R v Saville

[2018] NSWDC 448

District Court

New South Wales

Medium Neutral Citation:	R v Saville [2018] NSWDC 448
Hearing dates:	28 June 2018, 23 August 2018
Date of orders:	28 September 2018
Decision date:	28 September 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	See [110]-[112]
Catchwords:	CRIME – SENTENCE – guilty plea – using carriage service to groom – possess child abuse material
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code 1995 (Cth)
Cases Cited:	R v Asplund [2010] NSWCCA 316 R v Henry (1999) 46 NSWLR 346 R v Valentini (1989) 46 A Crim R 23
Category:	Sentence
Parties:	Regina (Crown) Darren Saville (Offender)
Representation:	Solicitors: CDPP (Crown) Metro Lawyers (Offender)
File Number(s):	2016/62618
Publication restriction:	None

REMARKS ON SENTENCE

INTRODUCTION

1. The Offender appears before the Court for sentencing after pleading guilty to the charges on the Commonwealth Crown Sentence Summary.

charges for sentence

2. The first charge relates to a period between 4 January 2016 and about 25 February 2016. The charge is that the offender, in contravention of s 474.27(1) of the Criminal Code1995 (Cth), used a carriage service to groom a person under the age of 16 for sexual activity. That carries a maximum penalty of 12 years’ imprisonment.

3. The second charge to which the offender has pleaded guilty is a State offence, namely possess child abuse material in contravention of s 91H(2) of the Crimes Act 1900 which carries a maximum penalty of ten years’ imprisonment.

GUIDEPOSTS

4. The maximum penalty represents the respective legislatures’ assessment of the seriousness of the offending. In the sentencing discretion, the Court must always arrive at an outcome that is just in the circumstances. I have had regard to the maximum sentence in determining the appropriate sentence in respect of this particular matter.

procedural history

5. The offending was committed on between 4 January 2016 and 25 February 2016.

6. The Offender was arrested and charged on 26 February 2016.

7. On 14 March 2017, the Offender was committed for sentence in the District Court.

8. The Offender pleaded guilty to the charges on 14 March 2017. This was at a relatively early stage of these proceedings which will be taken into account in assessing the utilitarian value of the guilty plea.

9. Apart from an initial period in custody, which spanned a weekend, the offender has been on bail since the offending.

the evidence on sentence

10. The Crown relied upon the Crown Sentence Summary and the documents attached thereto which included carefully drafted written submissions on behalf of the Crown, together with a schedule of cases said to be similar to the present case (Exhibit A).

11. The Offender relied upon the following material:

1. the Offender’s Bundle (Exhibit 1);

2. psychologist report of Dr Ian Nisbet dated 1 September 2017 (Exhibit 2);

3. psychiatrist report of Dr Tanveer Ahmed dated 20 July 2018 (Exhibit 3);

4. two sets of the Offender’s Submissions (MFI 1 and MFI 2).

the agreed facts

12. The Statement of Agreed Facts provides as follows:

13. Between 4 January 2016 and 26 January 2016, Darren SAVILLE (“the Offender”) engaged in text conversations with an online identity with username ‘BP lovelynpink’ over KIK messenger. It is alleged that the Offender was participating in these conversations with another unidentified person, and conversing with BP lovelynpink engaging in sexualised conversations.

14. ‘BP lovelynpink’ identifies herself during the course of the conversations as a 14 year old female. The profile picture used for this account features a female child aged approximately between twelve and fourteen years of age.

15. During the online conversations, the Offender utilises a user name of ‘dazza0069u’, and provided his mobile phone number as being 0415 545 881. This number has been identified as belonging to the Offender, and the Offender’s photograph features on this account. The Offender was 38 years of age at the time of the conversations.

16. On 4 January 2016, the online conversation commenced, and was as follows:

Offender:      Hi gorgeous

BP lovelynpink:   Hi

Offender:      How old are you

Can you send me pic in ur school dress

BP lovelynpink:   I’m 14

I don’t have 1 on here

See I’m to young

Offender:      That’s cool with us if it’s cool with you

BP lovelynpink:   It is ??

Offender:      Show me ur titties please

BP lovelynpink:   After mum goes to bed

So you still want me ??

Offender:      Yes we want u even more now sexy

BP lovelynpink:   Oh

Even though I’m only 14

Offender:      If it’s ok with you

Let us teach you how to be a naughty gal

BP lovelynpink:   But he won’t fit in me

Offender:      Yeh he will hun just have to finger u a bit first

Don’t worry he won’t hurt you

BP lovelynpink:   I’m not on a pill yet

Is he clean

Offender:      Condoms babe yes he’s clean

BP lovelynpink:   Do you want him to use a condom?

Offender:   I want you to tie me up and make me watch him licking ur pussy

BP lovelynpink:   Oh ok

Where do u live?

Offender:   It feels heaps better without a condom on if u let him Fuck you he would cum on ur titties

Lakemba

Have you gone babe

BP lovelynpink:   No still here

How big is it?

Offender:      Is ur mum gone to bed yet

BP lovelynpink:   Not yet

Offender:      Wot would you do to Darren’s cock

BP lovelynpink:   Don’t you want me to suck it with you

Offender:   Can he Fuck you without a condom and cum in ur mouth

BP lovelynpink:   I’m a bit shy

Offender:   Does b shy around us babe

BP lovelynpink:   I might not even undress

Do you live by yourselves?

Offender:      That’s teasing him yes we live by ourselves

BP lovelynpink:   Could you give me a drink first

Offender:      Yeah do u like scotch

BP lovelynpink:   I don’t know never had a drink before

Offender:      Do u smoke

BP lovelynpink:   No

Offender:      Cool

Tell me u want him to Fuck you

BP lovelynpink:   I don’t think he will fit

Offender:      Yeah he will I’ll help u trust me u will love it

BP lovelynpink:   How will you help

Offender:      By fingering u and making u wet

BP lovelynpink:   Oh ok

Offender:   Do you have credit on ur phone txt us please no data credit left my number is 041554588

Please txt us babe

BP lovelynpink:   That’s only 9 numbers

Offender:      0415545881

17. The conversation ceased, and the Offender attempted to contact BP lovelynpink on 12 January 2016, saying “Hi sexy how r you”. A reply was sent on 13 January 2016, and the conversation continued:

BP lovelynpink:   Good & u

Offender:      Horny as babe

BP lovelynpink:   Oh ok

Offender:      Wot r u wearing

BP lovelynpink:   What u up to anyway Darren p

Shorts and a singlet

Offender:      Nothing

BP lovelynpink:   Ok

Offender:      Can I c ur pussy now please

BP lovelynpink:   I’m just about to go to the shops

So can’t come over right now

Offender:      U never gonna give me that pic

BP lovelynpink:   Oh a pic

I thought u meant come over

Offender:      Yes please

Pic

BP lovelynpink:   Oh ok when I come back from shops I’ll send you 1

18. The conversation ceased, and conversation again continued on 18 January 2016:

BP lovelynpink:   Hi

Offender:      Hay sexy wotcha upto

BP lovelynpink:   Just hanging with a neighbour watching tv

Offender:      Damb I was hoping you were feeling naughty

BP lovelynpink:   Oh to come over?

Offender:      If you want to

Or chat dirty and swap pics

BP lovelynpink:   Not sure I should bring her though

Offender:      No

BP lovelynpink:   Can you wait

Offender:      Yes

Can we chat dirty and swap pics now

BP lovelynpink:   Ok maybe about an hour & I can come

Bit hard with her here

Offender:   Let’s meet somewhere after dark and u can suck my cock and c wot happens from there

BP lovelynpink:   Ok

But where

Offender:      Parramatta is that far from you

BP lovelynpink:   No not far

Offender:      It’s a fair way for me but I don’t care

Can you tell her ur going to the toilet and take a pic of your pussy please

BP lovelynpink:   I can go to you

Offender:      Pic please sexy

???

19. The conversation continued early the next morning, at 2:56am:

Offender:      Hi sexy how r you

Why aren’t you talking to me anymore hun

???

20. Online conversation between the parties continued on 26 January 2016 with the Offender again suggesting that the pair meet, and referring to BP lovelynpink as “sexy”, “gorgeous” and “babe”. The Offender again requested a picture of the recipient’s breasts. The messages ceased when the police seized the phone. The phone was subsequently forensically examined and the above conversations located. The Offender did not seek the return of his phone at any time.

21. On 26 February 2016, police attended 5/54 Bowden Street, Guildford. The Offender and his de-facto partner were present at the address on this occasion, and a second phone (a black ZTE mobile phone) belonging to the Offender was seized. On arrest the Offender stated to police “It was sent to me on KIK Messenger”.

22. KIK Messenger was installed on the mobile phone that was seized, and the KIK messenger profile of this phone was in the profile name of the Offender, with user name ‘dazz0069u’.

23. Present on the mobile phone were further KIK messenger correspondence between the Offender and BP lovelynpink having occurred between 2 February 2016 (after the seizure of the first mobile phone) up to 25 February 2016.

24. On 18 February 2016, the Offender suggested “Skip it and meet me”, “I moved heaps closer to u” and referred to the recipient as “hun”, “sexy”, “spunky” and “sweety”.

25. On 20 February 2016, the Offender sent eleven messages to the recipient, all with no response, suggesting “Talk to me plz sexy” and “Talk to me let’s meet today gorgeous”.

26. On 21 February 2016 the Offender wrote to the recipient “Do u still wanna meet up”, and stated he was at St Marys for the next twelve weeks, that his girlfriend wanted to meet the recipient as well, but only after the Offender and BP lovelynpink had met. He again requested a picture of the recipient’s breasts. He stated “Can’t wait to meet u ur profile pic looks hot”.

27. Further conversation between the Offender and BP lovelynpink occurred on this date as follows:

Offender:      Do you still wanna meet

BP lovelynpink:   Yes

Offender:      Cool

BP lovelynpink:   I spose u still want to have sex with a young girl ?

Offender:      Wot that ment to mean

BP lovelynpink:   You still want to have sex with me

Offender:      Do I need to answer that

Haha

POSSESS CHILD ABUSE MATERIAL

28. The Offender produced a black HTC mobile phone to police when attending the police station on an unrelated matter on 25 January 2016. On examination, several images in the mobile phones gallery application were observed which were identified as being child abuse material. The phone was seized for further analysis.

29. An analysis of the contents of the black HTC mobile phone revealed nineteen (19) images that have been categorised as child abuse material.

30. As child abuse material was located, each image or video was classified into categories as per the Australian National Victim Image Library (ANVIL) scheme, also known as the Child Exploitation Tracking System (CETS) scale. The ANVIL schema makes reference to the activity depicted in the child abuse material as follows:

1 -   Nudity or sexually suggestive posing with no sexual activity;

2 -   Non-penetrative sexual activity between children, or solo masturbation by a child;

3 -    Non-penetrative sexual activity between adult(s) and child(ren);

4 -   Penetrative sexual activity between children or adult(s) and child(ren);

5 -   Sadism, humiliation or bestiality; and

6 -   Animated or virtual depictions of children engaged in sexual poses or activity.

31. The 19 images located on the device ranged from category 1 to category 4 and are summarised below:

1. Category 1 – Erotic posing with no sexual activity: 17;

2. Category 2 - Sexual activity between children, or solo masturbation by a chid: 1;

3. Category 3 - Non-penetrative sexual activity between adult(s) and child(ren): 0;

4. Category 4 - Penetrative sexual activity between adult(s) and child(ren): 1;

5. Category 5 – Sadism, humiliation or bestiality: 0;

6. Total: 19.

32. The files appear to have been transmitted from another online identity ‘lustnude Picsgirlsonly barebottom’ in the course of an online conversation. The conversation between ‘dazza0069u’ and ‘lustnude Picsgirlsonly barebottom’ occurred over two and a half hours on 22 December 2015. A total of fifty-five (55) files were transmitted from ‘lustnude’ to the Offender, and of these 19 were categorised as child abuse material. The Offender transmitted image files in return – none of which were categorised as child abuse material.

33. Following the transmission of many of the files, ‘lustnude’ asked “Young pussy u like?” and the Offender responded “Yes please” and “How young babe”. Lustnude sent an additional file which was the Category 2 image represented in the table in paragraph 18, and stated “Like these”, and the Offender responded “I do”.

34. A significant number of images continued to be transmitted from ‘lustnude’ to the Offender, and the Offender continued to seek more after the transmissions were ceased by ‘lustnude’.

35. The Offender was arrested on 26 February 2016 and agreed to participate in a record of interview, in which he refused to comment on the allegations.

OBJECTIVE FACTORS

Generally

36. In imposing a sentence it is necessary for the Court to make an assessment of the objective seriousness of the offending. That is a predominant factor relevant to the sentencing process. It is not necessary, however, to articulate a determination by placing the offending along a hypothetical range, although this is commonly done. It remains the task of the Court to undertake an evaluative assessment of the objective seriousness of the offence.

37. The starting point are the legislative guideposts to which I have already referred, being 12 years in respect of count 1 and 10 years in respect of count 2.

38. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality.

39. The Crown submitted that the Commonwealth offending falls in the mid-range of objective seriousness, whilst the State offending, that is possessing child abuse material, falls in the low to mid-range. That assessment was conceded by the legal representative of the Offender. I also agree with that assessment of the objective seriousness of the offending; that is the offending related to using a carriage service to groom a person under the age of 16 years for sexual activity falls within the mid-range of offending of that type. It is clear from the exchange that took place between the offender and the victim that he was eager to meet with her and had discussed plans to do so.

40. In relation to the State matter, I find that the offending falls at the low end of the mid-range of objective seriousness, given the categorisation of the photographs and images previously referred to by reference to the scale.

41. My determination of the objective seriousness has taken into account the useful submissions made by the Crown and, in particular, the reference to the decision of the New South Wales Court of Criminal Appeal in R v Asplund [2010] NSWCCA 316 which at [48] noted a number of factors with respect to determining objective seriousness for grooming offences. In that decision, the Court referred to some seven factors relevant to determining objective seriousness. Without reading them all, I note that factors (a), (b) and (c) are particularly relevant to the present offending.

42. Factor (a) is a reference to the conduct of the offender in that case as bombarding the victim with:

“indecent suggestion, graphic sexual images, solicit from her the same, all the while remaining anonymous from the authorities, hidden from those who love and have the child’s best interests at heart

43. Factor (b) is referred to in Asplund as comprising the following consideration:

“the criminality in this conduct was ‘the interference with the child’s privacy, her right to a healthy psycho-sexual development, by requiring her to feed into and gratify his sexual titillation and fantasises with a long-term view of having her submit to sexual activity with him’.”

44. Factor (c) referred to by the Court in Asplund is also apparent, that is that there was reference to there being abuse of power and the formulation of a destructive relationship, that is between the offender in that case and the victim in that case. The same would apply in the present circumstances.

45. The Court may also have regard to any aggravating or mitigating circumstances, particular to the Offender and the offending. The former to be proven beyond reasonable doubt and the latter on the balance of probabilities.

46. There are no aggravating factors which exist in this offending for the purpose of sentencing.

47. The only mitigating factors which arise includes the remorse shown by the Offender and his plea of guilty.

THE SUBJECTIVE CASE

48. Next, the Court is to consider the subjective circumstances of the Offender in order to ensure that the sentence imposed takes into account any particular subjective features. The Offender is 41 years of age. He had a largely unremarkable upbringing, save for the traumatic event of his father being killed in a motor vehicle accident when he was just ten years of age. The Offender reported leaving school at the end of Year 10 and that he was bullied by other students, causing him to become socially withdrawn.

49. His employment history is inconsistent. Most jobs have been casual. The longest period of continual employment that the Offender has recorded was between 2008 and 2012, where the Offender was an events manager at a theme park in Sydney.

50. The Offender moved to Lismore not long after finishing high school where he met a Ms King. The Offender and Ms King resided in Lismore and Glen Innes before moving to Sydney in 2006 to be closer to the Offender’s grandmother. The Offender and Ms King have three children, a male aged 16, a female aged 11 and a third child being nine years of age. Again, somewhat tragically, another son was born to the relationship but died shortly after being born. All three surviving children are in foster care in Sydney and the Offender does have face-to-face visits with them referred to as occurring in the past every second month. The Offender also has another son who is six years of age who lives in Sydney but with whom he has no ongoing contact.

51. The whereabouts of the aforementioned Ms King are unknown and she has been notified to police by the offender as a missing person.

52. The Offender described to the author of the Pre-Sentence Report longstanding issues with substance abuse, namely cannabis and methylamphetamine. The Offender commenced smoking cannabis at 20 years of age before commencing to use methylamphetamine in 2004 following the tragic neonatal death of his son. The Offender advised that by 2012 his use of that drug had escalated to a daily habit costing $600 per day. The Offender and Ms King were both using ice and it appears, although it remains a little unclear, that this led to their children being removed from their care.

53. The author of the Pre-Sentence Report noted that it was difficult to gauge the offender’s attitude towards the offending, as he maintained the position of having a limited recollection of details surrounding the offence due to his abuse of illicit drugs. The author of the report did note, however, that despite claims of poor memory the Offender appeared able to describe in detail events leading up to the offending, perceived contexts of the communication exchange and subsequent contact with the police.

54. The Offender was challenged in the interview with Community Corrections as to his attitude and beliefs regarding inappropriate relationships with children, to which he remarked, “Even you reading through the agreed facts makes me feel sick to my stomach”.

55. The Court was also provided with a statutory declaration made by the Offender on or about 9 February 2018. It was the subject of amendment after some issue arose as to whether one of the statements made by the offender gave rise to its reversal of plea. The statutory declaration confirmed that at the time of its completion he lived at what is referred to as his family home with his mother 30 kilometres from Grafton, with the closest shops being about half an hour drive.

48. He provides a history of his childhood consistent with the facts previously described. It refers to the death of his stepfather at his mother’s house in South Grafton on 7 December 2015 following which, understandably, his mother became severely depressed. The Offender stated that after the loss of his stepfather he smoked ice even more than before throughout 2016 to the point where he had difficulties with his memory.

49. In an illustration of remorse, he stated:

“I regret chatting to a 14‑year‑old child on KIK Messenger when I was under the influence of ice and other heavy drugs...I accept full responsibility for my actions. I am deeply ashamed, embarrassed and disappointed in myself now for what happened in 2016”.

58. He confirmed in his statutory declaration that he reported his ex‑partner, Ms King, as a missing person on 11 January 2017. She was also a heavy user of the drug referred to as ice and at the time of signing the statutory declaration the offender had not seen her since January 2017.

59. In paragraph 18 of the statutory declaration it was stated by the offender that on 25 January 2017 he completely discontinued using ice and went cold turkey. He increased the smoking of legal tobacco and has stated that he has not touched ice since 25 January 2017.

60. When this matter was first before me there was a request by the legal representative of the offender to stand the matter over for a period of time in order to obtain objective independent evidence of his abstinence consistent with the statement contained in the statutory declaration. However, when the matter returned before me on the next occasion, being 23 August 2018, no evidence of that type was produced. It remains the case that other than the say so of the offender and indeed his mother there is no independent evidence of abstinence.

61. In his statutory declaration, the offender confirmed that he moved in with his mother on 26 January 2017 in her house at South Grafton where he was living in the double garage. He stated that his mother made it clear that if she found any drugs in the house or if she saw him take any sort of drugs he would be kicked out and homeless. He refers to the country life as being completely opposite to city life. He stated, “Ice is not readily accessible and I would not know where to look for ice”.

62. His statutory declaration goes on to refer to the circumstances in which he lives in South Grafton, being removed from access to technology and the like, although I do recall there was some perceived inconsistency as to whether or not he retained the use of a mobile telephone and my recollection of the evidence is that it was his mother’s telephone which was referred to.

63. The report of Dr Ahmed, psychiatrist, is dated 20 July 2018 and followed an interview with the offender that same day. Earlier correspondence had been received from the offender’s legal representative. In the course of the interview, it is said that the offender stated:

“He said from his recollection that he regrets the conversations with the minor and regrets opening child abuse material which someone else had sent to him. He does not recall exactly what he viewed as he was under the influence of heavy drugs not limited to methylamphetamine, cocaine, ecstasy and marijuana”.

64. The psychiatrist undertook a mental state examination of the Offender in which he referred, amongst other things, to the fact that, in his opinion, the Offender is not a man of high intelligence for his age. It was apparent, however, during the course of the interview, that the Offender indicated that he did not display any mental health issues. The psychiatrist further expressed the opinion that there was no history suggestive of any sexual relation disorder and that,

“It is highly likely that intoxication with methamphetamine related to poor impulse control, poor judgment and an impaired recognition of potential harm in him interacting with an underage girl. He presents clear remorse to me.”

65. The psychiatrist went on to express the view that the Offender was at low risk of reoffending in relation to such matters in the future although he suggested that the Offender would benefit from continuous ongoing sex offenders’ counselling and treatment.

66. The report by Dr Nisbet, psychologist, is more detailed in its terms but also more aged. It is dated 1 September 2017 and followed consultations with the offender in May, June and July of that year. He provides a personal history consistent with those matters already referred to. Despite the contents of the statement of agreed facts being just that, namely agreed between the parties, when spoken to by Dr Nisbet the offender:

“Specifically denied responding in the matter described in paragraphs 21 and 22 of the agreed facts, that is in which he is said to have encouraged a further connection between the online identity.”

67. Nevertheless he has since agreed to those facts and obviously pleaded guilty in respect of the two counts on the Crown Sentence Summary. What the psychologist’s report demonstrates, however, is either a lack of awareness or a lack of true contrition on the part of the offender in relation to the totality of the offending.

68. The assessment by the psychologist was there was no evidence of any psychiatric disturbance, thought disorder, delusions or perceptual disturbances such as visual or auditory hallucinations. He was assessed as being in the severe range for symptoms of depression. However, I prefer the opinion of the psychiatrist over the opinion as to psychiatric matters expressed by the psychologist.

69. I have also been provided with a letter from a Mr Watts, being a senior psychologist with the Drug and Alcohol Services, dated 22 June 2018, confirming that the Offender had contacted the Drug and Alcohol Counselling Service at Grafton Community Health between August 2017 and November 2017. It states that he participated in an assessment on 12 September 2017 with another counsellor and subsequently attended a further three appointments before being discharged from the service on 21 November 2017. It was submitted on behalf of the Crown that the Court should not afford any weight to that document. I tend to agree as the document itself and the contents of the letter fail to identify the nature of any assessment or counselling provided to or undertaken by the Offender.

70. I also have a letter from a Mr Gordon, being an employment adviser, which is undated. It referred to the fact that the Offender had been undertaking paid employment the last six months, working on a part-time basis. Mr Gordon expressed the view that the Offender, “Would become a productive member of this community as it has provided him with the stability he has needed to move forwards in life”. The basis upon which Mr Gordon has any qualification to express that view is not exposed in the report and I place no weight upon it.

71. I also have been provided with a letter from Ms Knaap in relation to work which the Offender has done for her company, North Coast Sandstone, for the last ten months on a part-time basis. The letter is undated so it is impossible to determine the period to which she refers. She described the Offender in fairly pleasant terms as one might expect in a reference provided to a court for the purposes of determining an appropriate sentence.

72. Remorse

73. The question of remorse obviously arises for consideration in this case, particularly given the statement made to the psychologist in which the Offender refuted the allegations contained in part of the statement of agreed facts. Evidence of remorse must be assessed in context. Remorse is but one feature of post-offence conduct upon which an offender may seek to rely as a matter which has the potential to mitigate penalty.

74. Ordinary human experience would suggest that it is only natural that a person who has committed some misdeed would wish to make the most favourable impression possible in seeking to make amends for it. In this particular case, there is evidence of remorse by reason of the guilty plea at an early stage, together with the expressions of such in the statutory declaration signed by the Offender.

75. In addition, the Offender also gave some short evidence in which he accepted responsibility for his offending or at least accepted that the offending had taken place. When questions were asked in chief about his knowledge of the age of the victim with whom he was communicating by Messenger, the witness stated, “No, I don’t recall her saying that she was under 16”. This suggests a lack of acknowledgement on the part of the offender as to the offending. The Court pointed out to the offender that the victim in fact stated that she was just 14 years of age and asked the offender whether he recalled that fact to which he replied, “No”.

76. The Court was also assisted by evidence provided by the mother of the offender, Mrs Saville. She gave evidence on 28 June 2018. She confirmed her residence at South Grafton and that the offender had resided with her since 25 January 2017. She was, however, unaware of his drug history prior to that time and not aware of the fact that he consumed ice, speed and/or other drugs. She told the Court that her son called her on 24 January and said, ““Mum, I need help”. So I booked him on the train”, and it was at that time that he told her of his drug habit. Prior to that, Mrs Saville was unaware of the residential location of her son as they had a relationship which she described as being strained. They would speak only once every couple of years and the reason given for there being a strained relationship was that the Offender did not get along with Mrs Saville’s de facto husband.

77. She was asked about changes in her son since he commenced living with her and she referred to what is stated as being a, “total change”. When asked to describe the change, she stated, “Well he - he looked sickly and he hasn’t had any drugs at my house. That was one of the rules, you don’t come up if you’re bringing drugs”.

78. Mrs Saville also described how she has driven her son to consultations with Mr Nisbet, the psychologist, on a number of occasions, as well as to drug and alcohol counselling at the Grafton Hospital. She also has assisted in his reporting to the police three times a week on days which coincided with her work days. Mrs Saville impressed as a reliable and honest witness who had been largely in the dark as to her son’s lifestyle and particularly his offending in the relevant period.

79. History of Addiction

80. The history of addiction, of course, is another matter which arises in this case. It must be given some weight in the exercise of the Court’s discretion both as to sentence but also in determining the extent to which the Offender would benefit from serving all or part of the sentence in the community.

81. The evidence established that for a lengthy period of time the offender has had a dependency on methylamphetamine. In his psychiatric report, Dr Ahmed diagnosed the offender with methylamphetamine dependence in remission. Whilst relevant, drug addiction, of course, is not a mitigating factor and I bear in mind the comments in the matter of R v Valentini (1989) 46 A Crim R 23 at 25.

82. I am also mindful of the observations made by the Court of Criminal Appeal in the matter of R v Henry (1999) 46 NSWLR 346, it being a guideline judgment on a topic unrelated to this offending in which views were expressed as to the relevance of an offender’s drug addiction in assessing the overall object criminality of the offence and, of course, as being a relevant subjective circumstance. I note in particular the comments made by Spigelman CJ at [206] of that judgment. I also observe the comments made by Spigelman CJ at [197] where he stated, “Drug addicts who commit crime should not be added to the list of victims. Their degree of moral culpability will vary just as it varies for individuals who are not affected by addiction”.

83. Persons who choose a course of addiction must be treated as choosing its consequences. Not all persons who suffer from drug addiction commit crime and to do so involves an element of choice.

84. The Court has also had regard to the comments of Wood J in that same matter at [273] in considering the connection between addiction to drugs and sentencing offenders.

85. Of course, the use of drugs at the time of offending is relevant for other reasons. It may impact upon the risk of recidivism, the prospects of rehabilitation and other factors bearing upon the future lifestyle of the offender. While it can be said that the objective of rehabilitation needs to be taken into account along with the other objectives of retribution and deterrence, it is, however, but one aspect of sentencing. Offenders who suffer drug addiction should not be placed into a special category for sentencing.

86. Rehabilitation

87. Rehabilitation therefore arises for consideration also in this case. Having given careful consideration to the evidence which informs the matter, I find that the prospects of successful rehabilitation are moderate. That finding reflects the opinion of both the psychiatrist, Dr Ahmed, and the psychologist, Dr Nisbet, who both express the view that successful rehabilitation will occur with abstinence from illicit substances.

88. Re-offending

89. Consistent with the finding concerning rehabilitation, I find the likelihood of reoffending is also moderate. I have had regard to the opinion expressed by the author of the Pre-Sentence Report as well as to all of the evidence concerning this matter.

approach to sentencing

General Principles

90. In approaching a sentence, of course, one must be mindful of the purposes for which a court may impose a sentence. Both the Commonwealth Act and the New South Wales State Act make reference to a number of specific purposes. In s3A of the State Act the purposes for sentencing are referred to, first, as punishment. There is no doubt that the offending involved in this matter requires punishment. The offender was driven to contact and attempt to meet with an underage child in order for sexual gratification which is a matter that ought to attract a sentence which reflects the need for punishment.

91. Deterrence is also another purpose for which a sentence may be imposed. General deterrence, that is to members of the community, and also specific deterrence, that is to the individual, are relevant. Given the findings concerning the risk of re-offending and the hopeful prospects of rehabilitation, perhaps the need for specific deterrence in this particular case is lessened, however, there is no doubt the Court must denounce the offending of this type and impose a sentence which has the effect of deterring generally members of the community from such behaviour.

92. The third purpose for sentencing is protection, that is to protect the community from the Offender. There is no doubt, given his behaviour, that that is a relevant consideration in this case.

93. The final matters for which the Court may impose a sentence are identified under the State Act as being rehabilitation, accountability, denunciation and recognition. All of those factors apply in this case.

PROPORTIONALITY

94. Proportionality always looms large in cases of sentencing. It is essential to ensure that the punishment fits the crime. A sentence should not be increased beyond what is proportionate to the crime in order to merely extend the period of protection of society from the risk of recidivism on the part of the offender, that find statutory expression within s 3A. The sentence should neither exceed nor be less than the gravity of the crime having regards to the objective circumstances. There must be reasonable proportionality between the sentence and the circumstances of the crime. The relevant importance of the objective factors and the subjective features will vary in each case. Due weight must, of course, be given to those objective circumstances.

IMPRISONMENT

95. Before imposing a sentence of imprisonment, I must be satisfied, having considered all possible alternatives, that no sentence, including non‑custodial sentences, other than imprisonment is appropriate. In this case, the Crown contends that that threshold has been met. In considering this matter, legal representative for the offender referred the Court to the offender’s abstinence from illicit drug use and his pro-social connections within the Grafton area. Notwithstanding those matters, I consider that a sentence which includes a period of imprisonment, being fulltime custody, is, in the circumstances, appropriate. I make that finding in accordance with s 5 of the State Act and s 17A of the Commonwealth Act.

96. Also, in coming to a sentence in this matter, I have had regard to the other cases referred to by the Crown in the submissions and in the document attached to the submissions and, of course, other cases can only provide the Court a very broad guide as to how to approach the sentencing exercise as the sentence imposed in any individual case must reflect the circumstances of that particular case.

97. In determining the matter, I am mindful of the provisions of s 16A of the Commonwealth Crimes Act in order to ensure that the sentence is appropriate in terms of severity and, in that regard, I have had consideration to s 16A(2) and the factors referred to thereunder in coming to the sentence in respect of this matter.

98. Accordingly, I find that the objective seriousness of this offending requires a sentence by way of imprisonment.

99. I have, of course, had regard to the guilty plea entered by the offender at an early stage and, in that regard, I have reduced the sentence by 20% for the Commonwealth offence and 25% for the State offence and I find that such a reduction in sentence will not result in a lesser penalty which is unreasonably disproportionate to the nature and the circumstances to the offences.

special circumstances – s44

100. It is agreed that there are special circumstances here so as to justify a departure from the statutory ratio for parole. Those factors include that it is the offender’s first time in custody and the need for rehabilitation. Accordingly, I find that special circumstances do exist.

totality, concurrency and accumulation

101. In considering the principle of totality, the Court must, of course, have regard to sentencing options of concurrency and accumulation. The sentence which I have derived in this case achieves that ultimate outcome to ensure that the sentence reflects the total criminality of the offending, the sentence is just having regard to the sentencing principles and, in my view, not crushing.

the sentence

102. Given that the offender has spent three days in custody already, the sentence will commence from 25 September 2018. As mentioned, a discount of the Commonwealth charge of 20% and a discount on the State charge of 25% will be applied to reflect the value of the early guilty plea.

103. Although I have declined to approach this matter by way of an aggregate sentence, I do intend to order some degree of concurrency in terms of its imposition.

104. In respect of the first charge, namely use a carriage service to groom a person under the age of 16 for sexual activity, I impose a head sentence of 30 months which, after a discount of 20%, becomes 24 months. I order that the offender be released from prison after serving a period of 16 months upon entering into a recognisance in the sum of $100 to be of good behaviour for a period of 12 months. There is no need for the recognisance sum to be deposited.

105. In respect of the second charge, namely possess child abuse material, I impose a head sentence of 28 months which, after a discount of 25%, is 21 months and I impose a non-parole period, adjusting the statutory ratio, of 14 months.

106. I will commence the Commonwealth sentence on 25 September 2018, as indicated, with the offender being entitled to release upon recognisance on 24 January 2020 and the head sentence will therefore expire on 24 September 2020.

102. The sentence in respect of the State matter will commence on 25 December 2018 with the non-parole period expiring 24 February 2020. The head sentence will therefore expire on 24 September 2020.

pronouncement of conviction and sentence

108. Would the Offender please stand?

109. You are convicted of the 2 offences set out on the Crown Sentence Summary.

110. In respect of the first charge, namely use carriage service to groom person under 16 years of age for sexual activity, I impose a head sentence of 30 months, which after a discount of 20% becomes 24 months. I impose a non-recognisance release period of 16 months.

111. In respect of the second charge, namely possess child abuse material, I impose a head sentence of 28 months, which after a discount of 25% becomes 21 months. I impose a non-parole period of 14 months.

112. Therefore, the total sentence you have received is a period of imprisonment of 24 months with a non-parole period of 17 months.

113. I direct that a copy of the reports of Dr Ahmed and Dr Nisbet accompany the offender’s warrant of commitment.

I certify that these are the reasons for the Judgment

of his Honour Judge D Wilson SC

Associate

Last Revised 13 February 2019

Decision last updated: 13 February 2019