R v Newbond - [2020] NSWDC 19

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Newbond [2020] NSWDC 19
Hearing dates: 4 February 2020
Decision date: 04 February 2020
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Aggregate term of imprisonment of 7 years with a non parole period of 3 years 6 months.

Catchwords: CRIMES - SENTENCE - sexual intercourse with a person over 14 years but under 16 years of age; procuring a child for unlawful sexual activity.
Legislation Cited: Crimes Act 1900 (NSW), ss 66C(3) and 66EB(2)
Category: Sentence
Parties:
Regina (Crown)
Bradley Newbond (Offender)
Representation:
Ms Walshe (ODPP Campbelltown)
Mr Shukoor (Counsel for the offender)

File Number(s): 2018/00234887
Publication restriction: Non publication order made of the name of the victim or anything that might directly or indirectly identify her.

Judgment

Bradley Newbond, you appear for sentence today in relation to three principal offences.
Two of those principal offences were having sexual intercourse with a person over the age of 14 years but under 16 years. These are sequences 1 and 2.
These offences involve contraventions of s 66C(3) of the Crimes Act. The maximum penalty for each offence is 10 years’ imprisonment and there is no standard non-parole period for that offence.
The third principal offence, which is sequence 4, is the offence of procuring a child for unlawful sexual activity.
This offence involves a contravention of s 66EB(2) of the Crimes Act. The maximum penalty in relation to that offence is 12 years’ imprisonment and there is a standard non-parole period of five years imprisonment.
In relation to that third principal offence you have asked me to take into account three matters on a Form 1, which I have certified. Those matters, being sequences 3, 5 and 6, are each a matter of having sexual intercourse with a person over the age of 14 years but under the age of 16 years.
Your offending extended from 1 January 2013 until 22 November 2015, that is, a period of almost three years and the object of your offending was the same person.
The circumstances surrounding your offending conduct are, in part, contained in a statement of agreed facts. But that statement has, in some respects, been added to by the contents of the psychologist’s report which has been tendered on your behalf in the sentence hearing.
Slightly recast by me as to style but not substance, the facts surrounding your offending can be summarised as follows.
In January 2013 you were 31 years of age and the victim of your offending was a 13 year old schoolgirl.
By the time you were 31 you had endured a number of years of increasing mental health issues, which I shall return to later in these remarks, but the effect of the mental health issues from which you were suffering when you were 31 were considerable. You were, effectively, socially isolated and suffering considerable anxiety and distress and depression.
You had had, before this date, successful personal relationships with adult women; and there is nothing in the material before me to suggest that there was anything unusual about the nature of your relationships with those women.
But in January 2013, and for reasons not made clear in any of the material before me, you joined a Facebook group for people who were interested in a particular form of sexual gratification, i.e. bondage and discipline/sadomasochism.
How it was that you developed an interest in that form of sexual activity, or for how long, is not revealed by any of the material before me. But I accept that, when you joined that group, you were not expecting, at least initially, to encounter a child - but you did.
The victim of your offending was also a member of that Facebook group. How it came about that a 13 year old girl was accessing such a Facebook group is something I do not know anything about - but it is disturbing.
When you first made contact with her, she told you that she was 19 years old and you told her that you were 23.
You and she communicated for a few months, at the end of which each of you revealed your real age to the other.
You then knew that this girl in this group was 13 years old. You should have discontinued – immediately - any and every form of communication with her, even if, as you say, you had become fond of her and had formed a bond with her because you and she were able to share thoughts about your own sadnesses and unhappiness in life. You should have realised that there was something seriously wrong with a 13 year old girl being on this form of Facebook grouping.
But you did not discontinue your contact with her.
It got to the point where you and she would communicate with each other via Skype almost daily - and sometimes twice a day - and these Skype calls were not harmless; they involved sexual matters between you, a 31 year old man, and her, a 13 year old girl.
The material before me does not allow me to conclude in great detail what the sexual nature of the material was. Specifically, I am unable to conclude that there were BDSM elements to those discussions – because, if there had been, that would have seriously aggravated the offending and I do not speculate adversely to you about that matter.
But what did occur in these Skype calls is that you would ask her to masturbate herself and talk sexually to you - which she did. And the agreed facts tell me that you “performed sexual acts” upon yourself for her to watch, from which I conclude that you, too, masturbated for her.
This contact with that child in that fashion continued for almost two years.
It is your communications with her by Skype which forms part of the third principal offence of procuring a child for sexual activity - but it does not constitute the totality.
In April 2015 you were 32 years old and she was 15 years old.
At the end of the two years of the Skype communications, you actually travelled from Melbourne, where you were living, to Narellan, which was near to where the victim lived. You came up for the Easter long weekend. You remained there from 3 to 6 April 2015.
On that Friday, the victim snuck out of her house. You picked her up at the end of a street and drove her to the Motor Inn. Clearly you and she had planned this activity. You took her to the Motor Inn where you lay on the bed and watched television; and then you drove her home.
But early the next day, between 1 and 3am, she again left her parents’ house and again you picked her up from the end of the road. You took her back to the Motor Inn and there you and she had penile/vaginal intercourse.
This was the first time that that child had had sexual intercourse. This is sequence 1, the first of the principal offences.
I have not been told (and I have not been told by agreement between the parties) whether you didn't wear a condom or whether you ejaculated into that child. If either of those matters had been proved beyond reasonable doubt, or admitted, it would have been a serious aggravating factor. But in the absence of evidence or agreement, and because it is an aggravating factor, I shall not speculate about that adversely to you.
The next night, Saturday 4 April, the same procedure occurred. In the early hours of the morning she snuck out of her parents’ house, met you at the end of the street, went back to the Motor Inn and a further act of penile/vaginal intercourse took place.
This is sequence 5 on the Form 1. Again, I have not been told whether there was ejaculation or whether you used a condom.
The following night, Easter Day, this child again slipped out of her parents’ house. You picked her up and took her back to the Motor Inn where there was yet another act of penile/vaginal intercourse.
This is sequence 6. And again the Court has deliberately not been told whether there was ejaculation or whether you didn't wear a condom.
Between July and August 2015 you returned to New South Wales to meet the victim. You arranged to meet her after school. She got into your car, intimacy developed between the two of you in which you digitally penetrated her vagina.
This is sequence 2.
That night a familiar pattern was repeated. The child snuck out of her parents’ home and, by arrangement with you, you met her and you and she drove to a motel in Liverpool. There, there was yet another act of penile/vaginal intercourse; and again the Court has not been told whether there was ejaculation or whether you didn't wear a condom.
That is sequence 3.
At some point in 2017, the victim was at high school and participated in a lecture on cyber safety, from which she concluded or realised that what you and she had been doing had been wrong. You and she still communicated; and you both told each other that you loved each other. The “relationship”, for want of a better term, nevertheless came to an end.
In January 2018 the victim told her mother about what had happened and in July 2018 you were arrested.
In relation to the objective seriousness of the principal offences for offences of their kind: sequence 1 is slightly below the mid-range; sequence 2 is below the mid-range; and sequence 4 is a mid-range offence.
The nature of the three matters on the Form 1, to be taken into account with sequence 4, are such that there will be a meaningful increase in the sentence for sequence 4.
There is no victim impact statement from the victim. There is no clear evidence as to what, if any, adverse consequences she has felt. In fact, there is conflicting material. There is, in the agreed facts, the communication you had with her after she had the cyber communication lecture where she, after the relationship had finished, told you that she had loved you and you had loved her. On the other hand, there is some material contained in the psychologist’s report in which you seem to accept or know that some damage might have been done to her.
What damage you did to a person who was already on Facebook at 13 years of age looking at BDSM I am not prepared to speculate about. It is certainly not an aggravating factor.
The Crown has submitted that there is an additional aggravating factor, namely that, insofar as that component of the procuring which took place over Skype, it was aggravated because it took place in the victim’s home. That submission, with respect, I think is misplaced. When one talks about an aggravating factor being that it occurred in the victim’s home, it is usually in the context of the home having been involuntarily invaded by the offender. Here, this victim invited you into her home, even though she was a child, and I do not regard that factor as an additional aggravating factor.
Your subjective circumstances have come before the Court in three forms. First, through your own affidavit. Secondly, through the contents of the psychologist’s report. Thirdly, through your evidence in the witness box in which you confirmed the accuracy of all that is contained in the psychologist’s report.
You are now 37 years old and you came from a loving and caring family.
There was nothing confronting about your childhood, subject to this: your education seems to have been disrupted because you struggled with reading and spelling. There is no express evidence that you suffer from dyslexia but it may well have been that that was why you were unable to progress through school. In addition to your difficulties with reading and spelling, however caused, you had a significant health issue of asthma and you were absent from school for significant periods of time. That had an adverse effect on your educational development - as well as your confidence and self-esteem - and you became, at a young age, an introverted person with few friends of your own age.
You were very close to your mother, as many sons are, and at 17 your mother died. She, like you, suffered from asthma and it was a severe asthma attack that caused her death. For a long time you thought it was your fault. It was not; but you wrongly thought it and that caused you years of pain. You have felt self-hatred for years because you have been unable to accept that her death was not your fault.
You have lived with a long term desire to die. According to the psychologist, for most of your adult life you have wanted to die from an accidental death, not by your own hand, so that your family would not be burdened by the additional pain of suicide.
You worked for your family business, which failed. This added to your state of despondency and anxiety.
You sought to help the family business by taking on a second job. This only made you more socially isolated, lonely, tired, and emotionally exhausted.
And it was in this period, and by a route that is not revealed, that you came to be involved with this Facebook group of people interested in BDSM. It may be that in your distress, in your desire to die, that there is some explanation for how you became involved in such a group - that is something that the psychologist has not developed. But it does seem to me to be on the cards to provide some possible explanation.
You have no offending of any kind before or since. No prior offending with children; no prior offending of any kind.
Since you were arrested, you have developed a new relationship with an adult woman who is present in court today, with your father, to support you.
Whilst the fact that you have no prior offences and are a person of good character is of reduced significance for an offence of this kind, it does remain relevant.
Amongst other things it helps me make an assessment of your prospects of rehabilitation.
That assessment is difficult, Mr Newbond, because I really do not know (from the psychologist’s report or otherwise) why an adult man would seek the company of a 13 year old girl after he found out how old she was.
Why you continued in that is not really explained, so far as I am concerned, by the psychologist’s report. Yes, you were anxious and you were depressed; but why you formed a relationship with a 13 year old girl to deal with it; and how you might address that problem in the future has not really been addressed by the psychologist’s report. That causes me some difficulty in assessing your prospects for rehabilitation.
Another difficulty is that you have not had sustained psychological intervention since your arrest.
Nevertheless, I have formed the view that your prospects for rehabilitation are reasonable if you obtain effective psychological intervention; and those prospects would be enhanced by a longer period on parole.
Because of your mental health issues, Mr Newbond, the principles of general deterrence are somewhat reduced. General deterrence is the notion that the sentence should be one that deters others from offending against children. But in relation to offences against children, general deterrence and the protection of the community are the paramount considerations.
In your case specific deterrence is also significant, that is, a sentence has to be fixed that will deter you from doing this again.
No sentence (for any of these offences) other than full time imprisonment is appropriate, precisely because of the need to protect children from sexual predators - and, Mr Newbond, that is what you were.
I intend imposing an aggregate sentence.
It is therefore necessary for me to state the indicative sentences which underpin that ultimate aggregate sentence.
You pleaded guilty at the first available opportunity and accordingly you are entitled to a 25% discount off each of the indicative sentences.
In relation to sequence 1, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 4 years. Because of the discount of 25%, the indicative sentence is 3 years.
In relation to sequence 2, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years. Because of the plea, the indicative sentence is 1 year and six months.
In relation to sequence 4, and taking into account the three matters on the Form 1, the indicative sentence is 7 years imprisonment. After the discount of 25%, the indicative sentence is 5 years and 3 months; and the indicative non-parole period is 2 years and 7 months.
In the result, Mr Newbond, for the three principal offences I sentence you to an aggregate term of imprisonment of 7 years.
Absent a finding of special circumstances, the non-parole period should be 75% of that head sentence. I am going to make a finding of special circumstances to vary the ratio; first, because, as I have said, your prospects of rehabilitation would be enhanced by a longer period on parole; secondly, this is your first time in custody; thirdly, because of your unresolved mental health issues’ and, fourthly, because of your physical disability, namely, your acute and chronic asthma condition.
Accordingly, I fix a non-parole period of 3 years and 6 months to date from today 4 February 2020 and which will expire on 3 August 2023.
I fix a balance also of 3 years and 6 months to date from 4 August 2023 and which will expire on 3 February 2027.
You will now go with the officers.

Amendments

21 February 2020 - Paragraphs [30], [34] and [37]: the word "wore" change to "didn't wear".

Decision last updated: 21 February 2020

Medium Neutral Citation:	R v Newbond [2020] NSWDC 19
Hearing dates:	4 February 2020
Decision date:	04 February 2020
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 7 years with a non parole period of 3 years 6 months.
Catchwords:	CRIMES - SENTENCE - sexual intercourse with a person over 14 years but under 16 years of age; procuring a child for unlawful sexual activity.
Legislation Cited:	Crimes Act 1900 (NSW), ss 66C(3) and 66EB(2)
Category:	Sentence
Parties:	Regina (Crown) Bradley Newbond (Offender)
Representation:	Ms Walshe (ODPP Campbelltown) Mr Shukoor (Counsel for the offender)
File Number(s):	2018/00234887
Publication restriction:	Non publication order made of the name of the victim or anything that might directly or indirectly identify her.