R v Olley

[2023] NSWDC 219

District Court

New South Wales

Medium Neutral Citation:	R v Olley [2023] NSWDC 219
Hearing dates:	3 April 2023
Decision date:	03 April 2023
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Community Corrections Order for 3 years.
Catchwords:	CRIME - SENTENCE - transmission of child abuse material using a carriage service.
Legislation Cited:	Criminal Code (C'th), s.474.22(1); Crimes Act 1914 (C'th) s20(1b)(ii).
Category:	Sentence
Parties:	Rex (The Crown) Mark John Olley (The Offender)
Representation:	Mr Chen (Solicitor C'th DPP) Mr Renard (Solicitor for the offender)
File Number(s):	2022/18441
Publication restriction:	Nil

Judgment

1. Mark John Olley appears for sentence today in relation to one offence and that is transmitting material being child abuse material by using a carriage service. This involves a contravention of s 474.22(1) of the Criminal Code (C'th).  The maximum penalty for the offence is imprisonment for 15 years. 

2. In the context of that penalty, the Crown has drawn attention in its written and oral submissions that the effect of s 20(1b)(ii) of the Crimes Act 1914 (C'th) is that there is a presumption, in child sex offences, for an actual term of imprisonment - unless there are exceptional circumstances that justify an offender being released immediately on a recognizance release order or a community corrections order.

3. The facts surrounding the offending can be summarised as follows. 

4. In November 2020, during the height of the coronavirus pandemic, Mr Olley (who had become unemployed as a consequence of the pandemic) was using methylamphetamine in a significant amount.

5. On three dates, namely, 28 November, 26 December and 11 December 2020, Mr Olley used a carriage service (a mobile phone) to have conversations with a person in Victoria. 

6. In each of those three telephone calls (which I pause to observe were relatively brief in length - at least the offending aspects of them) there was explicit discussion between the offender and the other participant about sexual matters concerning young girls.  In the 28 November conversation, there was an express reference to the age of the person about whom the participants were discussing which, clearly and unambiguously, established that what was being discussed was a prepubescent girl.  I pause to observe that, but for that express reference, the balance of the material is, as I have sought to explain during submissions today, somewhat ambiguous. 

7. These conversations were far less graphic than other conversations which the Court has unfortunately had to be familiar with. 

8. It is necessary for the Court to make an assessment of the objective seriousness of the offending for an offence of its kind.  As has been submitted by both the Crown and the solicitor for the offender, the type of offending captured by this offence has a wide range, some of it extremely confronting.  That is not to say that the offending by this offender is not serious.  All child abuse offending is, in and of itself, serious. But, within the range captured by this offence, this offence is toward, if not at, the bottom of the range of objective seriousness. 

9. There are no additional aggravating factors.

10. The additional subjective circumstances of the offender can be also briefly stated. 

11. He is now a man in his mid‑forties. 

12. He has no prior sexual offending, although he does have some non‑sexually based offending, which means that he is not entitled to the leniency which, in appropriate circumstances, can be extended to a first offender.  

13. Mr Olley's childhood was a complicated one.  He was adopted by his (adoptive) parents.  He has a sister who was also adopted. But, apart from the fact of adoption, he had an unremarkable childhood.  He was brought up in a loving and caring family.  His adoptive parents were generous and loving to him, and to his step‑sister. 

14. Mr Olley went to good schools but he was unable to engage meaningfully with academic life, in part because of congenital eye defects.  He sustained bullying at school and did not complete the high school certificate. 

15. Upon leaving school, and until the pandemic, Mr Olley worked hard and honestly.

16. Unfortunately for Mr Olley, and many others, the pandemic destroyed his business and he became more reclusive than he had already been. 

17. In the course of this recluse, he turned to methylamphetamine.  Mr Olley had used alcohol and cannabis at earlier times of his life but, without professional assistance, he had been able to give up those drugs.  Similarly, since his arrest in relation to the current matter, he has, without professional assistance, been able to address and give up methylamphetamine.  But the underlying causes of Mr Olley abusing alcohol, cannabis and methylamphetamines have not been professionally addressed.

18. Mr Olley has had a series of relationships with adult women which, for various reasons, have not been long‑term in terms of cohabitation.  There is evidence that some of his ex‑partners have been manipulative of Mr Olley. 

19. Mr Olley entered a plea of guilty at the earliest opportunity and, taking into account the somewhat ambiguous nature of the material, there is real value in the plea of guilty. 

20. Mr Olley has expressed remorse for his offending to the psychologist Mr Wong, and to the author of the sentencing assessment report. Frequently, second hand expressions of remorse are approached with some scepticism.  In Mr Olley's case, however, I accept that those expressions of remorse are genuine.

21. There is a complicating factor in Mr Olley's case which is present in almost every child abuse matter that I have had to pass sentence on in 14 years.  And that is, Mr Olley does not admit, and indeed expressly denies, having a sexual interest in children.  In this regard, I am not persuaded that Mr Olley is deliberately seeking to mislead the Court.  He, like many others who make such statements, in my view, is unable to confront reality.  The drugs he took may have been disinhibiting, but disinhibition does not create sexual interest.  It releases the person to express more deeper aspects of his personality.  And that is what has been revealed in those three phone conversations that Mr Olley participated in.

22. In these circumstances, I regard Mr Olley's prospects for rehabilitation as being guarded.

23. I earlier referred to the fact that, in early childhood, Mr Olley had difficulty with his eyes.  Those difficulties have only gotten worse over the years, and there is evidence from the Westmead Hospital to the effect that he requires some serious surgical intervention in coming days. 

24. The psychologist has also pointed out the risks to which Mr Olley would be exposed if he were to receive a term of fulltime imprisonment. 

25. By having regard to the totality of the material placed before me, I am satisfied that there are exceptional circumstances in Mr Olley's case for not imposing a term of fulltime imprisonment, they being: my assessment of the seriousness of the offending; the brevity of the occasions on which it occurred; the need for meaningful psychological engagement; and the physical ailments from which Mr Olley suffers. 

26. I am therefore satisfied that imprisonment is not the most appropriate means of dealing with this offender.

27. Rather, in my view, a community corrections order for three years is the most appropriate penalty to impose upon him. 

28. The conditions of that order are:  first, that he does not offend; secondly, that he is supervised by New South Wales Community Corrections; and thirdly, that he accepts and undertakes all psychological intervention which might be recommended by Community Corrections for as long as the relevant supervising officer and/or the relevant health professional consider necessary. 

29. I direct Mr Olley to report to the community corrections at Blacktown before 4pm tomorrow, first contact by telephone. 

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Decision last updated: 23 June 2023