R v Paterson

[2020] NSWDC 416

District Court

New South Wales

Medium Neutral Citation:

R v Paterson [2020] NSWDC 416

Hearing dates:

23 July 2020

Date of orders:

13 August 2020

Decision date:

13 August 2020

Jurisdiction:

Criminal

Before:

Lerve DCJ

Decision:

Aggregate sentence of 2 years 10 months, with non parole period of 1 year 3 months

Catchwords:

CRIME – SENTENCING – fail to comply with reporting obligations - groom child for unlawful sexual activity – money sent to victim’s accounts – sexually explicit texts – intellectual impairment of offender – reduced moral culpability – general deterrence

Legislation Cited:

Child Protection (Offender’s Registration) Act, 2000

Crimes Act, 1900

Crimes (Sentencing Procedure) Act, 1999

Cases Cited:

The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999, No. 1 of 2002 (2002) 56 NSWLR 146

Aslan v R [2014] NSWCCA 114

R v Boney [2008] NSWCCA 313

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; 205 A Crim R 1; [2010] NSWCCA 194

R v Despotovski [2020] NSWDC 110

Muldrock v The Queen [2011] HCA 39

R v MW [2019] NSWDC 307

Ngati v R [2014] NSWCCA 125

Taitoko v R [2020] NSWCCA 43

Tepania v R [2018] NSWCCA 247

Category:

Sentence

Parties:

Regina
Troy Owen Paterson (Offender)

Representation:

Counsel:
Ms C Mendes for the Offender
Solicitors:
Ms V Morgan for the Crown

File Number(s):

2019/232686

Publication restriction:

No publication of the name of the complainant or anything that would tend to identify them.

REMARKS ON SENTENCE

1. The offender appeared before the Local Court at Wagga Wagga on 22 April 2020 and pleaded guilty to three charges, namely one count of Fail to comply With Reporting Obligations contrary to s 17(1) of the Child Protection (Offender’s Registration) Act, 2000 and two counts of Groom Child for Unlawful Sexual Activity contrary to s 66EB(3) of the Crimes Act, 1900.

2. The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 23 July 2020 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.

3. The maximum penalty for the offence of Fail to Comply with Reporting Obligations is 5 years imprisonment and/or a fine of 500 penalty units. There is no standard non-parole period specified in respect of that offence. The maximum penalty for what are shortly or commonly known as the “Grooming” offences is 10 years imprisonment. Parliament has specified a standard non-parole period of 4 years in respect of that offence. I acknowledge that I am engaged in a one-step instinctive process in which two of the principle guideposts are the maximum penalty and the standard non-parole period.

4. In addition the offender asks that when sentencing him in respect of the first of the Grooming charges I take into account two charges on a Form 1 document, namely two further charges of Fail to Comply with Reporting Obligations contrary to s 17(1) of the Child Protection (Offenders Registration) Act. In dealing with those matters I will need to properly apply the principles enunciated in The Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999, No. 1 of 2002 – otherwise known as the Guideline Judgment on Form 1 matters reported (2002) 56 NSWLR 146.

Facts

5. The facts are before the Court by way of agreed facts which are within the Crown tender bundle exhibit A on sentence.

6. On 28 April 2014 the offender was convicted and sentenced by the Local Court at Wagga Wagga in respect of an offence of Use Carriage Service to send Indecent Material to a Person under the age of 16 years. He was released from custody on 23 October 2014 and as required by the Child Protection (Offenders Registration) Act, attended the Wagga Wagga Police Station on 24 October 2014 and completed the Child Protection Register registration process. He was provided with a Form 3 document notifying him of his reporting obligations. The offender is a registrable person by reason of the provisions of the Child Protection (Offenders Registration) Act for 8 years excluding any periods in custody.

7. The facts then recite that the offender is 51 years of age and suffers from a mild-moderate intellectual disability. There is a significant volume of material tendered on behalf of the offender in this regard. I will deal with that material later within these reasons.

8. The facts then go on to deal in some detail including details of text message exchanges between the two victims and the offender.

9. On 17 July 2019 the first victim (OA) accepted a Friend Request on Facebook from someone using the profile name Amy Rannica, which in fact was a name being used by the offender. The photograph depicted a female from the chest up dressed in a soccer jersey. The details included a telephone number 0447 742056. When OA added Amy Rannica as a friend she believed that she was befriending a teenage female.

10. OA commenced communicating with the offender via Facebook Messenger (text and video calls). OA provided the offender with her phone number and they later communicated via SMS messaging and phone calls on 17 July 2019. On this occasion OA introduced herself and the offender introduced himself as Ricky from Bathurst. The offender then stated that his name was “Sam” and then later he used another name. OA told the offender that she was 15 years old and the offender stated that he was 14 years old. It follows that initially the offender presented as a teenage female but that then changed and he presented himself as a teenage male.

11. On about 17 July 2019 during a call OA told the offender that she was in Sydney and going to Brisbane. The offender offered to buy OA’s train ticket. She agreed and provided the offender with her bank details. The offender deposited $400 into the Commonwealth Bank Account the details of which were provided by OA.

12. However, OA did not go to Brisbane. On 18 July 2019 she met her school friend ME, the second victim and spent the money that had been deposited into her account the day before.

13. On 18 July 2019 while OA and ME were out together they discussed the offender who OA referred to as the “guy that pays for everything”. ME asked OA, “Can he get me a new phone?” The victims both spoke to the offender and asked for money so that they could each get a mobile phone. ME told the offender that her phone had been stolen and she needed a new one. The offender agreed to give each of the victims the money for a mobile phone. ME asked the offender, “There has to be a catch” to which the offender replied, “no catch”, but the next day inquired as to what he would be getting in return. Thereafter a discussion was held between the victims and the offender, during which the offender raised having a threesome with the victims and asked who will go on top and who will go on the bottom. The victims stated that they just went along with what the offender was saying.

14. On 18 July 2019 the offender transferred $800 to OA’s bank account and the following day the money was withdrawn and two mobile phones were purchased.

15. ME told investigating police that while she spoke to the offender on a number of occasions she could not recall much of what he said because she could not understand him when he spoke. In her record of interview with police ME said in respect of the offender, “he doesn’t sound like he knows English” and “he’s got some accent like some outback accent or some crap”. ME noted that the offender sounded older than fourteen. ME did not specifically recall telling the offender her age. ME also stated that the offender asked both victims “when are you coming up, come tonight”, which was an invitation to come to Wagga Wagga where he was living but no actual plans were made.

16. That was the extent of the offending in respect of WE, but further offending occurred in respect of the victim OA, which relates to the first of the two grooming charges.

17. On 21 July 2019 commencing at 22:57 hrs and concluding at 23:51 hrs there was an exchange of text messages between OA and the offender, namely (set out as spelt in the facts within exhibit A):

Offender:   U still Owen me for the $1,000 and the $800 and the $400 and & 250 start thinking of something

Offender:   U have 2.400 in 5day that lot of money

OA:      Yeah I know

Offender:   Have u think of som thing

Offender:   U at home

Offender:   Were u at

OA;      I’ll give you whatever you want

Offender:   Like wot u name some thing

Offender:   U at home

OA:      a hand job

Offender:   For how long

OA:      3 hrs

Offender:   U wood last for that long

OA:      Yes I would.

18. The last of those entries was at 23:51 hrs. There was a further exchange of text messages between the offender and OA on 22 July 2019 commencing at 00:13 hrs, meaning that it was about 20 minutes after the first exchange extracted above. That exchange was as follows:

OA:   So am I getting $700 today?

Offender:   U still Owen me for the $1000 and $800 and 440 and $250

OA:   Yeah I know but you said if I talk to you and all that your will give me $700

Offender:   The momey went in and the fuck it up Hi waiting for them to ring me and see wot going on but the money just heng on ok hi let you know ok srooy

OA:   It alright

Offender:   U will get the $700 ok

OA:   Today?

…

Offender:   Good sex

Offender:   Joking

OA:   What

OA:   Ahah no

Offender:   Hand jobs

OA:   yeah

Offender:   He’d jobs

OA:   No

Offender:   69

OA:   No

Offender:   Joking

Offender:   Sleep in same bed

…[then going to 03:37 hrs]

OA:   Can I have $700 pleaseeeee

Offender:   If u answer this question

OA:   Okay

Offender:   Will u sleep with no bar and sit on me tell 12am cloths on and stay in bed tell 8.30am same ever night no sex

OA:   Yes I would.

19. OA told the offender that she wanted the money to buy an Ipad and some “cloths”. On 23 July the offender deposited $425 into OA’s account.

20. Commencing at 09:15 there was the following SMS exchange between OA and the offender:

OA:   My dad just had a car crash I need money I need to get my father he’s in another country

Offender:   Wot was that

Offender:   Wen u bee dowen here to see me

Offender:   Bet u don’t show up

OA:   I need money really badly

OA:   My dad might die

Offender:   If u get the money hi get iack shit out of it

OA:   I’ll come see you

OA:   I promise I sear on my mums life

Offender:   U get in to shit with your worker she wot let y come dowen wen that bee

OA:   Tomorrow

21. The facts recite that OA was being dishonest about her father having had a car accident. The offender messaged OA on several further occasions asking when she would be visiting the offender. No actual plan was made for OA to visit the offender.

22. On 24 July 2019 the offender sent OA an SMS message asking if she wanted more money and if so how much. OA responded that she wanted $600 to which the offender replied, “Cant do $600 how but $200 wot in it for me name 5 thing”. OA responded “$500” after which the following exchange occurred commencing at 03:47:

Offender:   Hi can do $500 wot in it for me got bee good answer

OA:   Sex 69 suck your juicy cock

Offender:   And u go do it

OA:   Let you play with me and veh

Offender:   Pay with wot u did say

OA:   My body

Offender:   Like wot

OA:   Totes

OA:   Tits

OA:   Pusssyyy

OA:   And from my head to toe

Offender:   Have made one pay with your tits and pyssyy and u had a 69have us suck and one bee for

…

23. On 25 July 2019 the offender deposited $350 into OA’s Commonwealth Bank account. On one occasion OA sent the offender what the facts describe as a “bra pic”, explaining that she lifted up her jumper and was wearing only a bra underneath and flashed her bra at the offender during a Facetime video call.

24. On 25 July 2019 the victims attended Campsie Police station and reported the matter and they were both interviewed by police. OA’s mobile phone was forensically examined. OA informed the police of the offender’s phone number and told them that “he does not know how to spell”. OA had saved the offender’s number under the name ‘Horney Cunt”. Between 20 July and 25 July 2019 there were 1092 SMS messages exchanged between the offender and OA with what the facts described as the majority of them originating from the offender.

25. During the course of oral submissions at the sentence hearing the Crown made submissions as to how the matter came to be reported to the police. It was put that the offender accidentally showed himself during a call and the victims immediately realised that the offender was much older than they had thought. This is something not contained in the agreed facts. This is yet another example of something of which this court is becoming increasingly weary, of one party or the other and sometimes both seeking to expand upon or nuance what are said to be agreed facts. In any event I note the facts recite that ME noted that the offender sounded older than 14. Both victims spoke to the offender.

26. On this issue of the agreed facts, in Taitoko v R [2020] NSWCCA 43 Leeming JA in dealing with a different issue relating to agreed facts (Hoeben CJ at CL agreeing with brief additional comments, Lonergan J agreeing) said at [38]:

“The point of signing the Agreed Facts was for that agreement to bind the applicant and to form the foundation of the sentencing discretion. It is ordinarily quite wrong for submissions to be made contrary to facts to which an offender has agreed…”

27. The agreed facts are supposed to bind both parties not just the offender. What was put in the Crown’s submission does not materially affect any finding or assessment of seriousness. However, for more abundant caution I indicate I ignore the submission of the Crown as to how the matter came to the attention of the police.

28. The charges of Fail to Comply with Reporting Obligations relate to the offender failing to notifying the police that he had a social media account which was in contravention of his obligations under the Child Protection (Offender’s Registration) Act. The matters on the form 1 relate to the offender having contact with OA and ME in contravention of that legislation as he had an obligation to disclose all contact with people under the age of 18 years.

29. The offender was arrested at this home in Wagga Wagga on 26 July 2019. The offender co-operated fully with police and handed over his mobile phone and permitted police to search his home. The offender was not interviewed. The offender has been in custody since his arrest.

Assessment

30. The facts indicate that the offender has a mild/moderate intellectual disability. To use the expression of the plurality in Muldrock v The Queen [2011] HCA 39 at [1] the offender is “mentally retarded”. A report from Ms Jenny Howell, Forensic Psychologist part of exhibit 1 on sentence sets out at p 5:

“…Mr Paterson understands that he was diagnosed as a child with a cognitive impairment and stated he has difficulty with reading and writing. I understand from documents provided Mr Paterson has had a number of cognitive assessments. In 1974 he was assessed as having Mild to Moderate cognitive delays; in 1979 he was assessed as having Borderline delays and in April 1985 a report prepared by MJ MacKenzie, District Guidance Officer found Mr Paterson’s IQ of 64 indicated a Mild cognitive delay”.

31. Cognitive delay does not improve over time. As I observed in R v MW [2019] NSWDC 307 at [14]:

“At p 2 of the report the following appears:

‘While Mr W scores on the various sub-tests and his overall intelligence quotient are not included in the Pre-sentence Consultation Report, it is clear that because he has been assessed as functioning within the range of intellectual disability his IQ, at best, is only 70.

…

As such Mr W meets the criteria for what, in Australia, is technically called mild intellectual disability. The word mild should not be misinterpreted in that the condition involves substantial deficits in reasoning, problem solving, planning, abstract thinking, judgements, academic learning and experiential learning.’”

32. In the decision of Tepania v R [2018] NSWCCA 247 Johnson J (Payne JA, Simpson AJA agreeing) said at [112]:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

33. His Honour a little later on the issue of moral culpability said at [119]:

“Taking into account an offender’s moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 377-378 [52] (McHugh J).”

34. Going to the first count of Grooming, i.e. the offence involving OA, the conduct of the offender continued for eight days in circumstances where the offender initiated contact using social media. He was persistent and offered and paid what would have been quite substantial sums of money to girls in their mid-teenage years. There were numerous text messages of a sexually explicit nature. However there were no particular plans put in place for the offender to meet the victim OA.

35. Ms Mendes in her written submissions (MFI 1 on sentence) addresses the issue of objective seriousness. There is some real substance to the submission that “the offender cannot spell, has poor grammar and is the intellectual inferior of the victim”. Further it is put that the offending occurred over a short, eight day, period. The offender did create the false identity but did use his own registered mobile phone. Detection was always inevitable. The same point can be made in respect of the transfer of the various sums of money noting that the offender transferred the money from his own personal account.

36. It is put on behalf of the offender that the nature of the sexual material communicated was not graphically described and was not pictorial apart from the time that OA “flashed” her bra at the conclusion of the video call.

37. As counsel for the offender correctly submits, there was a significant difference in the chronological age of the victims and the offender. ME, however, has no recollection of actually ever disclosing her age.

38. Noting these matters and taking into account the effect of the decision in Tepania the matter relating to OA is moderately below the mid-range of objective seriousness.

39. The offending relating to the victim ME is considerably less serious and to my mind is very much towards the bottom of the range of seriousness. ME spoke to the offender. There was an invitation for the victims to travel to Wagga Wagga but again no specific plan in respect of ME. I note the facts recite that ME did not specifically recall telling the offender her age. There was very little contact and it went over a couple of days.

40. The conduct relied upon for the Breach of Reporting Obligations namely the operation of a social media account is an unremarkable example of that offence. The matter is below mid-range.

41. For more abundant caution, lest it not be clear from what I have already said, the moral culpability of the offender is reduced because of his intellectual impairment.

34. That being said it needs to be immediately observed that finding is in the context of matters of this type that come before the court and further that any offence of grooming children is very serious indeed.

General Deterrence

43. The issue of the intellectual disability impacts on the significance that attaches to the issue of general deterrence. In the course of oral submissions Ms Mendes reminded the court of what was said by the plurality in Muldrock v The Queen [2011] HCA 39 at [58], namely:

“…As explained, punishment, in the sense of retribution, and denunciation did not require significant emphasis in light of the appellant's limited moral culpability for his offence. And there was no requirement for general deterrence”. 

44. Ordinarily – that is to say in respect of offenders without the intellectual impairment of this offender - there is a particular need for sentences in respect of offending such as that engaged in by this offender to have factored into them a significant aspect of general deterrence. The same principles apply and for the same reasons and public policy considerations for general deterrence applying in matters involving child sexual assault and for e.g. the production or possession of child pornography. The public policy is clear: children must be protected from any sort of sexual exploitation. As the Crown correctly put at the sentence hearing this also includes children being protected from themselves.

45. On the issue of general deterrence, for example Walton J in giving the leading judgment (Hoeben CJ at CL, Hulme J agreeing) in Chamseddine v R [2017] NSWCCA 176 said at [50]:

“It is well recognised that sexual offences against children are objectively serious and cause significant harm to the victims. In R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court stated at [110]:

‘This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can do". The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].’"

Criminal History

46. The offender was born on 21 February 1968 and accordingly is 52 years of age. He was convicted in 1987 of a Break Enter and Steal charge in respect of which he was released on a recognizance to be of good behaviour. He has since been convicted of Malicious Damage in respect of which he was sentenced to community service. In 2004 he was convicted of Stalk/intimidate in respect of which he was released on a s 9 bond for 3 years. In 1998 he was convicted of Receiving Stolen Property. In 2009 he was convicted of Obtain Money by Deception. A fine of $150 was imposed indicating the matter was of little moment.

47. In April 2013 he was released on a recognizance pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) in respect of a charge of use Carriage Service to Menace/Harass/Offend.

48. Then in April 2014 he was convicted by the Local Court of four counts of Use Carriage Service to Menace/Harass/offend and one count of Use Carriage Service to Send Indecent Material to a Person Under 16 years of age. The criminal history indicates that the sentencing court took into account pre-sentence custody and imposed an order pursuant to s 20(1)(B) of the Crimes Act 1914, essentially a suspended sentence. Those orders were confirmed on appeal to the District Court.

49. Further, in 2017 the offender was convicted and sentenced to community service of Damage to Property, Stalk/Intimidate and Assault Occasioning Actual Bodily Harm.

50. In May 2018 the offender was convicted of and sentenced to concurrent terms of six months imprisonment in respect of two counts of Fail to Comply with Reporting Obligations. In July 2019 he was convicted of a charge of Fail to Comply with Reporting Obligations and sentenced to a term of 7 months imprisonment to be served by way of Intensive Correction Order.

51. The offending in respect of which the offender appears for sentence occurred within a few weeks of the ICO being imposed and accordingly the offender was subject to conditional liberty at the time of offending, enlivening the factor of statutory aggravation contained within s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, 1999.

52. The offender has a record that does not entitle him to any particular leniency. However, as counsel for the offender notes (para 14, MFI 1 on sentence) this is the first occasion that the offender has appeared for sentence in the District Court.

Subjective Case for offender

53. In Muldrock v The Queen the court said at [54]:

“The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.”

54. Further on the issue of intellectual impairment McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; 205 A Crim R 1; [2010] NSWCCA 194 said at [177]-[178]:

“Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner:

● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].

[178] I should stress that the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].”

55. I have carefully considered the judgment of Simpson J (as her Honour then was) (Adams & McCallum JJ agreeing) in Aslan v R [2014] NSWCCA 114 at [33]-[36]. In the decision of Ngati v R [2014] NSWCCA 125 Beech-Jones J said at [45]-[46]:

“In this case it is not contended that the applicant was suffering from a "mental illness". However, it can be accepted that the intelligence testing revealed a deficit in the applicant's intellectual functioning that could answer the description "intellectual handicap". In Muldrock at [54] the High Court stated that questions as to a causal relation are less likely to arise in sentencing such offenders because they "lack ... capacity to reason, as an ordinary person might, as to the wrongfulness of [their] conduct" and this will, "in most cases", substantially lessen their moral culpability for the offence. This is illustrated by the facts in Muldrock. In Muldrock there was "unchallenged evidence of a causal relationship between the appellant's retardation" and his commission of sexual offences towards children (Muldrock at [55]). In particular, a psychiatrist had assessed the appellant in that case as being aware of the wrongfulness of his own conduct but had observed that it was "only a superficial awareness" (Muldrock at [52]), and a psychologist had concluded that he had little control over his "acting out behaviour" (Muldrock at [41]).”

[46] Nevertheless the approach stated in Muldrock is only expressed to be apposite to "most cases" of an offender with impaired intellectual functioning. It does not necessarily apply to all. The task still remains to consider the evidence of the intellectual retardation and the facts of the particular offence. In this case, his Honour noted the degree of planning that was involved by the applicant in the commission of the offences. His Honour concluded that the applicant was "fully aware" that his conduct was "seriously wrong". Considered in this context, the finding that he was "fully aware" was clearly a reference to the applicant having a sufficiently deep understanding of its wrongful nature and consequences.”

56. I have already referred to the report of Ms Howell. Some personal background is given and that detail is amplified in the affidavit from the offender’s mother, Ms Esther Paterson, that is also contained within exhibit 1 (defence tender bundle on sentence) to which I refer further below. Some details were corrected in the oral evidence of Ms Paterson at the sentence hearing. The offender described himself to Ms Howell as a “blue baby” and required medical support at birth.

57. At paragraph 10 of her affidavit, the offender’s mother sets out that the issue was a blood disorder. Ms Mendes’ submissions (MFI 1 on sentence) accurately summarises the material within exhibit 1 in that, “The origins of his cognitive impairment were identified at birth and result from the impact on his cerebral development of Rh incompatibility; the offender’s mother having had Rh negative blood and the offender having Rh positive blood”. On the material before me there can be simply no doubt that the offender has that intellectual deficit and has had that deficit since birth.

58. At page 8 of the report in answer to specific issues and questions posed by the offender’s legal representatives Ms Howell opines that the offender’s cognitive impairment is chronic and that the offender continues to meet the diagnostic criteria for a cognitive impairment. Further, the offender meets the diagnostic criteria for Major Depressive Disorder and Generalised Anxiety Disorder which are both mental health conditions.

59. Further Ms Howell opines (p 8) that, “Review of the statement of agreed facts it is clear that Mr Paterson’s intellectual disability contributed to his offending behaviour”. At p 9 of the report she concludes, “It is my opinion that Mr Paterson’s cognitive and intellectual disability contributed to his offending behaviour”.

60. Ms Howell also says at p 8:

“…In conversation with Mr Paterson he was unable to explain how the conversation proceeded and it is his view that the young people he was speaking to were his ‘friends’. He stated they asked for money from him to purchase mobile phones and when asked why he agreed to given them money he replied because they were his friends…When asked whether he thought he would have sex with them he replied ‘yes’ and when asked what made him believe they may have sex with him Mr Paterson said he didn’t know.”

61. I am satisfied that the material contained in Ms Howell’s report grounds a finding that there is a causal connection between the offender’s level of intellectual functioning and the offending.

62. Returning to other aspects of Ms Howell’s report the offender has experienced suicidal ideation. Further, (at p 5 of the report) results found clinical levels of depression and anxiety and elevated levels of stress consistent with his current circumstances – i.e. being in custody.

63. Ms Howell goes on to note (p 6) that the offender gave a history of being arrested at around 20 or 21 years of age for “hanging around kids”. The offender could not at the time understand that what he was doing was a problem. The offender has an understanding of his reporting obligations and understands that because of the convictions that will flow of the present matters that the time he will be on the Register will be extended.

64. On the issue of the risk of re-offending Ms Howell did not use the Static-99R test. She goes on to say (p 7):

“Assessment of Mr Paterson with the ARMIDILLO-S found his dynamic risk factors to be in the moderate risk category to reoffend with a number of protective factors minimising his risk of reoffending”.

65. Ms Howell then refers to the fact he has a stable relationship with biological family, a past intimate relationship with an aged peer, no history of substance abuse, compliance with medication and no evidence of inappropriate sexual behaviour. Given the criminal history and the offending it occurs to me that there has been evidence of inappropriate sexual behaviour.

66. The last paragraph of Ms Howell’s report (p 10) sets out, “It is my view that Mr Paterson has a moderate to high risk of reoffending without appropriate treatment intervention with good prospects of rehabilitation if engaged in a suitable treatment programme”.

67. Given the criminal history and the opinion of Ms Howell I am not prepared to making a finding on balance that the offender is unlikely to re-offend. The issue of rehabilitation appears to depend largely if not almost entirely on the offender appropriately engaging with an appropriate programme. There are certainly prospects for rehabilitation but as I have just indicated the results are dependent upon the manner and extent to which the offender engages. I am not prepared at this point to make a finding on balance that there are good prospects of rehabilitation.

68. It is the opinion of Ms Howell that the offender requires ongoing help and support with all aspects of his daily life. Further, “he requires specific sexual offender treatment and education to support him in understanding both appropriate and inappropriate sexual behaviour”. It is Ms Howell’s view that the offender would benefit from attending a treatment programme or working with a suitably qualified psychologist noting that his current treatment and/or management does not adequately address the offenders intellectual disability, interest in sexual relationships and poor understanding of the social and legal rules around sexual behaviour.

69. At tab 2 of exhibit 1 on sentence is a letter from “3 Bridges” which is an organisation that has been and will continue to assist the offender. When the offender is released a support co-ordinator in the local area will be arranged.

70. Part of the subjective material relied upon by the offender is a comprehensive affidavit affirmed by Ms Esther Paterson, the offender’s mother on 17 July 2020. Ms Paterson supplemented this with some oral evidence at the sentence hearing. Ms Paterson has read the agreed facts and is aware of the allegations against her son. At paragraph 6 she sets out that the offender has never been able to make friends with people of his own age. She goes on to say that over the offender’s lifetime adults have taken advantage of the offender and ridiculed him and this includes members of his own family.

71. The money the offender sent to the victims in this matter came from a compensation for personal injuries received by the offender in a motor cycle accident some years ago. Despite his mother attempting to limit his access to funds the offender was able to contact the bank and have funds transferred to his account. According to the offender’s mother (paragraph 7 of her affidavit) the offender has significant difficulties managing money or understanding the value of money. She confirmed at the sentence hearing that she has made arrangements for the Public Trustee and Guardian to assume control of the offender’s pension on release. She has also made necessary arrangements with the bank to ensure that the offender cannot by himself access his funds.

72. Ms Paterson then goes on to give a history of the offender’s life, commencing with birth. The issue of the Rh incompatibility is explained in some detail. The offender’s speech was significantly delayed. The offender had a biological sister, Kellie who died when she was five. After Kellie died the offender’s parents had the offender seen by a significant number of health professionals. He commenced school at St Joseph’s Primary School in Cowra and was there for about three years but moved to the local state school because St Joseph’s could not cater for the offender’s needs.

73. In about 1975 the offender’s father obtained employment in Wagga Wagga and the family moved there. The offender attended the Kurrajong Special School until he was 16. When he left school he went to work on a farm that was set up as a sheltered work place for people with disabilities. That was not successful as the offender kept “running away” from the farm. The offender also worked at a wool combing plant where his father worked but he struggled there, as he did when working for a car detailer. It took the offender about 20 years to obtain his unrestricted driver’s licence.

74. Ms Paterson is aware that her son has had two relationships, both of which were with women of his approximate age who had disabilities. He was involved in a serious motor vehicle accident not long after the first of those relationships came to an end. It was this accident that led to a compensation payment which provided the funds for the sums on money that were sent to the victims.

75. Further, Ms Paterson explained in the affidavit and amplified in oral evidence at the sentence hearing the difficulties the offender has had with employment.

76. The offender’s father died in 2011 and according to Ms Paterson this had a significant and adverse effect on the offender. The offender moved to Cowra where Ms Paterson organised a flat and paid for the rent. However as Ms Paterson put at paragraph 30 of her affidavit, “It didn’t work out”. The offender was being used by relatives who lived in Cowra.

65. The offender’s parents (while his father was still alive) purchased a unit behind the family home with the object one day of the offender living there independently. The offender went to live with his mother after returning to Wagga Wagga from Cowra. Some years ago the family home was sold and a smaller home was purchased. The offender’s mother has relatively recently purchased a small two bedroom home for the offender. This place was close to his mother’s and she could keep an eye on him.

66. The offender went to live with his mother on his release from prison in May 2018. His mother spent some time attempting to have him be independent. The offender insisted on being independent and he had been living by himself for about three weeks before being arrested in respect of the offending for which he now appears for sentence.

67. Ms Paterson at paragraphs 38 and 39 of her affidavit sets out that the offender was violently assaulted by other inmates at the Junee Correctional Centre on 8 August 2019 and has since been moved to the Additional Support Unit at Long Bay Correctional Centre.

68. Ms Paterson goes on to say that she has only seen her son once he has been in custody and that was when he was at Junee. A planned visit to Sydney to visit the offender had to be abandoned because of the COVID-19 pandemic. I accept because of the pandemic conditions in custody are more onerous for any prisoner. In this regard I note and indeed with unfeigned respect adopt what was said by Haesler SC DCJ in his remarks on sentence in R v Despotovski [2020] NSWDC 110 at [35]-[39].

69. It is Ms Paterson’s wish that the offender upon his release return to Wagga Wagga and at least in the short term live with her. This was also amplified in evidence at the sentence hearing. She has been in touch with the 3 Bridges organisation which will assist the offender on his release.

70. Towards the end of her evidence Ms Paterson repeated her concerns about the offender’s lack of understanding over money. She said that he cannot really differentiate between smaller and large sums of money.

71. There was no cross-examination of Ms Paterson. She presented as slightly anxious which is to be expected but clearly she is deeply concerned about the offender and wants to do whatever she can for him. There is simply no reason to doubt a syllable of the evidence she gave. It speaks very well indeed of her that at her age (74) that she is still prepared to assist the offender in very substantial ways. I do not resile from my earlier findings on the issue of prospects of rehabilitation but there can be no doubt that the chances of rehabilitation of the offender are substantially increased with the assistance of his mother.

72. The remainder of the documents within exhibit 1 are historical in nature and some are the source documents to which Ms Howell had access for the preparation of her report. I note that in the report from the Queenscliff Diagnostic Unit dated 10 May 1979 the offender’s intellectual functioning was diagnosed (p 4) to have been assessed in the mild to moderate handicap range.

Submissions

85. Ms Mendes made available prior to the date of the sentence hearing some written submissions which became MFI 1 on sentence. The issue of the intellectual impairment of the offender is appropriately emphasised. Submissions are also made on the issue of objective seriousness, which is an issue I have already dealt with. It is conceded that the offender’s criminal history “disentitles him to the leniency that is afforded first offenders or offenders with a limited history”. The breach of conditional liberty is admitted. The submission is then made (para 15 MFI 1 on sentence) that in light of the offender’s significant cognitive impairment and his limited capacity to learn that the impact of this aggravating feature should be moderated. I agree with that submission.

86. It is further submitted (para 16 MFI 1 on sentence) that the offender’s rehabilitation should be a significant factor in the sentence to be imposed. The support the offender has from his mother is appropriately emphasised. It is also put on behalf of the offender that the risk of re-offending is “best managed by his engagement in targeted sex offending treatment that is appropriate to [the offender’s] low level of intelligence”.

87. Clearly, there should be a generous finding of special circumstances. The justification for such a finding particularly relates the need for ongoing intensive and extensive supervision and in particular the participation by the offender in a targeted sex offender treatment programme. In this regard I note what was said by the plurality in Muldrock v The Queen at [58], namely:

“The desirability of the appellant undergoing suitable rehabilitative treatment was plainly capable of being a special circumstance justifying a departure from the statutory proportion between the non-parole period and the term of the sentence…”

88. The issue of the intellectual impairment per se does not go to a finding of special circumstances as that would involve a substantial degree of double counting. I did not understand the Crown to oppose a finding of special circumstances. The very generous finding of special circumstances relates to the need for ongoing supervision. I accept the finding of special circumstances is very generous but I made that finding being aware of the comments of Hulme J in R v Boney [2008] NSWCCA 313 at [48], namely:

“Altering the ratio between the non-parole and balance of term periods of a sentence from that of 3:1 embodied in s44 of the Crimes (Sentencing Procedure) Act as much as to result in a ratio of 50:50 is sufficiently unusual as to inspire examination. The only reason advanced by her Honour for finding special circumstances, and by inference for apportioning the full term of the sentence as she did, was the opinion of a psychologist that the Respondent required extensive post release supervision and assistance.”

89. Ms Mendes submits both in MFI 1 and oral submissions that wholly concurrent sentences are appropriate given the very low objective seriousness of the offence involving ME. With respect to very able and experienced counsel I disagree. There should be some level of minor partial accumulation to recognise the different victims. Likewise there should be some minor partial accumulation in respect of the charge of Fail to Comply with Reporting Obligations to note the difference in the offending. Given the nature of the breach relied upon - i.e. the fact of contacting the victims which is part of the offending of the Grooming offences - the Form 1 matters would have no meaningful impact on the ultimate sentence to be imposed in this matter.

90. The Intensive Correction Order to which the offender was subject at the time of the offending was revoked and the offender was directed to serve the balance of the ICO of 6 months and 6 days to commence on 6 August 2019. Ms Mendes argues for only a “modest” degree of partial accumulation. The offender was arrested and taken into custody in respect of this offending on 26 July 2019. On my calculations the offender was in custody solely referable to this matter from 26 July 2019 to 5 August 2019 (1 week 2 days) and then from 11 February 2020 until today (13 August 2020) - 6 months and 2 days - which makes a total of 6 months 1 week and 4 days. To comply with the principle of totality I will commence the sentence in this matter from 26 October 2019. The issue of partial accumulation is also relevant to the finding of special circumstances.

91. In oral submissions Ms Mendes put and I accept that her client had told her a number of times that he has learnt his lesson and he does not want to be back in custody. While I accept that he is sincere in saying this I do not resile from my earlier finding that I cannot be satisfied on balance that he is unlikely to re-offend, for the reasons given previously. The level of intellectual functioning of the offender was appropriately emphasised. Reference was made to the decision in Muldrock v The Queen noting the offender in that matter had an IQ of 62, i.e. quite similar to this offender.

92. Ms Mendes went on to recognise that a significant concern in protection of the community noting the opinion of Ms Howell on the issue of recidivism. However it was then submitted that the primary focus should be on rehabilitation, noting the impact of the level of intellectual functioning on the aspect of general deterrence.

93. Oral submissions were then made as to the objective seriousness of the offending. It was put the fact of the 1092 messages to the victim OA from the offender needs to be put in the context or to use the expression of counsel, “seen through the lens of someone with a significant impairment”. It was put and I largely accept that the use of the false identity was a “childish attempt to disguise himself”. The disguise was never going to work, noting that he used the phone number registered to himself and his own bank accounts. The need for general deterrence with offenders of ordinary intelligence was accepted.

94. It was also submitted, and I accept, that while the age differential between the offender and the victims was substantial the same could not be said for the power imbalance.

95. A number of matters already dealt with in the written submissions were addressed in oral submissions. The need for an extended period of supervision on parole was appropriately emphasised. It was acknowledged that the offender was indeed very fortunate to have the continuing support of his mother, which support it was correctly argued will assist in the offender’s rehabilitation.

96. It was put that the court would impose a sentence that would have the effect of the offender being released in the near future.

97. The Crown put in oral submissions that there was not a great deal of difference between the parties in the matter. The 25% discount for the utilitarian value of the plea was acknowledged.

98. One point of difference between the Crown and the offender was where the matters fell on the scale of seriousness. The Crown emphasised the number of messages and the period of time over which the conduct occurred in respect of OA. The Crown put that even though there was the intellectual impairment there was a degree of complexity to the offending noting the false name and the offender initially presenting himself as a teenage girl and then a teenage boy. Further it was put by the Crown that despite the intellectual difficulties there was a gradual turning of the conduct to more sexualised terms. The offending, it was put, was not without a level of sophistication. While these are valid submissions the disguise was always going to be discovered.

99. The Crown however conceded that the conduct of the victims was “very unusual” in that they continued the communication to get money. However, as the Crown went on to submit, it must be borne in mind that the victims were children and further that the law is there to protect children, sometimes from themselves. Further, as the Crown correctly submitted, the victims until the end were of the opinion that they were communicating with someone of their own approximate age.

100. Further the Crown appropriately reminded the court of the fact that the offender was subject to conditional liberty and a Child Protection Order at the time of the offending. I have dealt with the issue of the offender being subject to conditional liberty at the time of the offending.

101. The Crown conceded that the principles enunciated in DPP (Cth) v De La Rosa apply but went on to submit that if the offender were to re-offend then the issue of public safety would have to play a much more significant role in the sentencing exercise. I understood the Crown to agree that there should be a strong focus on rehabilitation in the matter.

102. I have no note or memory of the Crown making any specific submission on the issue of special circumstances. However, I took the appropriate concession on the issue of rehabilitation to be at least acquiescence in a finding of special circumstances.

General Remarks

103. I must give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act, 1999. Section 3A sets out the purposes of punishment, namely:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender, and

7. to recognise the harm done to the victim of the crime and the community.

104. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. Given the maximum penalties provided, the standard non-parole period prescribed for the Grooming offences clearly there must be a sentence of imprisonment in this matter. I did not understand counsel for the offender to submit otherwise

105. This is an appropriate matter to invoke section 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. I have already dealt with the issue of partial accumulation both in respect of the different offending in respect of which I am passing sentence and the sentence that followed the Intensive Correction Order being revoked.

106. It will be necessary to indicate what sentences would have been imposed had separate sentences been imposed. Those sentences are:

1. In respect of the offence of Fail to Comply with Reporting Obligations a total sentence of 12 months indicating a starting point of 1 year 4 months;

2. In respect of the charge of Groom Child for Unlawful Sexual Activity involving the victim OA, taking into account the Form 1 matter, a non-parole period of 12 months with a balance of term of 12 months making a total sentence of 2 years indicating a starting point of 2 years 9 months; and

3. In respect of the charge of Groom Child for Unlawful Sexual Activity involving the victim ME taking into account the Form 1 matter a non-parole period of 8 months with a balance of term of 7 months making a total sentence of 1 year 3 months indicating a starting point of 1 year 8 months.

Orders

107. In respect of the three offences to which the offender has pleaded guilty he is convicted.

108. The offender is sentenced to an aggregate sentence of 2 years and 10 months with a non-parole period of 1 year and 3 months.

109. The non-parole period will commence on 26 October 2019 and will expire on 25 January 2021. The balance of term will commence on 26 January 2021 and will expire on 25 August 2022.

110. This sentence involves a very substantial finding of special circumstances, the reasons for which have been earlier enunciated in these reasons.

111. The offender is to be released to statutory parole at the expiration of the non-parole period.

112. Parole should be supervised by the Department of Community Corrections and is to be conditioned that the offender obeys all reasonable directions relating to participating in a sex offender’s programme.

113. A copy of the report of Ms Howell and a copy of the report from the Queenscliff Centre contained within exhibit 1 should be annexed to the warrant that is forwarded to the Department of Corrective Services.

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Decision last updated: 14 August 2020