you would like to do with her.

13. Following those sexual expressions, the victim told you that she was planning to come to Sydney. You said to her that, in effect, you and she could meet. You said that you would provide her with cannabis, and you made a further specific and graphic sexual reference.

14. I pause to observe that it is a matter of additional concern to me that, in these conversations, not only were you discussing graphic sexual material with a 12-year-old, not only were you proposing to engage in that sexual activity with a 12-year-old, but you were proposing to do all of that in the context of supplying a highly dangerous drug to a 12-year-old.

15. Returning to the narrative, the victim asked you whether you cared that she was 12. You said that you “loved” that fact.

16. So, there can be no doubt, Mr Kravchenko, that, from an early stage in these communications, you were fully aware that the person you were dealing with was only 12 years of age.

17. Your next involvement was to send her a picture of your erect penis, accompanied by some graphic and inappropriate comment.

18. The victim asked you for your phone number, and you provided it.

19. You and she made arrangements to meet the next day, and you told her that you had purchased cannabis for you and her to share.

20. Over the course of that day, 19 June 2022, you and the victim exchanged an unspecified number of sexually explicit messages. The agreed facts do not record whether the victim sent you explicit sexual messages, but that fact is neither here nor there. I have no intention this afternoon of descending into the particularity of these disgusting messages that you sent to a 12-year-old, but to describe them as graphic is probably sufficient. They involved a variety of sexual activities.

21. Late in the afternoon of that day, 19 June, the victim's mother noticed that the victim was on her phone in the loungeroom. The victim volunteered to her mother that she was being messaged by a 31-year-old using “flirtatious” language, and the victim's mother directly asked the victim whether that person to whom she was talking (which was you) was grooming her.

22. So, the mother's suspicions were already aroused, and probably were not satisfied by the fact that the victim did not answer her mother's question.

23. But the mother's concerns were fully met shortly thereafter because, whilst she was outside having a cigarette, the victim came and joined her. The victim had placed her phone on loudspeaker, and, amongst other things, the victim's mother heard you asking the victim where the victim lived. The victim's mother began voice recording this conversation and, in the course of that, she noted your telephone number, which was on display. The victim's mother heard you state that you did not care that the victim was only 12 and that you were going to perform a particular sexual act upon the victim.

24. In the Snapchat messages exchanged between the victim and you, you asked the victim if she would stay a night with you; and she suggested that that night be spent at a hotel. In subsequent messages, you told the victim that she could come to your house the next day after you finished work. The victim proposed yet another arrangement, and that was she suggested that you meet her at premises in Fairfield the next day after she finished her dance lesson. You indicated agreement to that and confirmed that you would be bringing cannabis with you to those premises in Fairfield.

25. More text messages passed between the two of you concerning the arrangements for meeting up the next day. The text messages also included you sending more pictures of your erect penis to this 12-year-old girl. You told the victim, again, that cannabis would be consumed when you met - that much can be inferred from the expression, "You're going to be so high, baby", after which more graphic sexual references were made by you.

26. The next day, 20 June 2022, the victim's mother reported your behaviour to various authorities, including the police. The police were told of the arrangement for you to meet the victim at the Fairfield premises. You went to those premises; and, whilst waiting outside, the victim attempted to delay you. She, of course, was not there. She attempted to delay you because the police were not as swift in attending to the matter as they might have been.

27. In any event, you did not meet up with the victim, but rather you were arrested on 24 June 2022. You have been in custody, bail refused, since the date of your arrest, solely referable to these offending matters.

28. The court is required to make an assessment of the objective seriousness of the principal offence for an offence of its kind. The facts which I have enumerated lead me to the conclusion that the offence is a midrange offence.

29. The facts concerning the matter on the Form 1, which although in one sense might be seen as a continuing series of events concerning the principal offence is, nevertheless, a discrete act of criminality, which requires a meaningful increase in the sentence for the principal offence.

30. There are no additional aggravating considerations.

31. The balance of your subjective material was contained in: first, a sentencing assessment report; secondly, a report from Mr Watson - Munro, a psychologist; and thirdly, a letter of contrition prepared by you. Specifically, you did not give direct oral evidence in the sentence proceedings.

32. I am satisfied of the following facts on the balance of probabilities.

33. You were born in Russia in May 1991. There is no suggestion that you had anything other than a good and healthy upbringing in that country with your parents.

34. You were educated in Russia to the age of 17, after which you came to Australia on a student visa. Some administrative errors seem to have attended upon your efforts to enrol in university in this country, and you returned to Russia. However, you made a better effort at preparing to return to this country for educational purposes, and you returned in June 2009 on a four-year visa. Unfortunately, the educational arrangements which you had put in place for the second visit also fell through.

35. But you did not return to Russia at the expiration of your visa but you have remained an illegal resident in Australia to the present time. You survived by working as a professional painter, gyprocker, and tiler, getting paid in cash as a subcontractor.

36. You had a personal relationship in Australia which ended unhappily, insofar as you were concerned, and that led to an increase in your cannabis use. You made numerous efforts to reduce or address your increasing cannabis problem, but you were unsuccessful. The nature of those efforts is not specifically defined or described in the evidence, but the impression I have is that it did not involve any professional assistance.

37. It was whilst you were socially isolated and consuming an increased amount of cannabis as a result of, amongst other things, your relationship breakdown, that these events with which I am concerned this afternoon occurred.

38. You have offered the explanation that, at the time of the conversations with the victim, you were affected by cannabis. There is, however, no evidence that you were affected by cannabis at the time you travelled from wherever you were staying to those premises at Fairfield. But that is not a major factor for me.

39. The psychologist who examined you merely noted that you denied aberrant sexual fantasies, and uncritically noted that you were drug affected at the time of the offending. Merely reciting those facts falls well short of the assistance the court expects to receive from experts providing expert reports. All that this expert has done is merely tell me about matters that you could have directly told me about.

40. On the evidence, I am not persuaded on the balance of probabilities that there is a causal connection between your cannabis use and this offending - except as follows. I am prepared to accept that, under the influence of cannabis, something that is real in your personality is revealed, and that is an aberrant sexual fantasy involving children, on which, in certain circumstances, you are prepared to act, as you did in this case.

41. I am not suggesting, Mr Kravchenko, that what you have told the psychologist was deliberately untrue. I have seen many men in your position who cannot face the reality of what they are; and the reality (about which I am satisfied beyond reasonable doubt) is, Mr Kravchenko, that you do have a sexual interest in children, which you need to address if you wish to have good prospects of remaining out of gaol in the future, and you need proper psychological intervention to get there. But that psychological intervention needs you to admit what you are, and the treating psychologist needs to critically assess what you are. Merely accepting your denials will not be of any assistance to you in the future.

42. I have not overlooked the psychological conditions which Mr Watson - Munro contends that you have. I am prepared to accept that you do suffer from those conditions, but they are not causally related to the offending with which I am concerned today.

43. Because you have not fully acknowledged the source of the problem, your expressions of remorse, which I accept are genuine, are of limited value.

44. I have noted that you have got no prior convictions, but for offences of this kind, prior good character is of reduced significance, but it is still of some significance.

45. The predominant sentencing consideration involving offences against children must be general deterrence, that is fixing a penalty that will deter others from doing what you have done. Specific deterrence is also fully engaged, that is fixing a penalty that will discourage you from doing what you have done. The protection of the community is also a consideration which is fully engaged. But equally, encouraging your rehabilitation is a consideration which is fully engaged. In this context, I regard your prospects of rehabilitation as being guarded.

46. You indicated a willingness to plead guilty at an early opportunity. It would seem that there was an administrative error in the records of the Local Court when you were committed for sentence to this court. That is not uncommon in my experience, considering the immense workload that the magistrates are under, and the virtually non-existent administrative assistance which their Honours have. For that reason, you had to be arraigned on an indictment which was presented in court today. But the Crown and your counsel are in agreement that it was your intention to plead guilty at the earlier time, and you will receive a discount of 25% to reflect that fact.

47. You have been in custody since your arrest on 24 June 2022, and the sentence I shall now impose will be backdated to that date.

48. It follows from what I have just said that I am satisfied that no sentence other than a term of imprisonment is appropriate for the principal offence.

49. Dmitriy Kravchenko, for the principal offence of travelling with the intention of meeting a child under 14 years of age groomed for sexual activity, and taking into account the matter on the Form 1 (being procuring a child under 14 years of age for unlawful sexual activity) except for your plea of guilty, I would have sentenced you to a term of imprisonment of five years. After the discount of 25%, the term of imprisonment is three years and nine months.

50. Because of this is your first time in custody; because of your mental health issues, which, as I have said, are not causally related to the offending; and because of your need to be on parole for a longer period to facilitate your rehabilitation, I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period.

51. I fix a non-parole period of two years and three months to date from 24 June 2022. You will be eligible for parole on 23 September 2024. I fix a balance of one year and six months to date from 24 September 2024, and which will expire on 23 March 2026.

52. Mr Kravchenko, the decision as to whether you get parole or not is decided by the parole board. I have no doubt that your legal advisors will tell you that your prospects of obtaining parole would be enhanced if you are able to gain access to the courses contained within the correctional facility and successfully complete those courses.

53. That is all for this afternoon, Mr Kravchenko. You may now let the officers know that you are finished.

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Decision last updated: 14 June 2023