R v Lidden
[2024] ACTSC 297
•27 September 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Lidden |
Citation: | [2024] ACTSC 297 |
Hearing Date: | 24 September 2024 |
Decision Date: | 27 September 2024 |
Before: | Taylor J |
Decision: | See [93]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – use carriage service to groom a child – low objective seriousness – cognitive disability – Verdins principles – reduction in moral culpability – direct causal link between disability and offending – exceptional circumstances – recognizance release order |
Legislation Cited: | Crimes Act 1914 (Cth) ss 3, 16A, 17A, 19AC, 20(1)(b), 20AB Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code 1995 (Cth) s 474.27(1) |
Cases Cited: | Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Williams [2024] ACTSC 283 Griffiths v The Queen [1989] HCA 39; 167 CLR 372 Hili v The Queen [2010] HCA 45; 242 CLR 520 Meadows v R [2017] VSCA 290 Mertell v The King [2022] ACTCA 69 Rampley v R [2010] NSWCCA 293 R v Abbott [2023] NSWDC 488 R vBredal [2024] NSWCCA 75 R v Gajjar [2008] VSCA 268; 192 A Crim R 76 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Mertell [2022] ACTSC 37 R v Ralston [2019] ACTSC 236 R v Ralston [2020] ACTCA 47 R v Sinclair [2012] ACTSC 151 R v Tootell ex parte AG [2012] QCA 273 R v Verdins [2007] VSCA 102; 16 VR 269 Tector v R [2008] NSWCCA 151; 186 A Crim R 133 |
Parties: | Commonwealth Director of Public Prosecutions (Crown) Michael Lidden (Offender) |
Representation: | Counsel F Bruford (Crown) B Morrisroe (Offender) |
Solicitors
Commonwealth Director of Public Prosecutions (Crown) Hugo Law Group (Offender)
File Number: SCC 183 of 2024
TAYLOR J:
Introduction
1․ The offender, Michael Lidden, is to be sentenced for the following offence to which he entered a plea of guilty on 20 June 2024:
(a) CC2024/5484: use carriage service to groom a person under 16 years of age, contrary to s 474.27(1) of the Criminal Code 1995 (Cth) (the Criminal Code).
2․ The offence carries a maximum penalty of imprisonment for 15 years.
Facts
| 3․ | In July 2021, police obtained information in relation to online grooming of juvenile females via the social media platform known as Facebook by the offender. A review of police indices showed the offender has been involved in suspicious behaviour directed towards juvenile females in the Australian Capital Territory (ACT) and New South Wales (NSW). |
| 4․ | Further review of police indices showed the offender to be the current operator of a silver Toyota Hilux, bearing ACT registration [redacted]. The vehicle is registered in the offender’s father’s name. |
| 5․ | Between 18 and 27 March 2024, Australian Federal Police (AFP) Covert Online Operations utilising an Online Covert Persona (OCP) purporting to be a fourteen-yearold girl, conducted online engagement via Facebook messenger with a Facebook profile in the name of ‘Mick Lidden’. |
| 6․ | The Facebook profile in the name of Mick Lidden includes a profile picture of the Sydney Harbour Bridge, harbour and sky. |
| 7․ | At about 2:41pm on 18 March 2024, the messages sent between the offender and the |
OCP include, but are not limited to:
The offender: how are you Rosie
The offender: Can I ask you something if you don’t mind
OCP: yes,
The offender: how old are you
The offender: Because I have girl lie to me about there age
OCP: I am 14. How old are you?
The offender: Ok all I did think you that young sorry ok but I am older ok I am ok but we be friends if ok with you
The offender: Can I see a picture of you as a friend please it is up to you and it ok if you don’t want to send one
The offender: What are you up to this Saturday would you like to catch up with me as a friend if ok with you or not
The offender: So you get to know me better if ok it is up to you
| 8․ | At about 4pm on 19 March 2024, the messages sent between the offender and the OCP include, but are not limited to: The offender: Good morning Rosies I hope you have a great day a school and I talk to when get home from school cheers. The offender: Then maybe go for a drive together if ok The offender: If you send me a picture I will keep between me and you only if ok The offender: Because I send you one later tonight of me if you want me to The offender: Is ok if I give you my number The offender: Then you can text me there The offender: if ok with you OCP: ok, how come you don’t want anyone to know? The offender: Because I am older that you that’s why The offender: it because you are under age for me that why I don’t want nobody to know OCP: ok. What would happen if someone found out? The offender: I will go to jail. The offender: Do you want that The offender: Hope I can trust you Rosie |
| 9․ | The digital image sent by the offender appeared to be an image of himself, commonly referred to as a ‘selfie’ picture. The digital image included a close view of a Caucasian male person, with a clean-shaven appearance and bald head. The male person is not wearing a shirt and the image shows his face, neck and upper chest area. |
| 10․ | Police were satisfied that the digital image sent to the OCP matched the appearance of digital images recorded in police indices in the name of Michael James Lidden, born 22 December 1983. |
| 11․ | Police further observed the background of the digital image to include grey/blue-coloured |
curtains, white/tan-coloured walls and a brown-coloured dresser. On top of the dresser
is a black television and mirror. A shirt with a red and white-coloured neckline is hanging from the front of the dresser.
| 12․ | At about 3:08pm on 21 March 2024, the messages sent between the offender and the OCP include, but are not limited to: The offender: are you home from school yet OCP: how old you? The offender: Please don’t tell anyone that talking to me I am 40 The offender: don’t be afraid The offender: because I will not hurt you The offender: Can I see a picture of you please it is up to you The offender: Don’t be afraid because I will not show nobody The offender: Ok because I was do you want to go to Batemans ay for the day next weekend on Saturday if ok The offender: As a friend The offender: So no one sees us hung out together ok if ok OCP: that sounds nice what kind of car do you drive? The offender: Toyota Hilux ute The offender: dual cab The offender: Ute The offender: Silver |
| 13․ | At about 7:04pm on 24 March 2024, the messages sent between the offender and the |
OCP include, but are not limited to:
The offender: I missed talking to you
The offender: how you told your mum that you are talking to me or not yet
The offender: Ok
The offender: I will tell nobody that I talking to earlier
The offender: Ok because we can only be friends because it is you are 14 ok
The offender: Please don’t tell your friends at school that talking to me please
The offender: Do you like me Rosie it is ok if you I will not say mothing to nobody ok
The offender: I cant sex intill I lest you are 16 ok that I am you are under age for me
The offender: If what known I mean know
| 14․ | At about 3:10pm on 25 March 2024, the messages between the offender and the OCP include, but are not limited to: The offender: I am laying down on my bed in my underwear The offender: in my room The offender: I wish you were here keeping me company ok Rosie The offender: as a friend The offender: Can I ask you something please The offender: please don’t get angry with me what I am about to ask you ok The offender: do you wear g string s at all because my ex doesn’t wear them The offender: Are you out of the shower yet? | |
| 15․ | At about 3:27pm on 27 March 2024, the messages between the offender and the OCP include, but are not limited to: The offender: Would you be allowed to do something that Saturday night of ok with your mum The offender: Go for a drive to the cotter is you ok with that The offender: or we chill out there as well The offender: does your mum let you have drinks The offender: Alcohol The offender: As you don’t tell nobody that I am getting for you The offender: Do you want to see a other picture of me | |
| 16․ | The second digital image sent by the offender depicted a Caucasian male with a cleanshaven appearance and bald head. The male is not wearing a shirt and the image reveals his neck and upper chest area. There also appeared to be a red mark on the neckline of the male, which may be a sunburn. | |
| 17․ | Police further observed the background of the digital image to include grey/blue-coloured curtains, white/tan-coloured walls and a brown-coloured dresser. The dresser has a mirror and an orange-coloured ornament. | |
| 18․ | At about 6:19pm on 27 March 2024, the online engagement ceased with the offender. | |
| 19․ | On 18 May 2024, Magistrate Theakston of the ACT Magistrates Court issued search warrants for [redacted] and the offender. | |
| 20․ | At about 8am on 18 May 2024, police attended the offender’s residential address and commenced the execution of the search warrants. Police observed a silver Toyota Hilux, dual cab, bearing ACT registration [redacted] parked at the premises. | |
| 21․ | The offender produced an ACT driver’s license in the name of Michael James Lidden. Police were satisfied that the image on the driver’s license matched the appearance of the offender. | |
| 22․ | At about 8:07am, police commenced a Record of Search Warrant with the offender. The offender’s parents were present. At about 8:12am, the Record of Search Warrant was suspended to allow the offender to contact a legal practitioner. The offender later declined to participate in an interview with police. | |
| 23․ | During the course of the search, police observed the offender’s bedrooms to include grey/blue-coloured curtains, white/tan-coloured walls and a brown-coloured dresser. On top of the dresser is a black television, a mirror and an orange-coloured rooster ornament. A blue Rugby League ‘Roosters’ football jersey with a red and white-coloured neckline is hanging from the front of the dresser. | |
| 24․ | During the course of the search, police located one black-coloured Apple iPhone 11, identified as belonging to the offender. A field triage examination of the mobile phone revealed the Facebook application logged into a Facebook profile in the name of Mick Lidden. The Facebook profile includes a profile picture of the Sydney Harbour Bridge, harbour and sky. | |
| 25․ | Police were satisfied that the Facebook profile in the name of Mick Lidden, is the same profile used to engage with the OCP between 18 and 27 March 2024. | |
| 26․ | Police identified a number of Facebook messenger ‘chats’ with other Facebook profiles, which included names and images of young females. | |
| 27․ | During the course of the search warrant, the offender’s parents informed police of the | |
following:
(a)the offender resides at the premises with them;
(b)the offender doesn’t use any other electronic devices in the premises;
(c)the offender only uses his mobile phone; and
(d)the offender is currently being diagnosed for a medical condition in relation to a learning disability.
28․ At about 11:50am, the offender was placed under arrest and conveyed to the ACT Regional Watch House.
Sentencing considerations
| 29․ | An assessment of the nature and circumstances of the offending requires consideration of the objective seriousness of the conduct establishing the offence. The maximum penalty of 15 years of imprisonment reflects the gravity of the offence. The nature and extent of the conduct engaged in will inform the level of seriousness of this example of the offence. |
| 30․ | Acknowledging the seriousness of the offence, the parties in this matter agreed that the objective seriousness of the conduct making up the offence falls at the lower end of the spectrum. For the reasons outlined below, I concur with this assessment. |
| 31․ | Section 474.27(1)(c) of the Criminal Code provides that an offence under this provision requires the sender to have the intention of making it easier to procure the recipient to engage in sexual activity with the sender. There is no requirement that the messages themselves be sexually explicit in nature. |
| 32․ | The offending conduct occurred over a period of nine days. Much of the content of the messages is not sexual in nature. There are some messages sent by the offender that are sexually suggestive, but they are not forceful or sophisticated. The offender asks “Rosie” to send him photographs of herself. The offender makes no request that the images should capture her in a state of undress or in any particular way. The offender repeatedly tells “Rosie” that it is “okay” if she does not want to send him any images of herself. Similarly, he suggests to “Rosie” that they could share various outings together, though prefaces each invitation with statements reiterating her “choice” in the matter, by stating “it is up to [her]” and only “if it is ok with [her] mum”. Some of the messages do reveal a level of sexual interest on the offender’s part. The offender asks “Rosie” if she likes him and on one occasion asks about the type of underwear she wears. He tells her that he is lying on his bed in his underwear and that he wishes she was there to keep him company. He tells her he likes her “as a friend for now”. He specifically refers to them being unable to have sexual intercourse until she is at least 16 years old. |
| 33․ | The nature of the messages is not demonstrative of deliberate manipulation or an attempt to coercively control “Rosie” to engage her in specific conduct. This assessment is consistent with the subjective circumstances of the offender to which I will come. |
| 34․ | The offender was 40 years old at the time of the offence and believed he was |
communicating with a 14-year-old girl. The offender was quite clearly aware of the 26year age gap: see Tector v R [2008] NSWCCA 151; 186 A Crim R 133 (Tector) at [94].
The offender did not attempt to preserve his anonymity and was honest about his age:
see Tector at [94].
| 35․ | In Tector, the NSW Court of Appeal observed at [96] and [97]: 96. A communication, for example, that expresses an intention to engage in sexual intercourse in contrast to some lesser form of sexual activity is a relevant circumstance in the assessment of the gravity of an offence. 97. However, a communication that contravenes the section may be deliberately or strategically expressed in terms that propose a lower level of sexual activity in order to enhance the prospects of initially establishing a relationship between the sender and the recipient and/or to disguise an existing intention to engage in a more serious level of sexual activity that that proposed. |
| 36․ | The offender in this instance does not express an immediate desire or intention to engage in any form of sexual activity with the recipient. The only reference to a sexual act is future focussed, accompanied by the offender insisting that they cannot have sex until “Rosie” is at least 16 years old. Most of the messages sent by the offender are platonic in nature and reflect a desire for, an undoubtedly inappropriate, connection. He tells “Rosie” that they “can only be friends” because she is 14 years old. There are occasions where “Rosie” is overtly providing an opportunity for the offender to engage in more sexualised, intimate exchanges. The offender does not take up those opportunities. |
| 37․ | Neither of the photographs the offender sent of himself were explicit in nature. The offender did not make any attempt to conceal his identity, using his real name, referring to places he frequents and the make of his vehicle in the messages. The offender revealed his entire face in the photographs he provided to “Rosie”. |
| 38․ | Acknowledging the small number of sexualised messages, I am nonetheless of the view that the messages were not designed to give effect to a manipulative strategy to disguise the offender’s intention to engage in a more serious level of sexual activity as described in Tector at [97]. The overall effect of the messages is to paint a picture of the offender as somewhat juvenile himself; that he completely ignored opportunity offered by “Rosie” to escalate the sexual nature of their exchanges an example of that characterisation. Undoubtedly the offender was aware of the inappropriateness of the contact, though he appeared to (wrongly) moderate that by attributing significance to the fact that he could not legally engage in sexual activity with “Rosie” until she was 16 years old. |
| 39․ | The fact that there is no actual child victim of this offence does not constitute a mitigating |
factor at sentence. As identified in R v Gajjar [2008] VSCA 268; 192 A Crim R 76 at [44]:
It has been observed, correctly in our view, that the fact that there was no actual child victim in this case does not of itself exclude imprisonment as a sentencing outcome. The offence is designed to be preventative. It is likely to be detected only through the use of undercover police techniques.
| 40․ | In R vBredal [2024] NSWCCA 75 (Bredal) per Dhanji J (Harrison CJ at CL and Button J agreeing), that the child victim was similarly a fictitious identity assumed by police was not an entirely irrelevant factor. Not because it operated to reduce moral culpability or to diminish the significance of specific or general deterrence. It was a factor found to be relevant, appropriately in my view, to an assessment of the actual harm caused by the offending. In turn, his Honour considered the determination of the appropriate sentence in all the circumstances “by impacting the need to ensure the offender is adequately punished (s 16A(k)) which perhaps incorporates factors such as retribution and denunciation. If not these remain relevant common law considerations”: at [114]. |
| 41․ | The features of the offending as I have recorded them see it properly characterised as |
an offence at the low end of the spectrum of conduct constituting the offence.
Subjective circumstances
42․ The material before the Court includes an Intensive Corrections Order Assessment Report, a Psychiatric Report of Dr Olav Nielssen and a bundle of medical material which was also made available to Dr Nielssen to which I will refer.
Intensive Corrections Order Assessment Report
| 43․ | The offender is a 40-year-old man who was born in Bombala, NSW before relocating to Canberra with his parents and sister when he was approximately 15 years of age. He reported a positive home environment and close relationships with his parents and sister. He resides with his parents and described his parents as “overbearing” at times. The offender said that he would like to have increased independence and social contact outside the family unit. He is currently single but expressed a preference to be in a relationship. |
| 44․ | The offender reported that he lives with delayed cognitive disability and autism, and that he is currently undergoing assessments to receive support from the National Disability Insurance Scheme (NDIS). The offender’s father reported that the offender was first diagnosed with delayed development at 15 years of age but that both he and the offender’s mother noticed delays in the offender’s development from 3 years of age. |
| 45․ | The offender completed Year 12 prior to ceasing mainstream education. He reported |
school to be difficult for him as he experienced learning difficulties, behavioural issues,
and bullying from peers and teachers. He attended three different high schools and due to his disabilities he had difficulties with reading and writing.
| 46․ | The offender advised that he has been employed on a casual basis for his father’s fencing contract business since 2006. Due to the current offence, he has surrendered his Working with Vulnerable People registration which limits his capacity to work as job sites are often at schools or government locations. The offender’s father advised that the offender has always struggled to understand schoolwork and hold employment. The offender only has responsibility for minor tasks within the fencing business. The offender reported previous work as a gardener and in a customer service role. The offender advised receiving social support payments for most of his adult life and that he has no debts and limited financial commitments. |
| 47․ | The offender reported one long-term friend who he has not spoken with since being charged with the current offence. He advised he would like to make more connections with people who also live with a disability. He plays golf once or twice per week and attends the golf club most afternoons. He advised drinking up to four standard drinks most days and that he usually orders a drink as a way to fit in with other patrons. He explained that his main motivation is to engage in social interaction rather than consume alcohol. He reported having never tried illicit substances. An oral drug test returned a negative result. |
| 48․ | The offender reported being mostly happy, though scared and anxious regarding his court outcome. He expressed sadness regarding his lack of friendships and frustration regarding his lack of independence. |
| 49․ | The offender agreed with the statement of facts and advised he knew that what he was doing was wrong. The offender explained that he was simply trying to make friends. He reflected that a 14-year-old girl may feel scared by his actions and become wary of other men. The offender advised that in the future, he would cease all contact if he were made aware of a person being under the age of 20. The offender’s parents expressed a view that their son was merely trying to make friends and did not understand his actions were inappropriate and wrong. |
| 50․ | The author of the report assessed the offender as being suitable for an Intensive |
Corrections Order (ICO) and considered that he would benefit from appropriate therapies and treatments to address his offending. The offender expressed some discomfort speaking to others about his offending behaviour though acknowledged that it may be helpful for him to understand where he went wrong and what he could do next time to avoid being in trouble.
Psychiatric Report
| 51․ | Dr Nielssen interviewed the offender in August of this year and also spoke with the offender’s father. Dr Nielssen was provided with numerous medical documents as well as the offender’s criminal history and the statement of facts for the current offence. |
| 52․ | Dr Nielssen stated that the offender’s intellectual disability was immediately discernible from the delivery and form of his speech and nature of his communication. In relation to the current offence, the offender stated “I have trouble making friends… I was only talking to her… I found out it was a police officer acting as a fourteen-year-old”. The offender confirmed having regularly communicated with girls using social media, saying “I am trying to find someone… I have been lied to that many times… I just try to be friends with everyone”. He denied trying to meet younger girls, although said that most people communicating via social media were younger. |
| 53․ | The offender reported having never had any kind of sexual relationship. He looked at pornography from time to time but denied searching for pornography involving children. The offender denied any fetishist interests and did not consider that there was anything abnormal about his state of mind in the period in which the offence took place. |
| 54․ | The offender’s father advised that the offender found it hard to cope at school and “copped a lot of teasing and lack of understanding from teachers”. He reported that the offender repeated a year of primary school and was then homeschooled before later attending boarding school. The offender’s father advised that at around the age of 15, psychometric tests qualified him for the disability support pension. The offender’s father confirmed employing his son in his fencing business but noted that the offender required frequent direction and was incapable of completing skilled tasks. The offender’s father considered the offender to be gullible providing an example of where he was kidnapped and assaulted in the course of an attempted extortion. |
| 55․ | Dr Nielssen assessed the offender as not appearing overly anxious or depressed and |
that his emotional responses were a little bland and fatuous. Dr Nielssen recorded that the offender’s responses were brief and rather literal with his longer responses disorganised and sometimes irrelevant. The offender was not obviously suggestible and there were no objective features of his communication or thought content to suggest underlying psychotic illness. The offender’s responses lacked detail, consistent with his intellectual disability. Dr Nielssen estimated his intelligence to be in the mildly intellectually disabled range based on the offender’s communication, reasoning ability and his reported social performance. Dr Nielssen noted that the results of previous psychological testing, as well as recent genetic neurological and occupational therapy assessments, confirmed specific intellectual disability. Dr Nielssen observed that the offender’s intellectual disability is a direct consequence of his genetic abnormality.
| 56․ | While the offender has been able to acquire basic literacy and a driver’s licence, his social skills remain limited, specifically in relation to being able to plan and organise himself, maintain relationships, avoid exploitation and fully comprehend social rules. The offender has been unable to form normal reciprocal friendships, despite an amiable nature. The formation of any kind of normal intimate, romantic relationship has not been possible for the offender. From the available information, Dr Nielssen did not consider the offender to have a disorder of abnormal sexual interest, for example, heterosexual paedophilia. |
| 57․ | Dr Nielssen believed the offender to understand the nature of the charge and the purpose |
of the court proceedings. He believed the offender capable of following court proceedings and providing instructions to a lawyer when information is given to him in clear and simple terms.
Character references
| 58․ | The Court was provided with a number of character references on behalf of the offender, from his family and family friends. The references consistently expressed genuine shock and disbelief that the offender has been charged with an offence, specifically an offence of this kind. The offender’s family referred to the difficulties the offender experienced growing up due to his intellectual disability, including being bullied at school, being abducted and taken advantage of financially, struggling to make social connections and difficulty maintaining employment. Many of the references spoke compellingly to the offender’s desire for acceptance and validation, as well as the difficulty he has distinguishing between positive and negative attention. The authors consistently described their observations of the offender’s difficultly with judging appropriate social interactions. The offender’s sister-in-law observed, insightfully in my view, that the offender is motivated by the feeling or sense of acceptance he attains from any social contact, regardless of whether it is a negative or positive interaction. |
| 59․ | References from the offender’s family members all unequivocally referred to the absolute |
trust they have in the offender’s interactions with children. They noted the connection he has to his young cousins as well as to his young nieces and nephews. All the references specifically recorded that there has never been an issue with the offender’s behaviour toward or around children. The references described the offender’s gentle, kind and caring nature and that the experience of being charged with this offence has left him confused, fearful and anxious. His family members expressed the view that the offender is genuinely remorseful for the conduct he engaged in and that they consider he now appreciates and fully understands the seriousness of the conduct. His family considered that he had learned a lesson from his error of judgment. His father in particular noted the steps the offender, with his family’s ongoing support, is taking in engaging with support services such as a psychiatrist, neurologist and the NDIS.
Verdins considerations
| 60․ | A letter from Dr Mary-Louise Freckmann confirmed that the offender has a pathogenic (disease causing) deletion on chromosome 3 and that this deletion explains his presentation with intellectual disability and developmental delay. Dr Freckmann confirmed that this is a congenital and lifelong disorder. The offender’s diagnosis of an intellectual disability resulting from chromosomal deletion directly raises the application of the principles in R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins). In Verdins at [32] the Victorian Court of Appeal identified the relevance of impaired mental functioning at sentence: Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentence in at least the following six ways: 1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective. 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both. 4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both [citing Payne v The Queen [2002] WASCA 186; 131 A Crim R 432 at [43]]. 5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health. 6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment. |
| 61․ | I consider that the offender’s intellectual disability directly contributed to his offending |
conduct. It should operate to reduce his moral culpability for the offending and render
him an inappropriate vehicle for general deterrence. Further, I find that full-time custody would weigh more heavily on the offender by reason of his intellectual disability and the related struggles he has with living independently and judging social norms.
62․ I am satisfied of these matters having regard to the following contained in the report of Dr Nielssen:
(a)The offender’s “social skills remain quite limited, for example in being able to plan and organise himself, maintain relationships, avoid exploitation and fully understands social rules.” He has also been “unable to form normal reciprocal friendships” or “any kind of normal intimate relationship”.
(b)The offender’s intellectual disability “has a significant effect on all aspects of his social performance”.
(c)His genetic abnormality was considered to be “a major contributing factor to his offending in the sense that it contributed to his inability to form normal friendships and intimate relationships and to his pattern of communication in social media. His intellectual disability is also likely to have affected his ability to consider the potential seriousness of his communication, or the risks involved in that type of communication”.
(d)That he would experience greater hardship in custody and “would carry an increased risk of assault and exploitation” and greater susceptibility to “adverse influence and associations”.
Remorse and rehabilitation
| 63․ | The offender has expressed remorse for his actions, and was able to verbalise the impact his actions may have had if he had in fact been communicating with a 14-year-old girl. The author of the report considered that the offender could not provide further insight into his offending behaviour. I assess the offender’s expressions of remorse and his reported lack of insight with the observations of Dr Nielssen in mind; that the offender’s “communication and reasoning ability was consistent with the presence of a significant intellectual disability”. The offender, in my view, has expressed genuine remorse and insight to the extent that he is able, into his offending conduct. |
| 64․ | The presence of remorse is a significant factor influencing the assessment of an |
offender’s prospects for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41]. As I observed in DPP v Williams [2024] ACTSC 283, “an offender who is genuinely remorseful for their conduct is an offender potentially motivated not to engage in that conduct in the future and willing to examine the factors underlying their offending conduct”. In my view the offender presents as highly motivated not to re-offend and is receiving significant support to achieve that end.
65․ The author of the pre-sentence report considered there was a need for social skills therapy in particular, and Dr Nielssen considered the offender would derive considerable benefit from psychosocial intervention to improve his engagement in social activities. Dr
Nielssen also considered that the proceedings have had an “aversive effect” on the offender and that he is unlikely to re-offend. I consider the offender to have very good prospects for rehabilitation, in light of the support he receives from his family and the interventions he has already engaged in since being charged with the offence.
Criminal history
66․ The offender has a limited criminal history consisting of a drink driving offence in 2010 and an assault charge which was dismissed under mental health provisions earlier this year.
Time in custody
67․ I will take into account that the offender spent one night in custody in relation to the offence.
Guilty pleas
68․ The offender entered a plea of guilty in the Magistrates Court on 20 June 2024, the first occasion that the charge was before the court. The timing of the plea of guilty facilitated justice to a significant degree. It is appropriate to reduce the penalty I impose by 25 per cent in recognition of the very early acceptance of responsibility by the offender.
Sentencing practice
| 69․ | The limitations of sentencing statistics and comparable cases are well-recognised. Sentencing outcomes from other cases do not define the possible range of available sentences nor do they cap the upper or lower range of possible sentences: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at 537 [54] and Director of Public Prosecutions v Dalgliesh(a pseudonym) [2017] HCA 41; 262 CLR 428 at 445 [51]-[53]. No sentencing outcome stands as a precedent, though consistent application of principle must always be considered in the exercise of the sentencing discretion. |
| 70․ | The Crown referred me to the following sentencing decisions: Meadows v R [2017] VSCA |
290, Rampley v R [2010] NSWCCA 293 and Bredal. Counsel for the offender referred me to two decisions from this jurisdiction: R v Sinclair [2012] ACTSC 151 and R v Ralston [2019] ACTSC 236 (Ralston), as well as the NSW decision of R v Abbott [2023] NSWDC 488.
| 71․ | The offending in those matters, save for Ralston to which I will come, involved sexually graphic communication, more explicit than those sent by the offender in this matter. In some instances, the communication involved actual plans to meet with the child, deception as to the offender’s age or the sending of sexually explicit photographs or pornographic images and videos. |
| 72․ | In Ralston, the message upon which the offender was initially sentenced was “I want to |
see your nude body…yes or no”. The victim was the 11-year-old daughter of the offender’s partner. The offender had serious mental health challenges. The offender was sentenced to 24 months of imprisonment, suspended immediately upon the offender entering a recognizance release order for three years. On appeal, R v Ralston [2020] ACTCA 47, the Court were unanimous that the sentence, while infected by material factual error as to the number of messages constituting the offence, was not manifestly inadequate. The decision of Loukas-Karlsson J at [142] includes a helpful summary of comparable cases in addition to those identified by the parties to which I have also had regard.
Determination
| 73․ | This being a Commonwealth offence, I must have regard to the matters set out in Part 1B of the Crimes Act 1914 (Cth) (the Crimes Act). A sentence must be of a “severity appropriate in all the circumstances of the offence”: s16A(1) of the Crimes Act. |
| 74․ | I have had regard to those relevant and known factors set out at s 16A(2) of the Crimes Act. |
| 75․ | I must not impose a period of imprisonment unless I am satisfied that no other sentence is appropriate in all the circumstances: s 17A(1) of the Crimes Act. |
| 76․ | I am satisfied that the offender’s moral culpability is reduced to a significant degree |
arising from his intellectual disability. The material overwhelmingly supports a finding that there was a direct causal link between the offender’s disability and the offending conduct. I also consider that the offender’s intellectual disability operates to reduce the weight to be given to punishment and to render the offender an inappropriate vehicle for general deterrence. There remains a need to give effect to specific deterrence in the sentence imposed given the offender’s awareness of the wrongfulness of his actions, as well as the potential for serious consequences should he be “caught” and the continuation of the offending notwithstanding that knowledge.
| 77․ | Rehabilitation is a significant consideration in light of the offender’s positive prospects. Clearly, those prospects will be further enhanced if the offender is required to engage in treatment and programs designed to assist him with some of the challenges he experiences arising from his intellectual disability, including social isolation, identifying social norms and an increase in independence. Because of the influence of those challenges on his offending conduct, engagement of this kind will reduce the risk of reoffending. |
| 78․ | Offending conduct of this kind is plainly very serious. The maximum penalty bespeaks its gravity. So too the legislative regime once a determination is made that the offending warrants a period of imprisonment, where s 20(1)(b)(ii) and (iii) of the Crimes Act operate to limit the prospect that an offender will receive a wholly suspended sentence. |
| 79․ | Taking into account the matters to which I have referred and notwithstanding that the objective seriousness of the offence on this occasion was at the lower end of the spectrum, I am satisfied that no other sentence other than a period of imprisonment is appropriate. |
| 80․ | This being a defined Commonwealth child sex offence (see s 3 of the Crimes Act), s 16A(2AAA) of the Crimes Act applies which requires that I have regard to the objective of rehabilitating the offender, including by considering when making an order whether to impose any conditions about rehabilitation. There are additional consequences arising from this offence being so defined. These were helpfully explained in Bredal after a meticulous overview of the relevant provisions contained in Part 1B of the Crimes Act and the effect of amendments specific to Commonwealth child sex offences which came into operation in 2020, his Honour concluded at [57]: The result is that, in sentencing for a Commonwealth child sex offence, when the s 17A threshold is crossed and a sentence of imprisonment is consequently to be imposed, and that sentence does not exceed 3 years, and the Court does not engage in an alternative to full-time imprisonment such as an ICO, there is a legislative presumption that, at least, some part of that sentence should be served in actual custody. |
| 81․ | Having determined that the s 17A threshold is crossed in this matter, the result described by his Honour is the position with respect to this matter unless I am satisfied that there are “exceptional circumstances”. The Crown did not oppose a finding that exceptional circumstances exist justifying the offender’s immediate release pursuant to s 20(1)(b)(iii) of the Crimes Act. |
| 82․ | The existence of exceptional circumstances justifying immediate release was considered |
by McWilliam AJ (as her Honour then was) in R v Mertell [2022] ACTSC 37 at [51]-[56]:
51.What constitutes “exceptional circumstances” is not defined in the Crimes Act. Having regard to [45] and [295] of the Explanatory Memorandum, this appears to have been deliberate to provide “significant judicial discretion”. The Explanatory Memorandum goes on to state (at [295]) that, “the phrase is not easily subject to general definition as circumstances may exist as a result of the interaction of a variety of factors which, of themselves, may not be special or exceptional, but taken cumulatively, may meet this threshold”.
52.That has led other judicial officers to state that the term is “not without controversy in this context”: see R v Payne-Moore [2021] ACTSC 125 at [107] per Loukas-Karlsson J. Both parties contended that the construction of “exceptional” in R v Kelly (Edward) [2000] 1 QB 198, quoted in R v Tootell ex parte AG [2012] QCA 273 at [18] (Tootell), while not binding, was helpful:
We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
53.In Tootell, their Honours went on at [24] to explain that:
[w]hat emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case.
54.The Crown submitted (broadly relying on the reasoning in Tootell at [18]–[27]) that the reasoning process required to determine whether circumstances are so exceptional as to warrant imposing a non-custodial sentence is relative to the objective seriousness of the offence. In other words, the more serious the offence, the more exceptional the circumstances required to rebut the presumption.
55.Cases where the application of the presumption has been considered in this jurisdiction include: R v Burch [2020] ACTSC 192 at [70]-[77]; R v Cusack [2021] ACTSC 75 (Cusack); and Cobcroft at [51]-[52]. There is also the decision of R v Hartley-Kennett [2021] ACTSC 88 but unlike the present case, the offender had spent some time in custody prior to sentencing and therefore Burns J considered (at [35]) that the provisions of s 20(1)(b) did not apply.
56.In Cusack, Elkaim J stated at [8]:
I acknowledge that there have been cases in which an ICO has been imposed (for example R v Burch [2020] ACTSC 192 and R v KB [2019] ACTSC 136), however with respect I am firmly of the view that cases of this type demand a period of full-time custody. I also note that in Burch the Chief Justice said that she would normally impose full-time imprisonment, but the circumstances were affected by the COVID-19 pandemic.
83․ In Mertell, her Honour considered that although the offender’s diagnoses of autism spectrum disorder and ADHD informed the appropriate sentence, the circumstances were not “exceptional” to justify the immediate release of the offender. In Bredal, as in Mertell, the Court similarly considered at [63] that “the greater the objective seriousness of an offence the more difficult it will be to establish the case is relevantly exceptional”.
| 84․ | The offender and offending in Mertell can be readily distinguished from the present matter; the offending conduct involved the possession of hundreds of files of child abuse material held by the offender and unlike in this matter, there was no direct causal link between the offender’s mental health diagnoses and the offending conduct. Mertell was successfully appealed by the offender though not in relation to her Honour’s finding on “exceptional circumstances”: Mertell v The King [2022] ACTCA 69. |
| 85․ | In Bredal, the Court citing Griffiths v The Queen [1989] HCA 39; 167 CLR 372 at [379] and R v Tootell ex parte AG [2012] QCA 273 at [20], endorsed an approach whereby relevant factors, in combination, may demonstrate the existence of exceptional circumstances. The factors relied upon for their combined effect will be factors relevant to the determination of the appropriate sentence more generally; at [61]. In Bredal at [101], the Court identified the following factors as relevant considerations in that matter as to the establishment of exceptional circumstances: [T]he respondent’s withdrawal; his cooperation with police and in the conduct of the trial; the absence of any attempt to misrepresent who he was, apart from lowering his age (which suggested a lack of planning or forethought in the commission of the offence); his lack of prior criminal history; the hardship which would be occasioned to his family; and that he had spent two days in custody. |
| 86․ | I have already found, consistent with the position adopted by the parties, that this is an example of the offence at the low end of objective seriousness. |
| 87․ | There is a clear nexus between the offender’s intellectual disability and the offending. Dr Nielssen considered that “the offender’s genetic abnormality was a major contributing factor to his offending in the sense that it contributed to his inability to form normal friendships and intimate relationships and to his pattern of communication in social media”. |
| 88․ | The offender clearly struggles, through no fault of his own, with judging appropriate social interactions. This is made plain in the nature of the communications with the young girl he thought he was messaging when he committed the offence. The communications are not overtly sexual. Taken as a whole they reveal an unsophisticated attempt to make an entirely inappropriate connection. While the offender clearly did consider that the ‘friend’, at some future point, was a potential intimate partner, the content of many of the messages are not focussed on that prospect, consistent with the offender’s general desire for social interaction and validation. |
| 89․ | The low objective seriousness of the offence and the extent of the operation of the |
offender’s intellectual disability on the circumstances of, and motivation for the offending, are compelling factors. Add to those considerations the offender’s immediate acceptance of responsibility, the absence of relevant criminal history, the significant effect upon the offender of a period of full-time imprisonment arising from his intellectual disability and the time that he did spend in custody, I am satisfied that exceptional circumstances exist. Further I am satisfied that an outcome that provides for the immediate release of the offender is one which is of a severity appropriate in all the circumstances.
| 90․ | The offender was assessed as suitable for an ICO. This is an additional sentencing alternative available for Commonwealth offences pursuant to s 20AB of the Crimes Act (the ACT does not have an equivalent provision to that identified in the Crimes (Sentencing Procedure) Act 1999 (NSW): see [55] in Bredal). The imposition of an ICO does not require a finding that exceptional circumstances exist. As the name suggests, the regime of supervision with which an offender is required to engage under an ICO is intense and necessarily demanding. Putting aside the challenges associated with the offender’s disability, no criminogenic risk factors have been identified; the offender does not have any concerning dependence on alcohol or illicit substances or any significant mental health challenges. As I have already acknowledged, the offender would benefit from engaging in programs and supports specifically targeting the challenges created by his disability. The material demonstrated that the offender is very well supported, with the potential for further supports being explored through the NDIS. I do not consider there to be utility in the offender being subject to the intensive supervision that an ICO would guarantee. |
| 91․ | An outcome which does not require the offender to spend a period in full-time imprisonment must not be mistaken for no punishment at all. The offender will be subject to a period of imprisonment arising from his offending conduct. The finding that I have made with respect to the existence of exceptional circumstances provides the offender the opportunity to remain in the community while serving that period of imprisonment and to continue along the pathway of rehabilitation that I am satisfied he has embarked upon. The order I make will require the offender to engage in treatment and supports and to be of good behaviour, such that any breach of it will provide the Court the opportunity to scrutinise whether the chance for the offender to remain in the community should continue. |
| 92․ | If not for the offender’s plea of guilty, the sentence of imprisonment would have been for |
20 months. As the sentence I will impose is less than 3 years of imprisonment, it is necessary to impose a recognizance release order: 19AC(1) and s 20(1)(b) of the Crimes Act, unless I determine to excise the discretion not to impose such an order: s 19AC(4).
I do not consider it appropriate in this matter to exercise that discretion.
Orders
93․ For those reasons I make the following orders:
(1)On the charge of using carriage service to groom a person under 16 years of age (CC2024/5484) the offender is convicted and sentenced to imprisonment for 15 months to commence today 27 September 2024 and to expire 26 December 2025 with a recognizance release order, permitting his release immediately with security of $250, without surety, and on the condition that he be of good behaviour for a period of two years from the date of his release on the recognizance release order which will expire on 26 September 2026.
(2)The conditions of the recognizance release order will be that the offender is to:
(i)be subject to the supervision of a probation officer appointed in accordance with the order;
(ii)obey all reasonable directions of the probation officer;
(iii)not travel interstate or overseas without the written permission of the probation officer; and
(iv)undertake offence-specific treatment or education programs that the probation officer reasonably directs.
I certify that the preceding ninety-three [93] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Taylor.
Associate: O Ferguson
Date: 27 September 2024
2
23
3