R v Rodda

[2024] NSWDC 190

District Court

New South Wales

Medium Neutral Citation:

R v Rodda [2024] NSWDC 190

Hearing dates:

14 July 2023; 21 November 2023

Date of orders:

01 May 2024

Decision date:

01 May 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Ben Rodda is convicted.

2 Without passing sentence, I order that the offender be released upon entering into a recognisance pursuant to s 20(1)(a) Crimes Act 1914 in the sum of $1.00, on condition that he is of good behaviour for a period of 2 years from today and comply with the following additional conditions:

(a)   he is to be subject to the supervision of Community Corrections;

(b)   he is to obey all reasonable directions of a Community Corrections officer;

(c)   he is not to travel interstate or overseas without the written permission of a Community Corrections officer; and

(d)   he is to undertake such treatment or rehabilitation program that a Community Corrections officer reasonably directs.

3   The offender is to report to Dubbo Community Corrections office on or before 5.00pm on 8 May 2024.

4   A copy of the order is to be posted to the offender at his grandmother’s address.

Catchwords:

CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity

Legislation Cited:

Crimes Act 1914

Crimes (Sentencing Procedure) Act 1999

Criminal Code Act 1995 (Cth)

Cases Cited:

Johnson v The Queen (2004) 78 ALJR 616

R v El Karhani (1990) 21 NSWLR 370

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Ben Rodda (Offender)

Representation:

Counsel:
C Akthar (Crown)
P Butterfield (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Kapsis Solicitors (Offender)

File Number(s):

2022/54338

Publication restriction:

None

JUDGMENT

1. Ben Joseph Rodda (the offender) appears for sentence after pleading guilty in the Local Court to an offence of use a carriage service to procure a person under 16 years for sexual activity, contrary to s 474.26(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is 15 years’ imprisonment.

Approach to Sentencing

2. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities:  R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

3. I must have regard to Part 1B of the Crimes Act 1914 in passing sentence and in particular the matters provided for in s 16A.

4. A Court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: s16A(1) of the Act The Court must take into account the matters listed in s 16A(2) that are relevant and known to the Court:  R v El Karhani (1990) 21 NSWLR 370. The list of factors in s 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].

5. The offender entered an early plea of guilty. The plea of guilty has saved the need for witnesses to be called at trial and there is significant utilitarian value in the plea. By pleading guilty the offender has facilitated the course of justice in circumstances presented to him. The plea also indicates remorse. The appropriate discount is 25%.

6. 5 An Intensive Corrections Order is not an available sentencing option for the offence: s 67 Crimes (Sentencing Procedure) Act 1999.

Facts

7. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

8. The offender was 19 years old at the time of the offending.

9. Between 19 and 20 February 2022, the offender engaged in a sexually explicit conversation on SnapChat with the Assumed Online Identity (AOI) of a 14-year-old girl, used by detectives attached to the Child Exploitation Internet Unit (CEIU). During the course of the online chat, the offender misrepresented himself as a 15-year-old boy and, believing the AOI to be a 14-year-old girl, established a “boyfriend-girlfriend” relationship over the course of two days.

10. On 18 February 2022, detectives attached to the CEIU commenced proactive online engagement on SnapChat using the AOI of a 14-year-old girl. The AOI visited the offender’s SnapChat profile “bk1969200”, which had the display name, “Im a Lover”. The AOI clicked “add friend” and a few hours later, the offender messaged “Hey”.

19 February 2022

11. On 19 February 2022, the AOI responded and the offender asked after her age and what she looked like and misrepresented himself as a 15-year-old boy. The offender sent a photo of his face and asked where in Sydney the AOI was from. After it was established that they lived close to one another and that the AOI was single, the offender asked her if she would like to “date” him. The AOI agreed to be the offender’s girlfriend and told him that she had never had a boyfriend before.

12. The offender then asked if she could send a picture of herself to him, to which the AOI said she could, but her mother was around. The offender told her that he loved her and asked again for a photo of her. The AOI sent him a photo and the offender told her that she was “hot”.

13. After 34 instant messages, the offender encouraged the AOI to visit him that day or the next to “hug [and] kiss”. The AOI told him that she had “never done stuff like that” before, to which the offender responded that it was okay and that he loved her. The AOI asked whether he thought she was “weird” for this reason, and the offender told her that he was also “weird”.

14. The offender then initiated a game of “truth or dare” with the AOI. During this game, the offender asked her how much he loved her and the AOI said that although they had just met, she loved him. The AOI asked the offender whether he really wanted to be her boyfriend, to which the offender responded that he did. The offender also asked the AOI whether she would want to kiss him and the AOI said she would if he wanted her to. The offender then asked the AOI “Wanna see my Donya”, but immediately deleted it.

15. The offender escalated the sexual nature of the conversation and asked the AOI whether she would “sleep” with him. The AOI asked him what this meant. The offender did not directly respond to this and instead asked whether it was “true” that she wanted to “see” him, and when the AOI asked him what this meant he said he meant see him in person. The AOI said that she did. Later in the conversation, the offender asked whether she would “sleep” with him. The AOI said that she would if he kept her “warm”, to which the offender responded “oh I will [smirk face emoji]” and the AOI then said “Good I hate being cold!”.

16. The AOI then asked the offender again if he was really 15 years old and the offender said he was “nearly 16”.

17. The offender then “dared” the AOI to “sleep naked” with him. The AOI responded that she had never been naked in front of a guy before. The offender deleted this exchange.

18. The conversation continued and the AOI expressed that she did not have any sexual experience, before the offender asked if she would “shower” with him. The AOI said she would if he wanted her to and the offender told her that he loved her. He then asked whether she was a “virgin” and okay with him asking her that. The offender told her that he was a “virgin”.

19. The offender sent, and then deleted the message, “I dare you to show me your tits”. The AOI asked what the offender deleted, to which the offender responded “idk but can I”. The AOI asked him to clarify and he said, “See your tits”. The AOI told him that she had never shown her breasts to anyone before and was “kinda nervous”. He told her to “breathe and show me babe I won’t laugh”. The AOI said that her mother was around so she could not send a photo and the offender responded “soon then”. The offender told her that he wanted to see her breasts because he loved her.

20. The offender then dared the AOI to visit him. He told her that he was thinking about seeing her.

21. He then asked the AOI whether she wanted to see his penis. The AOI said she would if he wanted to show her and that she had never seen a penis before. The offender sent her a photo of his erect penis. The offender deleted this exchange, including the photo of his penis. However, the conversation continued, and the offender asked the AOI, “Do you love it”. The AOI said that his penis looked “big” and the offender said that it was. The AOI asked why he deleted it and the offender resent the image. The AOI said “wow” and the offender said “U love it”. The AOI asked whether he had taken the photo as they were messaging and he said that he had. The offender then asked if she would like to “touch” his penis. The AOI said that she did not know how to do this, and the offender said “[you] just touch it” and “rub it”. The offender asked if she wanted to do this and the AOI said she would if he wanted her to.

22. The offender then asked the AOI to go to her room and close the door. When she had done this, he requested photos of her. She said that she would if he sent her a photo of himself too. The AOI sent a photo of herself, to which the offender responded “sexy” and told her that she was a “babe”, before sending an image of himself in shorts in a bathroom.

23. The AOI asked the offender why he wore a ring on his finger in the photo. The offender clarified that he was not married but wanted to marry her when she turned 18.

24. Later in the conversation, after establishing that the AOI wanted to meet the offender “in real life”, the offender asked, “Would [you] fuck me just asking”, to which the AOI responded, “I’ve never done it before though”. The offender deleted this exchange. The conversation continued with the offender saying that he wanted to have sex with the AOI and that he had been told it “feels good”. The AOI then said that they could have sex if the offender wanted them to. The offender then sent, and deleted, a message asking whether the AOI would kiss him. The AOI then asked whether they were “boyfriend” and “girlfriend” and the offender told her that they were. The conversation further escalated when the accused “dared” the AOI to “go to the bath and play with yourself”. The AOI asked him how to do this and the offender said, “put your fingers in down there and go back and forwards fast”. The offender told the AOI to “show” him by sending a video whilst she was masturbating. The AOI asked why he wanted her to do this, and the offender said “so I believe [you]” and then “I just want to see if that’s okay”.

25. The AOI told him that she was in the bathroom and had taken off her pants. The offender asked for a photo and the AOI told him that she felt nervous because she had never taken a naked photo before. The offender told her that he would not laugh and asked if it would help if he sent one. She then told the offender that she would not send a photo because it felt “weird” to do so. The offender then sent an image of himself standing naked with an erect penis in the reflection of a mirror and asked if that would help her send a photo. The AOI said “wow” and then expressed concern that her mother was nearby and told him that she was “stressing”. The offender told her to tell her mother than she had an upset stomach. The AOI told him that she was going to go out to lunch with her mother. The offender told her to text him when she got back and that he loved her.

20 February 2022

26. The next day, the Snapchat conversation continued and the offender suggested that they meet in person later in the week to “shower together” at his uncle’s address in Bankstown. The offender provided a geo-pin location of his uncle’s house and suggested that the AOI take public transport to avoid her mother knowing. He agreed to pick her up from the station. He then asked how much she wanted to see him, and the AOI responded “heaps”. The AOI then asked why the offender loved her, and he responded, “I just do babe”. The offender then asked if the AOI would kiss him “straight away” when they met. The AOI said she would if he wanted her to. The offender said he did.

Arrest

27. On 21 February 2022, the AOI messaged the offender but he did not respond.

28. On 24 February 2022, a search warrant was executed at the offender’s residence and he was arrested. The offender was conveyed to Bankstown Police Station, where he gave no comment.

Sentencing Assessment Report

29. The Court received a Sentencing Assessment Report dated 9 February 2023 and an updated SAR dated 6 October 2023. The contents of the reports can be summarised as follows.

30. The offender spent most of his childhood with his paternal grandfather.

31. The offender has fathered several children, with whom he does not maintain contact.

32. He was residing with his maternal uncle at the time of the offending. He has become estranged with his uncle and family since committing the offence. He lacks familial support. His current social circle consists of antisocial peers. He is currently unemployed and working with his job provider to source employment.

33. He completed Year 11 at Dubbo College Senior Campus.

34. The current offence is the offender’s first adult charge. The offender expressed embarrassment for his offending. He told the author of the SAR that at the time of the offence, he was under the influence of several drugs and he could not remember sending the messages. However, he took responsibility for the offences. He identified that access to social media, combined with substance misuse has been a risk factor for him in the past.

35. The offender started using alcohol and cannabis at age 13. He consumed alcohol daily until the age of 16, when he relocated to live with his grandmother. After leaving school and his grandmother’s care, he was using methylamphetamine, heroin and cannabis daily. When he moved to Sydney, his drug use escalated. The offender reported that he continues to use cannabis and methylamphetamine daily.

36. The offender’s risk of sexual reoffending was measured as above average by a Correctives Services NSW (CSNSW) psychologist. The report by the psychologist, attached to the SAR, indicated that the offender appears to have limited capacity for establishing and maintaining stable intimate relationships with age-appropriate peers. The offender identified that a lack of impulse control in seeking sexual contact remains a concern.

37. The offender reported that he has prior diagnoses of mental health conditions. The CSNSW psychologist report indicated that he recently attempted suicide. The offender has previously participated in private counselling to manage his mental health conditions but he is not currently engaging in treatment.

38. The offender expressed disappointment in his behaviour and his estrangement from his family but appeared to the author of the SAR to emphasise the impact of his offending on himself rather than the victim. He expressed a desire to seek treatment.

39. The offender was assessed as at a high risk of reoffending. The offender is eligible for both community and custody-based CSNSW Sex Offender Programs.

40. The updated report states that the offender has engaged with the NDIS to assess his need for support services. He has enrolled in the MERIT program in Dubbo and achieved abstinence from ice and heroin for a period of time. He is no longer associating with negative peers and has had support from his grandmother to obtain NDIS funding. Community Corrections has revised its previous supervision plan and the author of the updated report confident that the offender can be assisted in the community. He is assessed as suitable to perform community service work, which can be provided for up to 21 hours per month.

41. In more recent times, the offender has had little contact with his grandmother and failed to come to Court on the last occasion. He did, however, attend for an occupational therapy functional capacity assessment as part of his application for NDIS. The report of Ms Lewis dated 30 January 2024 set out the offender’s priorities for obtaining NDIS assistance.

Offender’s Case on Sentence

42. The offender tendered the following documents:

1. report of Sam Borenstein (clinical psychologist) dated 31 March 2023;

2. medical report dated 27 March 2014;

3. medical report dated 4 May 2015;

4. medical report dated 24 June 2016;

5. medical report dated 6 March 2017;

6. report of Greg Tyrer (psychologist) dated 25 October 2017;

7. medical report dated 9 February 2018;

8. medical report dated 18 June 2019;

9. medical report dated 10 September 2019;

10. medical report dated 8 October 2019;

11. medical report dated 5 November 2019;

12. medical report dated 5 August 2021;

13. Challenge Community Services report dated 16 September 2019; and

14. occupational therapy functional capacity assessment report of Jessica Lewis dated 30 January 2024.

43. The following is a precis of the evidence relied upon by the offender.

44. The offender was born in Dubbo in 2002. He is the eldest of three siblings born to his parents’ union. He also has two half-siblings.

45. The offender had in-utero exposure to alcohol and multiple other drugs. During her pregnancy, his mother drank at least 12 beers per day and 350mL of spirits. When the offender was born, he had convulsions immediately after birth attributed to withdrawal from substances.

46. The offender’s father left the family soon after the offender was born. Both of his parents used drugs and his mother also consumed alcohol to excess. He was placed in the care of his paternal grandparents from when he was aged four or five and remained in their care until he was 17.

47. The offender was sexually abused by his stepfather as a child, and also physically and psychologically abused by his parents. He had multiple traumatic brain injuries both with and without loss of consciousness, from physical abuse by his father.

48. He attended three primary schools in Dubbo and then completed Years 7–11 at Dubbo College. He left high school 10 months into Year 12. The offender reported that he struggled at school and was in support classes. He reported being bullied at school for being short in stature, wearing glasses, having earrings and his surname. He gravitated to students who were similarly marginalised. He played sport but struggled socially and academically in school. After leaving high school, the offender’s alcohol and drug use escalated and he stole money to sustain his use. He worked in an abattoir for one week but has otherwise not worked.

49. The NSW Trustee and Guardian is involved in managing the offender’s finances.

50. The offender has limited capacity for establishing and maintaining a stable intimate relationship.

51. At the time of the offending, the offender was spending over $200 per day on cannabis. He was also regularly consuming alcohol.

52. The offender was diagnosed by Dr Iain Perkes in 2019 with Foetal Alcohol Spectrum Disorder and Attention Deficit Hyperactivity Disorder (ADHD).

53. The offender was assessed for intellectual functioning when he was 13 and identified as having no better than low average abilities across the board, except for working memory, where performance was in the 3rd percentile, consistent with his diagnosis of ADHD.

54. The offender’s paternal grandmother is acting as his guardian and has done so for the last 14 months.

55. The offender expressed guilt and remorse for his actions and reported that they occurred whilst he was under the influence of drugs and alcohol.

56. Mr Borenstein opined that the offender has borderline to low average intelligence, and equally low emotional intelligence.

57. 12   In this report, Dr Perkes referred to an incident in which the offender was coerced into simulating a sexual act on a cat, which was videoed and shared. He told Dr Perkes that he was threatened with physical assault if he did not do this. At that time, he was removed from mainstream schooling to protect him from bullying. He was referred to the NDIS and remained under the care of Challenge Community Services and Mr Tyrer, his treating psychologist, who died prior to the offence.

43. The offender also received diagnoses of Complex Trauma Disorder and Oppositional Defiance Disorder from other treating psychologists that he had as a teenager. Medical documents from the time refer to the offender demonstrating inappropriate sexualised behaviour, obsessions around screen time, difficulty relating to social skills and conflicts with his guardian.

44. The offender has recently maintained stable accommodation with a friend in Dubbo.

Consideration

The nature and circumstances of the offence

60. The messages passing between the AOI and the offender were indicative of the immaturity and naivety of the offender, with the offender tyring to establish a boyfriend/girlfriend relationship. I am satisfied that his search for a relationship was genuine and not a ploy to engage in grooming. The AOI’s gentle encouragement of the offender led to more sexualised exchanges that were substantially below the norm for these types of offences. The messages were not especially explicit and were consistent with the offender trying to establish a genuine relationship.

61. The offender did misrepresent his age as 15 and later 16, being an age closer to the age of the AOI’s assumed identity. The offender used a user-name that was permitted on Snapchat and I am not satisfied that the offender tried to mask his identity to avoid detection.

62. The offence was constituted by a series of messages occurring over two days. No real children were involved or exposed to inappropriate online content.

63. I am satisfied by reference to the nature and extent of his mental condition that the offender did not really understand the nature and consequences of his actions. The offender has been the victim of abuse and exploitation over a lengthy period of time by many people, including those very close to him. It is hardly surprising that he would seek to engage with a prospective female partner who was being nice to him and expressing a sexual interest in him. The offender’s progression to sexually inappropriate content was consistent with his abnormal sexual development against the background of extensive trauma and his serious mental condition.

64. I have taken into account the maximum penalty for the offence.

Deterrence

65. General deterrence has been expressed as a paramount consideration for similar kinds of federal offences by the intermediate appellate courts.

66. General deterrence may be afforded less weight where a person suffers from a mental condition because they are not an appropriate person to be made an example of. This is such a case. The circumstances of the offender’s foetal development and his upbringing have led to him suffering from a serious and complex mental condition. As a consequence of that condition, he fails to understand normal sexual relationships and has engaged in sexually inappropriate behaviour in the past. There is a direct causal connection between his mental condition and the offending conduct. I find that his moral culpability for the offence is very low.

67. There is a need for specific deterrence, but it is also significantly reduced. He needs assistance to live in the community and to cope with his mental condition to reduce his risk of reoffending.

Contrition

68. The offender has accepted that his conduct was illegal and expressed disappointment in his own behaviour. He has accepted that there could be victims of this type of behaviour. The offender acknowledged that his conduct had caused estrangement from his supportive family members. I am satisfied that the offender has accepted responsibility for his actions and that he is genuinely contrite.

Character, antecedents, age, physical and mental condition

69. The offender is presently 21 years of age. He was 19 years of age at the time of the offences and has no prior convictions.

70. The offender sustained multiple traumatic brain injuries as a child from physical abuse. He suffers from a myriad of mental health conditions including FASD, ADHD and Complex Trauma Disorder. The offender also has intellectual functioning at a very low level.

71. The offender had a deprived upbringing marred by alcohol and other drug use by his parents, physical and psychological abuse. His schooling was adversely impacted. He became influenced by anti-social peers and was introduced to drug use. He was diagnosed with serious mental conditions as a child. As a result of the combination of all of these circumstances he has not engaged in paid employment. His deprived upbringing also supports a finding that his moral culpability for the offence is significantly reduced.

72. He has recently been accepted by the NDIS and is in the process of obtaining much needed support. He has reengaged with his grandmother who has been assisting him to seek support services in the Dubbo area. He has been enrolled in the MERIT program in Dubbo and has recently achieved abstinence from ice and heroin. He has been assessed as suitable for supervision by Community Corrections and a supervision plan has been devised to assist him to obtain support services in the community.

73. He has a history of exploitation caused by his mental condition. I am satisfied that he would be at substantial risk of exploitation and abuse in custody. I am also satisfied that time in custody would expose him to further trauma and would likely lead to a marked deterioration in his complex mental condition.

Prospects of rehabilitation

74. The sentence proceedings were adjourned to allow the offender an opportunity to stabilise his accommodation and to engage with support services, particularly through pursuing an application to the NDIS. The offender took advantage of the opportunity to some extent and appears to have made genuine steps towards dealing with some of his criminogenic risk factors. It is unclear whether he has stable accommodation or is at this point engaging in alcohol or other drug counselling.

75. His prospects of rehabilitation remain mixed, but with proper support, I am satisfied that this can amount to a positive factor in his favour.

Penalty

76. I have considered s 17A Crimes Act 1914 and I am satisfied after having considered all possible alternatives on the facts of this case, that a sentence of imprisonment is appropriate.

77. I am satisfied for the reasons given in this judgment that there are exceptional circumstances. The offender was not aware of the true quality of his actions by reason of his profoundly deprived background and tempted into them on the promise of a relationship. He needs support to live in the community and hopefully his connection to services provided by the NDIS will assist him to adjust and give him the opportunity to live a productive life.

78. Ben Rodda is convicted.

79. Without passing sentence, I order that the offender be released upon entering into a recognisance pursuant to s 20(1)(a) Crimes Act 1914 in the sum of $1.00, on condition that he is of good behaviour for a period of 2 years from today and comply with the following additional conditions:

1. he is to be subject to the supervision of Community Corrections;

2. he is to obey all reasonable directions of a Community Corrections officer;

3. he is not to travel interstate or overseas without the written permission of a Community Corrections officer; and

4. he is to undertake such treatment or rehabilitation program that a Community Corrections officer reasonably directs.

80. The offender is to report to Dubbo Community Corrections office on or before 5.00pm on 8 May 2024.

81. A copy of the order is to be posted to the offender at his grandmother’s address.

82. If the offender fails to comply with the conditions of the order, further action may be taken against him. This may require him to return to Court.

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Decision last updated: 28 May 2024