R v Oliver Sunley

[2019] NSWDC 477

District Court

New South Wales

Medium Neutral Citation:	R v Oliver Sunley [2019] NSWDC 477
Hearing dates:	8 February 2019
Date of orders:	08 February 2019
Decision date:	08 February 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Convicted – Sentenced to imprisonment for a period of 13 months. Released upon entering into a Recognizance Release Order under s 20(1)(b) of the Commonwealth Crimes Act. I recommend that Community Corrections have regard to the treatment plan that is set out in the report of Ms Duffy and I will direct the Registrar to provide a copy of both Ms Duffy’s report and Mr Ward’s report to Wollongong Community Corrections to assist them.
Catchwords:	CRIMINAL LAW – Sentence - Use carriage service to solicit child pornography – Use carriage service to send indecent material to a person under the age of 16 years.
Legislation Cited:	Commonwealth Criminal Code Commonwealth Crimes Act
Texts Cited:	Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	The Crown Oliver Sunley
Representation:	Counsel: C Newman – The Crown G Morrison – The Offender     Solicitors: Director of Public Prosecutions (Cth) – The Crown Morrisons Law Group – The offender
File Number(s):	2018/160463

SENTENCE

1. Oliver Sunley is before the Court in relation to two offences; one in breach of s 474.19(1) of the Commonwealth Criminal Code being use a carriage service to solicit child pornography material which matter carries a maximum period of imprisonment of 15 years, and a second offence in breach of s 474.27A(1) of the Commonwealth Criminal Code using a carriage service to send indecent material to a person less than 16 years of age. That matter provides a maximum penalty of seven years. I will have regard to the maximum penalties consistent with principle and authority, both as a benchmark and to undertake the exercise of comparing this case with the worst possible case. There are no charges to be dealt with on a schedule to s 16BA. Mr Sunley was committed for sentence upon his plea in the Wollongong Local Court.

2. It is common ground between the parties that his early plea assisted to administer the course of justice and that he ought be accorded some discount in line with Xiao v R [2018] NSWCCA 4 and cases that have followed it. I determine to indicate, although I am not obliged to indicate, the discount which will be 25% of the penalties that would otherwise flow. The offending in relation to sequence 1 took place on or about 4 November 2017. The offending in relation to sequence 2 took place between 4 November 2017 and 16 March 2018, albeit episodically. It is common ground that Mr Sunley was arrested on 22 May 2018 and has not spent any time in custody in relation to these matters.

3. The matter has proceeded today before me by the receipt of evidentiary material from both parties. I also received some helpful written submissions on sentence from Ms Newman who appears for the Commonwealth Director together with a schedule of potentially analogous cases for comparative purposes. Contained within the Crown material was the Sentencing Assessment Report from Community Corrections that I will come to in due course. On behalf of Mr Sunley I received a report from Anita Duffy, one of the most experienced psychologists providing assessments to these Courts over some many years and a short report was described as a letter of support from Alan Ward, psychologist, who has treated Mr Sunley from time to time.

4. After I received all the material I was assisted by some oral submissions. These remarks should be understood to be ex tempore reasons for the sentences that I have determined to impose on the offender. I am obliged to sentence Mr Sunley in accordance with Pt 1B of the Commonwealth Crimes Act and to take into account to the extent known a range of circumstances that are set out at s 16A(12) of the Act. In the circumstances of this matter I have regard also to s 17A which effectively imposes an obligation on the Court to determine to only sentence a Commonwealth offender to imprisonment if there is no other proper penalty available that serves all the purposes of sentencing. It is common ground in this matter that the s 17A threshold has been crossed and it is inevitable that Mr Sunley will be sentenced to periods of imprisonment. Having said that, it is contended on his behalf by Mr Morrison that any period of imprisonment should be in effect suspended upon him being released forthwith to a reconnaissance release order with appropriate conditions.

5. Ms Newman, very properly in my view, concedes that that is an available sentencing disposition when one carefully considers both the objective seriousness of the offending, the offender’s personal circumstances and relevantly the limited cohort of potentially comparative cases. I have regard to the need for adequate punishment relative to the maximum penalty for purposes of s 16A(1) and subs (2)(k). In terms of the nature and circumstances of the offences for the purpose of s 16A(2)(a) the facts are set out in an agreed document as part of the Crown bundle on sentence.

6. Given the offending is longer and more serious in relation to count 2, I propose to deal with that matter briefly. The offender communicated with a police officer who was assuming an online identity as a 13 year old girl. The fact that there was not an actual victim does not mitigate the offending. There were a range of communications by the offender to the person that I will describe as AOI, meaning “assumed online identity”, and commenced on 4 November 2017 with the offender sending AOI an image of himself lying in bed with his penis partially exposed with an invitation to whether the recipient wanted to effectively see it all.

7. There was then text communications back by way of Facebook messages that included the AOI indicating “I’m only 13”. The offender attempted to video call the AOI without success. Thereafter there was a set of images and a video file forwarded. It will sometimes be the case in these offences that the communications of the AOI can be seen to encourage the offender to greater exposure or more sexualised behaviour. None of that material is available in this case. Most of the communications by the AOI to the offender were consistent with reminding him of her age and indicating that she had not been involved in anything of this nature before. That is my summary.

8. In due course, apart from forwarding images of the entirety of his penis and his penis being held erect, he ultimately sent the AOI a video file that was 14 seconds in duration and included him masturbating his erect penis. Some days later, on 7 November, 2017 the offender sent to the AOI an image of himself sitting on a chair naked holding his erect penis in his hand and asking the AOI whether she liked the image to which there was no response. Some months later, on 13 March, 2018 after asking “Do you want to see some more?” with no response from the AOI the offender sent her an image with a blanket covering his groin and his pubic hair being visible and thereafter a further image of himself holding his erect penis with a text message saying “You like?” which was not the subject of any response from the AOI.

9. Finally on 16 March 2018 the offender sent to the AOI a further picture of himself sitting naked in a chair with his penis erect, thereafter a ten second video of him masturbating his erect penis, an attempt to video call the AOI which she declined for obvious reasons. After requesting whether he could call the offender communicated with the AOI that she could see his “cock” if she wished, to which the AOI replied “Really? You don’t care that I’m 13” and the offender responded “I didn’t know”. Thereafter a video of eight seconds in duration was sent to the AOI that included the offender masturbating his erect penis. Two further videos were also, each of 15 seconds in duration, were sent of him masturbating his erect penis. Those are the details of the offending in relation to count 2.

10. In relation to count 1, in and around the communications that I have already described and after the offender had sent a video of him masturbating, there was communications consistent with the offender inviting the AOI to send naked pictures to him including ultimately saying “It’s not hard. Just get naked and take pics of yourself”. No images were ever transmitted in relation to the offender’s solicitation. Both offences are conduct designed to degrade and exploit juveniles. Intermediate Courts of Appeal have emphasised the need for penalties to be imposed that recognise the harm to children by this type of activity and to deter both offenders as a general class and an offender personally from behaving in the same way.

11. The objective seriousness of count 1 is towards the lower end of the range simply because there was an absence of any coercion. There was a request for nude pictures which was unsuccessful and the evidence before me discloses one single day’s activity limited to some minutes of communication. In terms of the nature and circumstances of the offending for count 2 the matter can be properly seen as a course of conduct because it took place over about four months, accepting that there were two episodes in November 2017 and then two further episodes within March 2018.

12. That said, apart from the explicit content of the conversation the images forwarded were graphic in the sense that they involved an erect penis and the act of masturbation, and there is nothing in the communications, as I have said, backwards and forwards between the offender and the AOI that suggested that any of those matters were forwarded at the request of or with any kind of perceived consent by the AOI. Indeed the offender continued to send images with queries as to whether the recipient liked the photographs without ever receiving an affirmative response.

13. Against that it is relevant to consider that there was only one victim. There was no attempt within the material to coerce the victim into silence as will sometimes be a circumstance that will make offending more serious. Although, as I have observed, the offending took place over a four month period it was limited to four daily episodes.

14. I had regard to the fact that for the purposes of s 16A(2)(j) and (j)(a) there is a need for the penalty to be both generally and personally deterrent. It is for those reasons in particular that a sentence of imprisonment is inevitable. I have already dealt with the issue of the offender’s plea of guilty, which was early and facilitated the course of justice. The purposes of s 16A(2)(f) as to the offender’s contrition and (2)(n) as to prospects of rehabilitation, the offender is remorseful. He has already commenced to undertake some psychological treatment and has been carefully assessed by a relevant professional in relation to issues that attach to his psychological difficulties.

15. Although one would normally exercise caution about particular weight to be given to psychological assessments when the offender has not given sworn evidence, here there is a concordance of opinion between the treating psychologists; the assessing psychologist and the material more independent from Community Corrections and I am prepared to place some weight on that material.

16. As to the offender’s age, character, antecedents and other issues for the purposes of s 16A(2)(m) the offender is 23 years old. He has a record of other convictions which portray some of his past difficulties with prohibited drugs. Apart from generally denying him leniency that would otherwise flow to somebody with no criminal convictions at all, it is conceded by the Crown that his other convictions are unrelated and to my mind have less work to do in the sentencing exercise than if he were being sentenced now for offences consistent with his past offending.

17. Of course it is trite to say that prior good character has less weight in these types of offences than otherwise. The offender, as I have indicated, has already submitted himself for some treatment. It is clear that he has a range of psychological difficulties. He seems to suffer on all the material from ADHD. He clearly has a diagnosis of a major depressive condition, not all of which is related to his current predicament. He has two supportive parents who are in Court with him today whom he lives with, with three other siblings, each of whom are making their way in life.

18. After an intermittent pattern of employment that has not entirely been interrupted because of matters within his control, it is clear that the offender is working productively with his father and his older brother as a boilermaker. The material before me suggests that both his personal circumstances and his employment are matters that mitigate, along with his submission to treatment, to the point that I can reach a view that he has good prospects for rehabilitation. One of the reasons for that is that Community Corrections in an actuarial way assess him as being a low to medium risk of re-offending.

19. He is assessed as an above average risk by the in-house psychologist but one of the reasons for that is that he reported that he had no memory of this matter. That material is not relied on him at sentence and although it is clear that one of the motivations for the offending was some sexual gratification against the backdrop of drug intoxication, there is no assessment before me that, either positively or negatively, opines in relation to any paedophilia. The material before me on balance suggests that this behaviour was driven by a desire for some sexual gratification in general in the circumstances of a lonely and psychologically isolated young man.

20. I recommend that Community Corrections when considering the penalties that I impose today have regard to the treatment plan that is set out at pages 10 and 11 of Ms Duffy’s report and I will direct the Registrar to provide a copy of both Ms Duffy’s report and Mr Ward’s report to Wollongong Community Corrections to assist them. Just stand up Mr Sunley.

21. In relation to both the offences you are convicted. In relation to both of the matters you are imprisoned for a period of 13 months to commence today, being 8 February 2019, and expiring on 7 March 2020. You are released forthwith upon you entering into a recognizance release order under s 20(1)(b) of the Commonwealth Crimes Act.

22. The conditions will be that yourself in the sum of $1,000 without lodgement of surety; that you be of good behaviour for a period of two years; that you report to Wollongong Community Corrections within seven days of today and submit yourself to all supervision and treatment as directed by that service (which may include ongoing treatment by Mr Ward or other appropriate professionals). You can take a seat Mr Sunley.

23. Mr Sunley, I hope you can make use of the not insignificant chance that you've received today. Effectively there is a 12 month period of imprisonment that floats within an obligation to be of good behaviour for two years.

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Decision last updated: 09 September 2019