R v Pankhurst

[2019] NSWDC 719

District Court

New South Wales

Medium Neutral Citation:	R v Pankhurst [2019] NSWDC 719
Hearing dates:	20 November 2019
Decision date:	27 November 2019
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Non-custodial sentence. For orders see [54]
Catchwords:	Two offences of aggravated indecent assault; one count of use carriage service to solicit child pornography material; one count of transmit indecent communication to person under 16 years; young offender.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Code 1995 (Cth)
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Director of Public Prosecutions (Cth) Thomas Charles Pankhurst (Offender)
Representation:	Counsel: Mr P Winch (Offender)   Solicitors: Ms S Foggo (Crown)
File Number(s):	18/21607618/20483018/331610
Publication restriction:	NB s 578A(2) of the Crimes Act 1900 applies to this matter – no publication of any matter which identifies the victims or may lead to the identification of the victims.

REMARKS ON SENTENCE

1. The offender is to be sentenced in respect of the following four offences to which he has pleaded guilty:

Count 1 – Aggravated indecent assault pursuant to s 61M(2) of the Crimes Act 1900.

Count 2 – Aggravated indecent assault pursuant to s 61M(2) of the Crimes Act 1900.

Sequence 1 – Use carriage service to solicit child pornography pursuant to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth).

Sequence 2 – Use carriage service to transmit indecent communication to person under 16 years pursuant to s 474.27A of the Criminal Code 1995 (Cth).

2. Counts 1 and 2 carry a maximum penalty of 10 years imprisonment and a Standard Non-Parole Period of 8 years in respect of each offence. Sequence 1 carries a maximum penalty of 15 years imprisonment, and Sequence 2 a maximum penalty of 7 years imprisonment.

3. The offender has also asked to be taken into account two matters on a Form 1 in respect of Count 1. They are two counts of aggravated indecent assault (Sequence 1 and Sequence 3) which occurred on the same day as the offence in Count 1, that is, 14 May 2018. The offender has admitted his guilt in respect of each of those matters.

4. The offender was born on 4 April 2000 and was committed to stand trial at the Queanbeyan District Court on 19 August 2019. On the first day of the trial the offender pleaded guilty to the above charges on an amended Indictment. One previous charge had been dropped from that Indictment. It was not in dispute that he was entitled to a 5% utilitarian discount on sentence in respect of his late plea of guilty to each of the above charges.

The sentence hearing

5. The sentence hearing took place at Goulburn District Court on 20 November 2019. The Agreed Facts in relation to each of the charges may be summarised as follows.

Count 1

6. On Monday 14 May 2018 the offender was attending a school athletics carnival at a park adjacent to Yass High School. During the afternoon, the offender and a female student HA, who was 14 years of age, left the carnival and walked to a remote area near the Yass River. The offending in Count 1 involved the offender hugging the victim and grabbing her breast with his hand, following which, she immediately stood up and started to walk away.

7. The first aggravated indecent assault offence on the Form 1 occurred prior to Count 1. The victim and the offender had sat down and the victim was resting her right arm across her right leg. The offender took hold of the victim’s right hand and pushed her hand down between her legs onto her vagina on the outside of her clothing. The offender said:

“You like that don’t you?”

The victim said:

“No I don’t. Can you please stop?”

The offender responded:

“It sucks being a boy cause you get boners.”

8. The second aggravated indecent assault charge on the Form 1 occurred as the victim was walking away from the offender, following Count 1. The offender took hold of the victim’s bottom with both his hands and pushed her bottom cheeks together. The victim then returned to the athletics carnival.

Count 2

9. On 25 June 2018 the offender was a year 12 student. The victim, LB, who was 12 years of age at that time, was a student in year 7. During the fourth period of school, the victim had gone to the girls’ toilet and when she came out of the toilet the offender was standing near the entrance. The offender said:

“Do you have a crop top on?”

The victim replied:

“Yeah, why do you need to know?”

The offender responded:

“Just wondering.”

10. The offender then placed his hand down the back of the victim’s track pants, and into the inside of her underwear. The offender put his hand underneath the victim’s vagina, towards the front. The victim said “No”, and punched the offender in the shoulder. The offender started to walk away from the victim and said:

“If you tell anyone, you’re going to be dead.”

11. The following day the victim disclosed what had occurred to her teacher and police were notified. The offender was arrested on 3 July 2018.

Sequence 1 – Use Carriage Service to solicit child pornography material

12. Between 22 October 2018 and 23 October 2018 the offender solicited material using a carriage service, the material being child pornography material. In August 2018 police commenced investigations into the offender after receiving information that he was targeting a 12 year old female for sexual activity through the social media application “Instagram”, using a pseudonym. The investigation involved a covert operation, by which the police began to communicate with the offender on Instagram on 8 October 2018, and later through the social media application Skype from 22 October 2018.

13. On 22 October 2018 the offender utilising his own name, engaged in an online conversation with the police undercover operative. The offender provided a mobile telephone number ending in 519 to enable the operative to locate him on Skype. At 9.26pm a conversation between the offender and the operative took place on Skype, in which the offender asked the operative how old she was, to which the operative responded she was 13 years of age. The offender stated he was 14 years old. During the conversations that took place between the offender and the operative on 22 and 23 October 2018, the offender made numerous requests of the operative to send him explicit images of herself.

14. On 22 October 2018 the offender made requests as follows:

“9:52pm

Offender: Do you do eny thing sexually

CEIU27: Nah iven ever really done anything b4

Offender: Have you ever sent nudes

9.49pm

CEIU27: like selfie in the nude?

Offender: Yes

9.54pm

CEIU27: never

Offender: Can I see one

9.56pm

CEIU27: what u mean?

Offender: Can I see you nude

9.57pm

CEIU27: oh idk

CEIU27: ive never done anything like that

CEIU27: do u do it?

10.00pm

Offender: Can I see your Virginia”

15. On 23 October 2018 the offender made the following requests:

“10.20pm

Offender: Can I see you touching your self

10.21pm

CEIU27: how u mean I am not there

Offender: Can I see a video or photo

CEIU27: haven’t got any like that

10.22pm

Offender: Can you take eny

…

10.24pm

Offender: Because your cute

CEIU27: like I said I don’t thinks so but why u want norty pics

10.26pm

Offender: Because I want to see some from u

…

10.29pm

Offender: So can I see

CEIU27: don’t really know u that much

Offender: Come on please just one

…

10.56pm

Offender: No what you wearing

10.57pm

CEIU27: just pjs y

Offender: Eny underwear or bra

10.58pm

CEIU27: just undies

Offender: What colour

CEIU27: pink

Offender: Can I see

10.59pm

CEIU27: well if you were here probs

Offender: Can I see a photo”

Sequence 2 – Use carriage service to transmit indecent communication to a person under 16 years of age

16. At 10.42pm on 23 October 2018 the offender transmitted an image of a penis to the operative. Following that, further conversation took place between the offender and the operative of a sexual nature which is unnecessary to repeat here.

17. On 29 October 2018 police executed a search warrant at the offender’s residence, during which, the offender made the following admissions:

• He talks to people on the internet and get pictures off the internet

• He doesn’t pay attention to the age of the people he talks to and they don’t send their age to him

• He doesn’t know who they are

• He is not trying to be bad in the conversations

• He talks to people via Snapchat and Instagram

• He doesn’t do anything on Skype

• He only got Skype about two or three days prior to the search warrant

• His Facebook username is Tom Pankhurst

• He has three Instagram accounts, namely, Tom Pankhurst, Jim and Ronald

• He only has separate accounts because no one talks to him

• He has a Snapchat account in the name of James Donald which he has had for a little while

• He tried to delete this account but couldn’t

18. Examination of the offender’s mobile phone revealed images which included the image of a penis which matched the image the subject of sequence 1, which was forwarded to the operative on 23 October 2018. Within the Skype application saved on the offender’s phone was the conversation between the offender and the operative outlined above.

19. Exhibit A contained Victim Impact Statements from the two victims in Counts 1 and 2, which are referred to below.

20. Exhibit A also contained a Sentencing Assessment Report under the hand of Ms L Hignett dated 31 October 2019. In that report the author noted that the offender had no documented history of anti-social behaviour. Under the heading “Attitudes”, the author noted that the offender did not believe his behaviour was inappropriate or sexual in nature and stated that he was only “mucking around” with the victims. He went on to state that he would not have similar interactions with a male person. The offender gave no explanation for the offences stating that he did not know why he committed the offences, other than to say he was “just mucking around”.

21. The author noted that the offender had been diagnosed with Attention Deficit Disorder and Oppositional Defiant Disorder at age nine, and had demonstrated little insight into his offending behaviours. In respect of the use of the carriage service to send indecent material, the offender stated that he believed that because the image was available on the internet that it was “okay to send it”. He was assessed as being a medium risk of re-offending. If subject to supervision, Community Corrections would implement the following supervision plan:

• The offender will be engaged in cognitive behavioural therapies to address his offending behaviours. This will include: Assessment and planning, interpersonal relationships, managing impulsivity and communication.

• He will be required to engage with psychological services including the CSNSW psychologist.

The offender’s evidence

22. The offender tendered a report from Ms L Morris, forensic psychologist, dated 29 July 2019. Following assessment for Adaptive Behaviour Composite and Full Scale Intelligence Quotient, the author concluded that the offender presented as an emotionally immature young man with low intelligence and adaptive functioning. In particular:

“His executive function and communication skills are low, impacting his social functioning and ability to process information at a conceptual level. While the offender is able to comprehend the potential consequences of his actions, he does not appear to comprehend the inappropriateness of his behaviour.”

23. Under the heading, “Family History”, the author noted a somewhat dysfunctional family background. The offender believed that his mother had been diagnosed with Post Traumatic Stress Disorder, however, there were no reports of alcohol or drug abuse, criminal activity or trauma in his family history.

24. The author noted that the offender had recently received a confirmed diagnosis of Acrodysostosis, Type II (which is a rare congenital malformation syndrome which involves a shortening of joints in the hands and feet and intellectual disability in approximately 90% of affected children). There was no evidence as to who made the diagnosis, however, it was described as a genetic disorder which impacts bone growth, developmental and intellectual abilities.

25. In respect of the offence in Sequence 1 of soliciting child pornography material, the author noted that the offender told her:

“I thought asking for nudes was okay, I thought it was their choice whether they sent them.”

He went on to say:

“I don’t know why what I did wasn’t okay.”

26. He denied the photo that he sent of male genitalia was of himself, and stated that he found it on the internet and thought he could send it on. When asked why he claimed to be 14 years of age on his social media profile, he said:

“If you say you’re real age, they will not talk to you … so I just picked a number and said I was that old so I’d have someone to talk to.”

27. When asked what options he would now take if he was in the same situation, he stated:

“I’m never going to do this again.”

When asked to clarify what “this” referred to, the offender stated:

“Not to talk that way, not to make fake accounts, not send photos, not to go with anyone [to a secluded area].”

28. The offender was unable to make any comment about the potential impact on the victim.

29. On psychological testing on the “Vineland Adaptive Behaviour Scales”, the adaptive behaviour composite score revealed a mild deficit in the offender. He was scored as low on communication, daily living skills, socialisation, and had a clinically significant maladaptive behaviour index. The adaptive behaviour composite score is a global measure of adaptive functioning. His score placed him in the low range, i.e. in the lowest tenth of one per cent for his age.

30. Upon psychological testing for intellectual function, the offender’s full scale IQ resulted in a low score, ranking him in the lowest nine per cent of his age peers. His working memory index was rated as borderline, and the testing suggested that the offender had significant difficulty in judgment, learning and conceptual processing (i.e. executive function). Whilst the combined results of the testing indicated that the offender did not meet the criteria for intellectual disability in the opinion of the author, his overall assessment was not a long way outside that range.

The offender’s submissions

31. Learned Counsel for the offender submitted that the objective seriousness of the offending for each of the offences in Counts 1 and 2, offences pursuant to s 61M(2) of the Crimes Act 1900, which involved touching the first victim’s genitalia on the outside of her clothing with her hand, and the second victim’s genitalia inside her underwear. Both offences fell in the less serious part of the scale of objective seriousness. Both offences were opportunistic and of short duration. Neither involved any planning and there were no aggravating circumstances.

32. Counsel referred to the following mitigating features:

1. There was no planning or organisation.

2. The offender had no criminal history.

3. The offender was unaware of the full consequences of his actions as a result of his intellectual deficits.

4. The offender was aged 18 years of age at the time of the offending.

33. It was submitted on behalf of the offender that his prospects of rehabilitation, together with minimisation of the risk of him re-offending, were directly linked to the level of supervision that he could be given whilst in the community. It was advocated on his behalf that a Community Correction Order with appropriate conditions and adequate supervision should be imposed on the offender, who was now 19 years of age.

34. Further, on the basis of the opinions expressed by Ms Morris in Ex 1, the offender was a poor vehicle for general deterrence, however, specific deterrence had some part to play in the sentencing process.

35. It was submitted that the offender was a very vulnerable young man and for him, a term of full-time custody would have a massively greater impact and would be disproportional to the impact such a sentence would have on a person of average functioning ability. It was submitted that the offender was not far off borderline functioning and required the full-time support of his mother.

36. In respect of the two Commonwealth offences of solicit child pornography material and using a carriage service to transmit such material, both offences were at the bottom of the range of objective seriousness for such offences. It was noted that the second offence did not involve the transmission of a large number of images. It involved transmitting an image of a penis which the offender had found on the internet and had held the belief that he was therefore “okay to send it”.

37. It was advocated on behalf of the offender that given the low level of criminality involved, a Recognisance Release Order should be imposed, pursuant to s 20(1)(a) with conditions congruent with the conditions imposed by way of Community Correction Order in respect of the State offences outlined above.

The Crown submissions

38. The Crown agreed that the objective seriousness of the offences in Counts 1 and 2, pursuant to s 61M(2), fell towards the lower end of the range of objective seriousness for such offences. The Crown agreed that the offending in each case was of short duration and was opportunistic with no planning.

39. The Crown also agreed that the subjective matters outlined on behalf of the offender were significant in the sentencing process, namely, that he was a young man at the time of the offending with no prior offences, and with intellectual deficits, which meant that he was not a suitable vehicle for general deterrence in accordance with appellate authorities. However, the Crown submitted that any sentence should ensure that the offender was adequately punished and to bear in mind the protection of the community.

40. The Crown submitted that the Victim Impact Statements should be given recognition in the sentencing process, and given the nature of the offending and the low level of objective seriousness overall, the Crown submitted that it would be appropriate to sentence the offender by way of a lengthy Community Correction Order with supervision in respect of Counts 1 and 2, which would meet the purposes of sentencing, as upon conviction, the offender would be a registrable person. The Crown agreed that both Commonwealth offences were also at the lower end of the scale of objective seriousness for such offences.

Determination

41. In respect of the State offences in Counts 1 and 2, the purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”) as follows:

“(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

42. Section 61M(2) encompasses a broad range of criminal offending by way of sexual assault and committing an act of indecency on another person. The objective seriousness of the offending in Count 1, was opportunistic offending of short duration which involved pushing the victim’s hand onto her vagina on the outside of her clothing. The offender was 18 years of age and the victim 14 years of age. This offending was clearly towards the lower end of the range of objective seriousness for an offence pursuant to s 61M(2).

43. The offending in Count 2 was more objectively serious. It involved the offender placing his hand down the back of the pants of the victim who was 13 years of age, and inside her underwear, and involved skin on skin contact with her vaginal area. It was, however, also of short duration and was somewhat opportunistic offending. The objective seriousness of this offending was below the mid-range for an offence pursuant to s 61M(2) and in the middle of the low range for such an offence. It still constituted serious offending.

42. The offence pursuant to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth), being Sequence 1, solicit indecent material, was at the low end of the range for such an offence. Similarly the offence pursuant to s 474.27A, which involved the transmission of one photograph of a male penis, fell at the lower range of objective seriousness for such an offence under the Criminal Code 1995 (Cth).

43. In respect of Counts 1 and 2, I take into account the following mitigating factors pursuant to s 21A(3):

(b) The offending was not part of a planned or organised criminal activity in either case.

(e) The offender does not have a criminal record.

(f) The offender was a person of good character.

(h) The offender has good prospects of rehabilitation provided he complies with supervision.

(j) The offender was not fully aware of the consequences of his actions because of his intellectual deficits.

46. I take into account the maximum penalty of 10 years imprisonment for each of the offences in Counts 1 and 2, together with the Standard Non-Parole Period of 8 years imprisonment in respect of each offence. The maximum penalty and Standard Non-Parole Period are guideposts in the sentencing process.

47. Having regard to the intellectual deficits identified by Ms Morris in Ex 1, together with the childhood diagnosis of Attention Deficit Disorder and Oppositional Defiance Disorder, and the recent diagnosis of Acrodysostosis, Type II, the offender is not an appropriate vehicle for general deterrence, in accordance with authorities.

48. Specific deterrence has some part to play in the sentencing process here, in that the offender must understand that his behaviour was inappropriate criminal behaviour, which, if repeated, could result in a custodial sentence being imposed on him.

49. The offender is entitled to a 5% utilitarian discount on sentence in respect of the State offences in Counts 1 and 2. He is also entitled to some discount on sentence in respect of the two Commonwealth offences.

50. I have taken into account the Victim Impact Statements submitted by the victims in respect of Counts 1 and 2. Both outline the emotional and psychological impact the offender’s criminal conduct has had on them, and the way it has affected their every day activities. The courts have long recognised the traumatic effect of child sex offending on victims, and the fact that such offending may endure for years, and even over a lifetime. I have therefore taken both Victim Impact Statements into account, but as they are unsupported by medical evidence, I have not taken them into account so as to aggravate the offender’s moral culpability for his offending.

51. In sentencing for Sequences 1 and 2, I have regard to the following matters pursuant to s 16A of the Crimes Act 1900:

1. Section 16A(2)(a) – the nature and circumstances of the offences.

2. The nature and circumstances of the offences in each sequence has been set out above. Each was objectively in the low range of objective seriousness for each offence.

3. Section 16A(2)(c) – if the offence forms part of the course of conduct consisting of a series of criminal acts of the same or similar character.

4. There was some similarity in the two offences pursuant to s 474.19(1), and s 474.27 of the Crimes Act. The former concerned the soliciting of child pornography material over the internet and the second involved sending the image of a male penis via a carriage service. Both offences involved the offender having a belief that he was communicating with a female aged 13 years.

5. Section 16A(2)(f) – the degree to which a person has shown contrition for the offending.

6. The offender denied the offending and entered pleas of guilty on the first day of his trial. The plea therefore does not reflect remorse for his offending, nor did the offender express any remorse therefore to Ms Morris. The offender is therefore not entitled to any discount for remorse or contrition for his offending.

7. Section 16A(2)(h) – the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence

8. In the execution of the search warrant, the offender made numerous admissions to the investigating police, which are set out above. In the face of a strong Crown case, however, those admissions do not warrant any discount in the sentence to be imposed.

9. Section 16A(2)(j) – the deterrent effect that any sentence will have on the person

10. As set out above, specific deterrence has some part to play in sentencing here, in that the offender must understand that if he engages in similar criminal conduct in the future he will face a custodial sentence.

11. Section 16A(2)(ja) – the deterrent effect that any sentence may have on other persons

12. I accept the offender’s submission that the offender is not a vehicle for general deterrence given his intellectual deficits and the diagnoses referred to above. There is, however, a significant public interest in protecting children from sexual exploitation and abuse. Possession of child pornography is not a victimless crime, and soliciting and transmitting child pornography material fuels the exploitation and abuse of the most vulnerable members of our society.

13. Section 16A(2)(k) – a need to ensure that the person is adequately punished

14. I have taken into account the maximum penalty of 15 years imprisonment for Sequence 1, use carriage service to solicit child pornography, and the maximum penalty of 7 years in respect of Sequence 2, use carriage service to transmit indecent communication to person under 16. However, as outlined above, the maximum penalties are guideposts in the sentencing process and principles of proportionality and totality have to be applied in the sentencing process.

15. Section 16A(2)(m) – good character, antecedents, age, means and physical and mental condition of the person

16. As set out above, the offender was just 18 years of age at the time of the offending and had no prior criminal offences. He is entitled to have his youth taken into account, together his intellectual deficits as outlined above.

17. Section 16A(2)(n) – the prospects of rehabilitation

18. I accept the submission made on behalf of the offender by learned Counsel that the offender’s prospects of rehabilitation are directly related to his compliance with rehabilitation courses provided whilst he is under supervision in the community. The offender will need to address his deficits in accordance with the plan of supervision outlined in the Sentencing Assessment Report, by engaging in cognitive behavioural therapies to address his offending behaviours. He will also need to engage with the psychological services provided to him.

52. I am satisfied, given the Crown concession as to the appropriateness of a community based order here in all of the circumstances, that the offender should be sentenced in respect of Counts 1 and 2 by way of Community Correction Orders, with conditions.

53. I am further satisfied that in respect of the two Commonwealth offences in Sequences 1 and 2, the offender should be sentenced upon conviction by way of a Conditional Release to be of good behaviour, subject to the same conditions imposed on him under the Community Correction Orders referred to above. As the two Commonwealth offences were close in time and involved the same course of criminal conduct, bonds to be of good behaviour will be for the same period of time and will be served concurrently with the Community Correction Orders imposed in respect of the two offences pursuant to s 61M(2).

Orders

54. I make the following orders:

1. You are convicted of the offence in Count 1 of aggravated indecent assault pursuant to s 61M(2) of the Crimes Act 1900.

2. You are convicted of the offence in Count 2 of aggravated indecent assault pursuant to s 61M(2) of the Crimes Act 1900.

3. You are convicted of the offence of use carriage service to solicit child pornography material pursuant to s 474.19(1)(a) of the Criminal Code (Cth) 1995.

4. You are convicted of the offence of use carriage service to transmit indecent communication to person under 16 pursuant to s 474.27A of the Criminal Code (Cth) 1995.

5. In respect of each of the offences above, I sentence you as follows:

1. In respect of Count 1 you are sentenced by way of a Community Correction Order pursuant to s 8 of the CSPA for a period of 12 months from 27 November 2019 subject to the conditions outlined below.

2. In respect of Count 2 you are sentenced by way of a Community Correction Order pursuant to s 8 of the CSPA to be of good behaviour for a period of 18 months from 27 November 2019 subject to the conditions outlined below.

3. In respect of Sequence 1 you are sentenced pursuant to s 20(1)(a) of the Crimes Act (Cth) to a Conditional Release without surety upon you entering a bond to be of good behaviour for a period of 12 months from today, on the conditions outlined below.

4. In respect of Sequence 2 you are sentenced pursuant to s 20(1)(a) of the Crimes Act (Cth) to a Conditional Release without surety upon you entering a bond to be of good behaviour for a period of 8 months from today on the same conditions as outlined below.

6. The conditions of the Community Correction Orders for Counts 1 and 2 and bonds to be of good behaviour pursuant to s 20(1)(a) are as follows:

1. The standard conditions of the order apply:

(a) You must not commit any offence;

(b) You must appear before the court if called on to do so at any time during the term of the order.

2. The following additional conditions apply:

(a) To report to Community Corrections at Goulburn within 7 days.

(b) To obey all reasonable directions of your supervisor.

(c) You are to be subject to a rehabilitation or treatment condition requiring you to comply with any directions of Community Corrections to comply with their supervision plan as set out in [21] above, namely,

• To engage in cognitive behavioural therapies to address your offending behaviours; and

• To engage in psychological services including CSNSW psychologist.

7. If you fail to comply with the conditions of the order, further action may be taken against you. This may require you to return to court to be re‑sentenced.

8. I have certified that I have taken into account the matters on the Form 1.

55. Finally, you are now directed to attend the Court Registry where a copy of this order will be given and explained to you.

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Decision last updated: 02 December 2019