R v Pilsbury

[2022] NSWDC 484

District Court

New South Wales

Medium Neutral Citation:

R v Pilsbury [2022] NSWDC 484

Hearing dates:

01 April 2022; 21 April 2022

Date of orders:

21 April 2022

Decision date:

21 April 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 1 year 10 months. To be released forthwith upon entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). See orders [33]

Catchwords:

CRIME – using a carriage service to transmit indecent communications to a child under the age of 16

SENTENCING - Relevant factors on sentence –impact on children of internet offences considered - offending on one night - a relationship of trust with the child victim was broken - early guilty plea- aberrant behaviour – offender otherwise has no convictions - drug use - steps toward rehabilitation - impact of delay - is full time custody required?

Legislation Cited:

Criminal Code Act 1995 (Cth)

Crimes Act 1914 (Cth)

Cases Cited:

Adamson v R (2015) 47 VR 268

Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73

Kannis v R [2020] NSWCCA 79

Magnuson v R [2013] NSWCCA 50

R v Asplund [2010] NSWCCA 316;

R v Cattell [2019] NSWCCA 297

R v McCall [2022] NSWDC 78

R v Tector [2008] NSWCCA 15

R v Todd [1982] 2 NSWLR 517

R v Tuala [2015] NSWCCA 8

Small v R [2020] NSWCCA 216

Stanton v R [2021] NSWCCA 123

The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Xiao v R [2018] NSWCCA 4

Texts Cited:

Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3

Category:

Sentence

Parties:

Micah John Pilsbury (the offender)
Director of Public Prosecutions (Commonwealth)

Representation:

Counsel:
Mr S Schaudin (for the offender)

Solicitors:
Toomey Defence Lawyers (for the offender)
Mr J Inan (for Commonwealth Director of Public Prosecutions)

File Number(s):

2021/00130175

SENTENCE – EX TEMPORE REVISED

1. When he was before the Local Court Micah John Pilsbury said he would plead guilty to an offence pursuant to s 474.27A(1)1 of the Criminal Code Act 1995 (Cth). The offence related to his using a carriage service to transmit indecent communications to a child under the age of 16. Those communications included material that was indecent. The offence occurred on the evening of 27 December into the morning of 28 December 2013. The offence carried a maximum penalty of seven years imprisonment.

Agreed facts

2. There are agreed facts before the Court.

3. At the time of the offending the complainant in the matter was 15 years old. Her mother and the offender had previously been in a relationship. They had maintained contact and she considered him to be her stepfather.

4. On 27 December 2013 there was an initial message and then, into the next morning, a spate of messages sent to the complainant using Facebook Messenger. There were 30 messages in all. They had as attachments 37 images of adult pornography, including close-ups and photographs of oral sex.

5. The nature of the communications was clearly indecent. They were, as Mr Inan, solicitor for the Commonwealth Director, pointed out in oral submissions, “personal, targeted and intense.”

6. There is some debate as to whether judges should repeat communications such as those revealed in the agreed facts. In my view, having read them, to publish them again would do two things, firstly, it could go to increase the harm suffered by the complainant and, secondly, further publication would disseminate child abuse material. It is enough to say, that the communications were indecent and, personally targeted toward the complainant.

7. If these communications had been passed between two consenting adults no crime would have been committed. But it is important to note that as the offender well knew, he was dealing with a child, a child who looked up to him as her stepfather. There was no consent here. She was entitled to treat him as a person she could look up to as a mentor, someone she could trust not to abuse her.

8. Pillsbury told me that the communications took place while he was well-affected by an illicit drug probably methylamphetamine. Other evidence supports the conclusion at the time he was acutely disinhibited by that drug. That provides him no excuse whatsoever; drug use does not and cannot mitigate a crime. At best his drug use helps explain what was, on all the material before me, grossly criminal behaviour. It also helps me conclude that it was aberrant, because there is no indication that, apart from his drug use, Pilsbury has otherwise offended. He has no convictions on his record.

Objective seriousness

9. I have to consider the age of the complainant relative to the section. Obviously the younger the child the worse the offence. Here she was 15, within a year of the age specified in the section. Their age difference, however, 32 years and importantly their relationship must be taken into account. So too is the nature of the material, not just messages but the accompanying visual images. I note that after the incident she “blocked him” and there was attempt by him to follow-up.

10. Every case is individual. Recently I dealt with a matter that was a much more serious example of more recent offending: R v McCall [2022] NSWDC 78. But as I said in that case, a fundamental premise for the Commonwealth child sex carriage service offences is that every act involving the sexual exploitation of a child is serious, whether that is exploitation is physical or, as here, by the use of a carriage service: Adamson v R (2015) 47 VR 268; Kannis v R [2020] NSWCCA 79.

11. The internet can be used as a highly effective medium through which to exploit and sexualise vulnerable children; who often have unsupervised access to it. Children are vulnerable to predatory criminal communications from, sadly and generally, much older men, who want to use them for the purpose of their own sexual gratification: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [89]; Small v R [2020] NSWCCA 216; R v Asplund [2010] NSWCCA 316; R v Tector [2008] NSWCCA 15.

Victim impact

12. The harm done to child victims by carriage service or cybersex offences can be no less serious than “in person” offences. It is well recognised that such offences can have profound and deleterious effects upon victims for many years, if not the whole of their lives; matters pointed out in the Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3; and Stanton v R [2021] NSWCCA 123. It must be repeated and repeated that any exposure of children to premature sexual communications are serious offences. Here, the seriousness of what was done goes beyond not the communications themselves, there was also a breach of trust.

13. The impact of the offending on the prior and continuing relationship with the child made this matter particularly serious. In her Victim Impact Statement, which I have read, she speaks of her distrust and paranoia about men, her loss of trust and her sense of betrayal. She also spoke of her relief that the matter can be finally resolved. The Victim Impact Statement provides an opportunity to draw to the Court’s and the community’s attention the damage caused by such matters.

14. The diversity of abuse experiences means that the outcome of such offences will also be diverse. Here the victim impact statement attests to the sort of harm that might be expected of the offence in question. I have no difficulty accepting its contents: R v Tuala [2015] NSWCCA 8.

Other relevant matters

15. There is a maximum penalty of seven years, it is one important guide to the exercise of my sentencing discretion.

16. The plea of guilty was entered in the Local Court, it had utilitarian value; it saved the child from having to give evidence: a 16A(2)(g) Crimes Act 1914 (Cth); Xiao v R [2018] NSWCCA 4 at [269]–[278].

17. There was lengthy delay following the initial complaint to police in 2019. The offender, when he found out about the arrest warrant, surrendered to police. That is one measure of the man. He did not seek to avoid the consequences of his actions. His acceptance of responsibility at a relatively early stage, and his co-operation with both the Police and New South Wales Community Corrections all must be taken into account.

18. As I have said, he has no prior criminal history. This goes to his prospects for rehabilitation being successful, but there are countervailing principles that must be considered. His good character meant that he was trusted by the child and that trust enabled him to make the communications. He did, however, voluntarily, desist after this very short period of offending, he did not pursue the matter.

19. There is considerable delay, therefore, between the commission of the offence, the reporting of the offence, the arrest and this matter being able to be disposed of by the Court. Sentencing for a stale crime calls for a considerable measure of understanding and flexibility; R v Todd [1982] 2 NSWLR 517. This is particularly so if the offender ceased offending without formal intervention, as here. There is no general principle as to how or whether leniency should arise from delay. Each offender is entitled to have their case evaluated based on the material put before the Court.

20. On one hand the delay has meant that he has had the opportunity to demonstrate a capacity to continue to lead a prosocial life and demonstrate that this was a single episode event of aberrant criminal behaviour. It makes it less necessary to punish him to deter him from future offending. On the other hand, he has escaped justice for nearly a decade and enjoyed a life free from the opprobrium or punishment for his crimes: Magnuson v R [2013] NSWCCA 50 at [62]: R v Cattell [2019] NSWCCA 297.

Offender’s background

21. Pilsbury gave evidence. He confirmed the history given to his psychologist. He provided two references. There was one minor matter in his history, noted at paragraph 31 of his psychologist’s report, that I will disregard. That seems to be a recording error.

22. He was born in 1981, he grew up with his mother and stepfather. He reports he was sexually abused himself when he was a young boy and by another man at 13. About the same time, he witnessed his mother being stabbed. The impact of those crimes has left him on edge and angry. He enjoyed school but he left home at 16 and became involved with the Hare Krishna movement. He found that fulfilling. But he also reports over much of his life reckless behaviour, both in his adult sexual activities and his drug and alcohol use. He has had a number of relationships which are described as “dysfunctional” or “co-dependant”. He has variously, at times in his life, attempted to engage with the Hare Krishna movement to keep sober. He has engaged in rehabilitation. He is presently having another attempt with the assistance of Narcotics Anonymous and is engaged in their 12-step program with a sponsor, who provided one of the references before the Court. He currently has a job and accommodation.

23. His psychologist, Mr Randall, notes that, given his trauma as a child, he meets the criteria for Post-Traumatic Stress Disorder. Mr Randall notes the history of addictive behaviour and concludes that such behaviour, including addictive sexual behaviour, is indicative of a trauma response and is commonly found in people with drug use disorders. He notes the offender’s motivation towards treatment. At [94] he says:

“Mr Pilsbury presents as a man with a poor sense of personal identity, poor interpersonal and sexual boundaries who gets engaged in self‑soothing behaviour to manage his feelings of depression. As such, Mr Pilsbury’s response to the trauma he experienced, particularly as a child, present a lens through which this offence can be viewed”.

24. Mr Randall goes on to make recommendations for a range of interventions to support and address Pilsbury’s problematic use of alcohol, drugs and compulsive sexual behaviour. He requires support to address his depression as well as his past sexual abuse. He would be suitable for a sex offender group, which can be facilitated particularly by an external therapist.

25. The Sentence Assessment Report is generally positive. The limited sex offender report attached to it notes that he would be unlikely to be eligible for sex offender programs. It recommends he be referred to the EQUIPS addiction program. It strongly recommends that he continue with Narcotics Anonymous.

Submissions

26. Not every question in sentence proceedings involves a choice between extremes of human behaviour. The fixing of sentencing is not a simple choice between black and white. I have to take into account and consider many competing principles and synthesise them. In that regard I have had the benefit of both written and oral submissions from Mr Inan and Ms Armstrong for the Commonwealth Director and Mr Schaudin, counsel for the offender, who have drawn my attention to a number of important cases. I have the benefit of considerable and well-chosen authorities and summaries provided by them.

27. They help in the consistent application of sentencing principle and the guidance offered by appellate courts and other decisions of this Court is always welcome. Past offences can serve as a yardstick, a measure against which to consider this individual sentence, but each offence and each offender is individual. “Sentencing is a discretionary judgment and the mix of factors that must be weighed in determining appropriate sentence will never be precisely the same as in a past case or cases”; Bell and Gageler JJ in The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550.

28. The Crown’s position is clear, so serious were these offences that when I consider s 16A Crimes Act 1914 (Cth), and the restrictions in s 17, a custodial sentence is required. And that custodial sentence should have a period of actual imprisonment. I note that the constraints from recent amendments to s 17A do not apply given the date.

29. Mr Schaudin, for the offender, accepts the seriousness of the matter but his ultimate submission is that there is no need for the Court to order the cell door to close upon this offender as the delay and the other matters, raised mean while a sentence of imprisonment is called for, immediate release is appropriate.

Synthesis

30. How do I synthesise all these matters? I note the general principles. I note I must impose a sentence appropriate to the circumstances of the offending. Given the ease with which the internet can be exploited general deterrence a significant factor. Courts should also impose a sentence that marks the Court’s view of the seriousness of the crime and let other wrongdoers know the retribution that will fall upon them if they commit similar crimes. I accept that specific deterrence has been satisfied. I also accept that if the underlying matters that led to the making of this series of communications can continue to be addressed, it is unlikely he will offend again.

31. I have given careful consideration to whether general deterrence requires a period in custody. It is sometimes said that others would not notice a sentence having an impact if the cell door does not close, and there may be some rationale for that conclusion. But here if the offender was to go to custody it would be for a relatively short period. Gaol would disrupt his progress towards rehabilitation. He would be subject to COVID restrictions, including the sad fact that COVID is now rife in the gaol. He would be subject to quarantine and then quarantine again should COVID be in the wing or the gaol where he is present. Sadly, daily I hear reports that prisoners cannot be brought to court because they are in “red zone”. I am aware and I keep updated the Community Corrections website and the Judicial Commission website as to current COVID restrictions. He would not be, as a Commonwealth prisoner, entitled to early parole should he catch COVID, not that anyone in New South Wales has been given the benefit of those provisions.

32. I then must take into account the delay and the level of co-operation he has shown in this matter. While a custodial sentence must be imposed, and one that reflects his plea of guilty, I can see no additional utility in requiring him to serve a short period in custody. Should, however, he not keep to the conditions of the recognisance I intend to impose then he may well be placed in custody. As I said, his prior good character would give me reason for optimism but that would not occur.

Orders

33. The formal orders of the Court therefore are that I will impose a sentence, but it will be suspended pursuant to s 20(1)(b).

34. Mr Pilsbury, you are convicted. Taking into account your plea of guilty you are sentenced to a term of imprisonment of one year and ten months. I direct that you be released forthwith upon you entering into a recognisance pursuant to s 20(1)(b) Crimes Act 1914 yourself in the sum of $400 with the following conditions

1. to be of good behaviour for a period of two years six months from this date;

2. to appear to receive a sentence, if called upon to do so, at any time in respect of any breach within the said period;

3. to accept the supervision and guidance of an officer of Community Services New South Wales for as long as they deem necessary and obey all reasonable directions;

4. to report to the Hornsby Community Corrections office within 7 days of today;

5. engage as directed in programmes;

6. that he is not to travel interstate or go overseas without the written permission of a probation officer. That is a standard direction we have been asked to apply

35. Copy of the psychological report of Graeme Randall is to be forwarded to Hornsby Community Corrections.

36. To offender is to attend the District Court Criminal Registry, Level 3, 143-147 Liverpool St, Sydney at 2pm today to sign the order

37. AUDIO VISUAL LINK CONCLUDED AT 12.05PM

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Decision last updated: 18 October 2022