R v Rzeminski

[2022] NSWDC 731

District Court

New South Wales

Medium Neutral Citation:

R v Rzeminski [2022] NSWDC 731

Hearing dates:

11 November 2022

Date of orders:

11 November 2022

Decision date:

11 November 2022

Jurisdiction:

Criminal

Before:

Haesler SC DCJ

Decision:

Sentenced to a term of imprisonment of 15 months. To be released forthwith upon entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). See orders [30]

Catchwords:

CRIME – Use carriage service-procure child under 16 years for sexual activity

SENTENCING - Relevant factors on sentence – guilty plea – seriousness of online child sex offences- additional matter on schedule- use of Assumed Online Identity - period in custody for breach of bail - time served sufficient deterrent - recognisance can meet purposes of sentencing relevant to rehabilitation

Legislation Cited:

Crimes Act1914(Cth)

Criminal Code Act 1995 (Cth)

Cases Cited:

Adamson v R (2015) 47 VR 268

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

R v Dennison [2011] NSWCCA 114

R v Porte [2015] NSWCCA 174

Category:

Sentence

Parties:

Noah Alexander Rzeminski (the offender)
Director of Public Prosecutions (Commonwealth)

Representation:

Solicitors:
Ms A Socorro, Legal Aid (for the offender)
Ms I Kallinosis (for Director of Public Prosecutions, Commonwealth)

File Number(s):

2021/00144225

sentence – ex tempore revised

Introduction

1. Noah Rzeminski today adhered to a plea of guilty entered in the Local Court to a charge that, he between April 2021 and 4 May 2021 did, as a sender, use a carriage service to transmit a communication to another person, the recipient, with the intention of procuring the recipient to engage in sexual activity with himself and the recipient was under 16 years of age. That offence pursuant to s 474.26(1) Criminal Code Act 1995 (Cth), carries a maximum penalty of 15 years imprisonment.

2. He also asks that when I sentence him for that offence, I take into account on a s 16BA Crimes Act1914 schedule an offence of soliciting procure/using a carriage service; the material being child abuse material: s 474.22(1) Criminal Code. If sentenced separately that matter also carries a maximum penalty of 15 years imprisonment, but I do not sentence him for that matter. It is taken into account when I formulate the appropriate sentence for the matter to which the plea was entered. I will do so in accordance with the guideline judgment which applies in State and Commonwealth matters giving greater weight to deterrence and community protection for the matter for sentence: R v Dennison [2011] NSWCCA 114.

3. The maximum penalties are one important guide to the exercise of the Court’s discretion. They indicate, as Parliament intended, that Courts take into account that matters involving children by use of the internet can have profound and deleterious effects upon victims for many years. There is an absolute prohibition on sexual activity with children and that prohibition is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity.

4. The Courts recognise that the harm done to child victims of cybersex offences can be no less serious than in person offences and the medium of the internet permits offenders to employ techniques which are designed to coerce or groom a child in the participation of such activities.

5. The legislature has sought to implement society’s detestation of the practice of encouraging children to engage in inappropriate sexual behaviour and to protect children from immature decisions: Adamson v R (2015) 47 VR 268 at [27].

6. Accordingly, appellate courts have stressed the need to give primacy for the need for general deterrence and denunciation: R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 at [52]; Director of Public Prosecutions (Cth) v Watson (2016) 259 A Crim R 327; [2016] VSCA 73 at [89].

Facts for Sentence

7. Rzeminski was born in 1997. The agreed facts before the Court indicate that at the relevant time, he was using the internet on a chatroom utilising the screen name “MrSogynist”. He commenced a conversation with an Assumed Online Identity (AOI).

8. The use of an AOI is far from unusual. The community have to understand that proactive policing of chatrooms occurs in order to ensure that those who might be tempted to engage with children are promptly caught and brought before the Courts. The Criminal Code makes it clear that it does not require proof that the recipient of the communication was in fact a child under 16, it is the offender’s apparent knowledge of the age of that child that is critical.

9. He commenced the conversation with the AOI at about 4.20pm on 21 April 2021, at 4.56pm he was informed by the AOI that she was 14.

10. The conversations involved the AOI sending an image which I presume was innocuous and other apparently innocuous and friendly conversation. However, by about 6.41pm there is talk about age difference and a “date” and requests by the accused to see a “vid” of the AOI. She speaks about her mother and how she feels she is treated like a baby. She repeats her age.

11. By 6.50pm the accused is talking about whether she has a boyfriend or has ever kissed a boy, asking her about her sexual experience. He then makes some suggestions which on one level might appear innocuous were it not for the fact that he was talking to, as far he was aware, to a 14 year old girl.

12. A meeting is suggested and to his credit he offers a private or public meeting. There is a bit of confusion in the facts about the exact times but the following day there are further conversations with suggestions about meeting up; There is text talk of cuddling, touching, more pictures, the possibility of watching porn together.

13. At one stage on 21 April, the matter on the schedule, he asks for a “naughty pic” suggesting “bum and boobs”. The last conversation is on 4 May.

Objective seriousness

14. I am indebted to Ms Kallinosis, Solicitor Commonwealth Director of Public Prosecutions, and Ms Socorro, Solicitor with Legal Aid New South Wales, for their comprehensive written submissions. While there are some minor differences between them, they both agree that in the scheme of what are serious offences the particular matters fall towards the lower end of the scale, if it is possible to formulate a scale or range.

15. There are features of the offending which confirm that conclusion; with which I agree.

16. The offending occurred over four days. There are quite a number of individual conversations. The topics discussed clearly indicate grooming activity; and there were multiple requests for videos or pictures. It did not take long for sexual matters to intrude into the conversation. The extent of those sexual matters has to be considered when one looks at the apparent age relativities. It is agreed the matter falls towards the low end of the range because sadly much more explicit suggestions are commonly made by other offenders, and sadly some are sometimes carried through.

17. There was a degree of persistence, but it is mild. The AOI was not a child victim but a fictitious person. The offence could have been much more serious had a real child been involved. But the offender did not know this. There was, as the Crown suggests, some attempt by the offender to adjust the explicitness of his discussions once he was aware of the apparent experience of the child who he thought he was talking with.

18. A sentence must be proportionate to what was done. I have to consider the provisions of s 17 Crimes Act1914(Cth) and consider whether a custodial penalty is warranted. While the sentence must be of a severity appropriate in all the circumstances Parliament has made it very clear that for offences that it is it is expected that there will be a full time custodial component to any sentence for crimes of this type: ss16A(1) and 21(1)(b)(ii).

The case for the offender

19. I have the benefit of an affidavit from the offender’s mother. She sets out some of his personal circumstances. When he was on bail Rzeminski formed a relationship. Sadly, he decided that he knew better than the Courts and breached his bail conditions by moving in with that woman. His bail was breached, and he went into custody on 8 June 2022 where he remains. His child was born while he was in custody.

20. I do not punish him for breaching the bail, in many respects he has punished himself for not respecting the orders of the Court. It appears that until he went into custody he may not have understood or appreciated how serious his offending was and what the consequences might be.

21. I have the benefit of Sentence Assessment Reports of 8 December 2021 and 24 May 2022. They show he has some growing awareness of the seriousness of his crime. It put forward a supervision plan.

22. I also have the benefit of a comprehensive report from Mr Awit, a psychologist, who is prepared to help implement a treatment plan; involving individual psychological sessions including cognitive behaviour. In Mr Awit’s opinion and based upon his testing and interview Rzeminski fulfills the categorisation for social anxiety disorder, major depressive disorder, and substance use disorder, which he details in his report and to which I have had regard. He believes they were each operating at the time of the commission of this offence.

23. It is also clear that Rzeminski was using and abusing illicit drugs and alcohol at the time.

24. Some insight into why he suffers those conditions and why he was using and abusing alcohol can be found from the personal circumstances set out in his mother’s affidavit and the report. I note his mother was not required for cross‑examination.

25. I also note that Rzeminski did not give evidence. There is a history of domestic violence in the home and financial difficulties, particularly when his mother was a single mother. Although he did well at school there are a number of stressors in his life that have continued. He was able to matriculate but dropped out of university. There is some history of childhood traumatic incidents which have continued.

26. It is submitted that his moral culpability would be less than a person who did not have those backgrounds or those mental conditions. I accept that submission. The Courts have to be cautious. While it may help explain and may justify a degree of moderation of the penalty, the behaviour here was criminal, it was to a degree persistent, over a few days. But it was in clear breach of criminal legislation, which is serious for the reasons I have outlined.

27. The material before me also indicates that he has no prior criminal convictions. He has strong pro‑social support in the community. He has access to psychological treatment. And that despite matters in his background, that I have taken into account, he was able to lead a law-abiding life in the community. I suspect that, with assistance, he will continue to do so.

28. Turning now to the question of general deterrence. What that means is that the community expect appropriate punishment in matters such as this. The community also have to understand that people will be released to the community and the more help they can be given to resume a law-abiding life and not offend the better it is for everyone. So far as deterring him from doing anything similar again - if five months in custody have not gotten through to him how wrong his behaviour was it never will. I believe it has. He has endured COVID quarantine measures. I presume, as all prisoners have, he has endured lockdowns. The community should not underestimate the lived experience of gaol, they are not pleasant places.

Synthesis

29. Synthesising all those matters. I take into account the plea of guilty. I reduce the otherwise appropriate sentence by 25% to reflect the utilitarian value of his early guilty plea. I have formed the view that an appropriate sentence would be one of 15 months imprisonment. Taking into account his need for rehabilitation I have determined that the period in spent custody should be sufficient to meet the purposes of a sentence that require custody. I could have kept him in gaol for a couple of weeks longer but I can see utility in doing so for purely mathematical reasons.

Orders

30. You are convicted and sentenced to a term of imprisonment of 15 months imprisonment without hard labour. That sentence is to commence on 8 June 2022 and expire on 7 September 2023. I direct that you be released at the expiration of 153 days of your sentence on 11 November 2022. On entering into a recognizance, that is a promise, pursuant to 21B Crimes Act yourself in the sum of $400 without surety.

31. It means you are being released today, Mr Rzeminski.

32. The terms of his recognisance are;

1. To be of good behaviour for a period of 12 months from today.

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. Accept the supervision and guidance of an officer of Community Corrections NSW, for 12 months or as long as they deem necessary.

4. Report to the Wollongong Community Corrections office within 7 days of 11/11/2022.

5. Accept and comply with a Community Corrections supervision plan.

6. Commence and continue psychological treatment.

7. Abstain from drugs and alcohol for the period of the bond.

8. Engage in drug and urine testing if requested by Community Corrections

There are standard conditions that apply in matters such as this pursuant to 21(b) Crimes Act 1914.

9. You will be subject to supervision by a probation officer Obey all reasonable directions of the probation officer.

10. You will not travel interstate or overseas without the written permission of the probation officer

11. You will undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

33. Pursuant to s 23ZD Crimes Act 1914, in respect of the convictions noted the red Samsung mobile device (Exhibit No: 0003300225) are to be forfeited to the Commonwealth. Request a copy of the signed forfeiture order is forwarded to the Ms Kallinosis, Commonwealth DPP.

34. Mr Rzeminski, you will be subject, I just advise you, you will be subject to a child prohibition order. And I can tell you from experience that they are fairly rigidly enforced by the officers in the Illawarra and that if you breach that order you can go to gaol.

35. If you are not of good behaviour, you will breach your recognizance and you can go back to gaol. You will be on a fairly tight leash particularly with regard to use of internet and social media but that is the orders that will be placed on you and they may continue for some time. You must keep in contact with your parole officer, that is a condition, any addresses and things of that nature have to be referred to them. If you don’t accept the supervision that is being offered again you could go back to gaol.

36. AUDIO VISUAL LINK CONCLUDED AT 3PM

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Decision last updated: 14 April 2023