R v Simonetti
[2022] ACTSC 221
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Simonetti |
Citation: | [2022] ACTSC 221 |
Hearing Date: | 26 August 2022 |
DecisionDate: | 26 August 2022 |
Before: | Elkaim J |
Decision: | (i) CC21/11417: Using a carriage service to cause child pornography material to be transmitted to himself to transmit and to publish child pornography: the offender is sentenced to imprisonment for 16 months and 14 days (reduced from 22 months) to commence today and end on 8 January 2024. (ii) CC21/10896: Using a carriage service to make a threat to kill: the offender is sentenced to imprisonment for 11 months and 7 days (reduced from 15 months) to commence on 2 May 2023 and end on 8 April 2024. (iii) CC21/10894: Using a carriage service to menace: the offender is sentenced to 9 months imprisonment (reduced from 12 months) to commence on 9 October 2023 and end on 8 July 2024. (iv) CC21/11715: Using a carriage service to menace: the offender is sentenced to 9 months imprisonment (reduced from 12 months) to commence on 8 January 2024 and end on 7 October 2024. (v) The total period of imprisonment is two years, one month and 12 days. (vi) The above period of imprisonment is to be served by way of an Intensive Correction Order subject to core conditions. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth offences – using a carriage service to cause child pornography to be transmitted to offender, to transmit and to publish child pornography material – using a carriage service to make a threat to kill – using a carriage service to menace – totality – where offender has previously served term of imprisonment for separate but similar offences occurring at a similar time period as current offending – where the offender was not charged for current offending until after serving previous term of imprisonment – rehabilitation – term of imprisonment imposed to be served by way of Intensive Correction Order |
Legislation Cited: | Criminal Code Act 1995 (ACT) ss 474.15, 474.17, 474.19 |
Cases Cited: | R v Simonetti [2018] ACTSC 31 |
Parties: | The Queen ( Crown) Oliver James Simonetti ( Offender) |
Representation: | Counsel J Nottle ( Crown) K Ginges ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Hugo Law Group ( Offender) | |
File Number(s): | SCC 109 of 2022 |
Elkaim J
On 28 April 2022 the offender pleaded guilty to four offences in the Magistrates Court:
(i)CC21/11417: Using a carriage service to cause child pornography material to be transmitted to himself to transmit and to publish child pornography material contrary to s 474.19(1)(a) of the Criminal Code Act 1995 (Cth) (Criminal Code). The maximum penalty is 15 years’ imprisonment.
(ii)CC21/10896: Using a carriage service to make a threat to kill contrary to s 474.15(1) of the Criminal Code. The maximum penalty is 10 years’ imprisonment.
(iii)CC21/10894: Using a carriage service to menace contrary to s 474.17(1) of the Criminal Code. The maximum penalty is three years’ imprisonment.
(iv)CC21/11715: Using a carriage service to menace contrary to s 474.17(1) of the Criminal Code. The maximum penalty is three years’ imprisonment.
The Crown accepts that the pleas of guilty were at an early stage and the offender is entitled to a discount for their utilitarian value.
The facts of the offending are set out in the Crown Tender Bundle (Exhibit A). The following is a summary.
Charge (i): In 2016 the offender, then aged 18, pretending to be Olivia, aged 14, chatted over Instagram with a 12-year-old boy, CW. He requested pornographic pictures from CW. About seven images were sent. When CW tried to stop the contact, the offender sent the pictures to some of CW’s friends and published them on Instagram accounts. As a result other children from CW’s school saw the images.
The offender agreed to take down the images but only on condition that CW provided videos of a pornographic nature. CW complied. The offender sent two of the videos to CW’s girlfriend.
Charge (ii) (referred to as Charge 4 in the statement of facts): the offender conducted a Skype call with a friend of the boy, SPM. He threatened to kill the friend and her family if she did not follow his instructions. The instructions were to the effect that she was to tell CW that he was going to kill his girlfriend. If she did not do so, then she and her family would be killed. SPM terminated the call.
About a month later the offender sent SPM two videos on Instagram. They showed males dancing, wearing underwear. SPM recognised CW in one of the videos. The offender told SPM that CW had 2.5 hours to live and that the videos would be made public.
Charge (iii) (referred to as Charge 5 in the statement of facts): in June 2016 the offender contacted, over the Internet, a child called HJ. He threatened HJ to the effect that if CW did not send a message to the offender promptly, then the offender would publish a video on his Instagram. He sent two videos of CW to HJ. She did not watch them because she had received a warning about their content.
HJ asked two friends of CW to contact the offender through her Instagram account. They did so and asked the offender to cease his conduct.
Charge (iv) (referred to as Charge 6 in the statement of facts): the offender threatened another girl, EM, that if she did not arrange for CW to communicate with him that he, the offender would come to EM’s home and tie up her mother. She showed the messages to her mother. A report was made to the police.
On 9 November 2016 the police conducted a search of the offender’s home and seized an iPhone. Four images and 11 videos constituting child abuse material were found on the phone. The material is very pornographic and includes a child performing perverted actions upon himself.
I have previously dealt with the offender (R v Simonetti [2018] ACTSC 31). His personal history can be seen in the reasons. In 2018, there were five offences of a not dissimilar nature. I sentenced him to a total of two years and six months imprisonment, but to be released on a Recognisance Release Order after nine months. The order expired in November 2020.
All of the current offences are Commonwealth offences. I repeat the observations I made about imposing sentences in Commonwealth matters in my earlier reasons.
It is important to note that the current offences were not committed after the offender was sentenced in 2018. In other words it cannot be said that he has returned to offending notwithstanding his previous sentences. Nevertheless, the offending being dealt with today shows that the subject of the 2018 sentencing was not isolated in nature.
Another feature is that the current offences were all committed before the offences dealt with in 2018. This adds to the effect of delay which I will return to below.
In relation to objective seriousness, the offences are obviously serious. It is possible to view the individual offences as generally being at about the same objective seriousness as those dealt with in 2018. However, I agree with the Crown that the present offences are probably a little more objectively serious.
The offender has not been charged with any further offences committed since he left prison. The Crown also acknowledges that “the offender meaningfully engaged in targeted treatment as part of his previous sentence”. It is also agreed that the delay in bringing the current matters to this stage is a mitigating factor; the delays were not caused by the offender.
The Crown concluded its written submissions in this way:
The Crown submits that having regard to the nature of the offending and the need for general deterrence and community protection, the only appropriate sentence is a term of imprisonment. However, the Court is entitled to moderate that sentence when considering the delay in the matter and the extent of the Offender’s rehabilitation.
I initially read the above submission as suggesting that a term of full-time custody was called for. The Crown today however, fairly and properly, told me that my interpretation was not correct. The Crown said that it would not be an appellable error to impose a sentence that did not include a full-time custodial element.
Counsel for the offender has submitted that while a term of imprisonment is inevitable, serving that term should take place in the community. In other words he suggests a suspended sentence or an Intensive Correction Order (an ICO).
Following his earlier sentencing, the offender attended an ACT Corrective Services Sexual Offender Program. The Exit Report ends in this way:
Since leaving custody in November 2018 Mr Simonetti has maintained a stable lifestyle with his family and friends. He has actively participated and maintained his casual employment, continued with his tertiary education studies, engaged with a counsellor, and reported no problematic alcohol or other drug use.
The identified treatment targets have been met by Mr Simonetti to a ‘Good’ or ‘Excellent’ standard for each of the program modules. He has chosen to maintain his engagement with fortnightly counselling sessions and has expressed to his Community Corrections Officer his interest in seeking ongoing treatment with a private psychologist under a mental health care plan.
Of note, Mr Simonetti attended all program sessions and responded diligently to all program requirements. He appeared motivated to participate fully in the program with a view to develop self-understanding of his offending behaviours and protect his future self from re-offending.
Consistent with the above report, after leaving prison, the offender sought independent counselling to “enhance his rehabilitation, and address his ongoing issues around anxiety, depression and his lack of self-confidence”. Up to July 2022 the offender attended 35 sessions with his counsellor, Mr Taylor. In his report dated 11 July 2022, Mr Taylor concludes:
In our sessions Oliver has sought and developed a deeper understanding of what led him to offend, developed a clearer connection to his values and faced up to the cost and consequence of his offences. During this time he has also learnt and successfully practised many strategies and tools to assist him now and moving forward. I am confident that Oliver has learnt the errors and impacts of his past actions and has the skills, tools and drive not to re-offend.
Mr Nomchong, a psychologist, wrote in 2018:
Fortunately, Oliver has responded well to therapy from me and others and as a result, I have formed the view that it’s quite unlikely that Oliver will engage in such abhorrent behaviour again, that he has good insight into his actions and their impact upon others, and that he is deeply regretful of those actions.
Oliver is continuing with the therapy. To his credit he has taken the view that he needs to seize this opportunity to continue his personal growth and to make change in his life, which he sees as important in this stage of his life- I agree with him.
The offender no longer sees Mr Nomchong but has commenced alternative psychological treatment, in line with the opinion of Dr Clout, as expressed in her report of 5 August 2022. The Crown asked me to pay particular attention to paragraphs 42 and 45 of the report as demonstrating some possibly remaining concerns. I would hope that these concerns will be addressed by Corrective Services when dealing with the offender in the future.
There are a number of up-to-date character references. The letter from the offender’s mother gives some explanation about the reasons behind the two sets of charges. She says:
Back in mid-June 2017, the officer in charge of the case told me they were holding other evidence, but that “this was enough for now”. Then, on Christmas Eve 2021, the AFP came to our home with a summons covering this additional evidence.
Mrs Simonetti describes her son’s battles with depression and his responsible dealing with his predicament. This included his approach to his expenses. He rejected an offer for financial assistance to pay a lawyer in 2016. He responded: “Mum, I did this, I have to deal with it”.
Mrs Simonetti describes the effects of the previous court proceedings on the family. Lights outside their house were smashed. Dolls covered with red paint were found on the courtyard table and an envelope with pictures of teenage pornography was placed in their letterbox. The girlfriend of Mrs Simonetti’s other son was warned about association with the family by her parents. Mrs Simonetti herself had to provide reports to maintain her security clearance at her place of work in a Commonwealth department.
There is a glowing reference from a family friend who says “I would be proud to have him as one of my sons”. The neighbour refers to his “wonderful character” and his resilience. A social worker observes:
Oliver has changed significantly since serving his custodial sentence. While he has always been more mature and responsible than you would expect of someone his age, his awareness of the limits on his life now and in the future have affected his enthusiasm. However, I am always impressed with his ability to deflect any sympathy and take full responsibility for his actions.
Oliver has also genuinely apologised to his victims, and I am convinced he will always be truly sorry for what he has done.
I note here that as a result of his earlier convictions, the offender was placed on the Sex Offenders Register for life.
One of the offender’s employers has written highly of his work commitment and his recent offer to him to become a full-time employee.
There is a very recent statement from the offender. He says that he has completed his commerce degree but is having difficulty obtaining employment because of his criminal history. He lives at home and has the support of his family. In relation to his offending he says:
These factors do not excuse any of my actions, but I want to share what I have come to understand is part of the context of my actions, such as making someone else, anyone else, feel as bad as I was at the time. I realise now that this was an inexcusable reaction to what was happening to me and that I should have sought professional help. I wish I had known what abuse, both mental and physical looked like so that I could have caught myself experiencing them and escaped, but my mind was clouded with the twisted thoughts I was being told were part of a normal relationship.
In relation to the new charges the offender writes:
Despite how I feel, including the constant dread of being incarcerated again, I can only imagine what it must be like for the victims to have had to wait all this time for the case to be heard. When someone makes you feel as unsafe and vulnerable as I made them feel it must be very difficult to not see that person brought to justice.
I accept, through the offender’s statement, the references and his pleas of guilty that he has expressed genuine remorse for his offending and empathy for his victims. I think he is entitled to a 25 per cent discount on sentences.
There is an up-to-date pre-sentence report. It states:
Following his release from the AMC, Mr Simonetti engaged positively with this Service in relation to supervision of the above-mentioned order. Service records reflect that he completed a further offence-specific program during the supervision. He was compliant with the conditions of the Order and was polite and respectful to staff at all times during supervision appointments and while participating in group programs.
Mr Simonetti has a number of protective factors including employment, stable accommodation, positive attitudes towards his offending behaviour and has always engaged positively and respectfully with staff of this Service.
The report concludes that he is suitable for an ICO.
The delay in this matter has two consequences. Firstly, there is the period of time that has elapsed since the offences were discovered. This of itself would have been a stressful burden upon the offender, and of course also the victims. Secondly, there is the difficult to understand circumstance of the current offences not being brought up until December 2021 and not coming to sentencing until now.
All of the offences should have been dealt with together. Instead the offender has served a prison term, in which he has complied with all requirements and then continued his rehabilitation. This is one of the rare cases where it might be said that rehabilitation has been successful.
To send this man back into full-time custody would be to contradict all the hopes that were placed in him, in particular by the criminal justice system, to place him in a position of being able to lead a productive life. This ability is already impeded by his convictions. It would be wrong to add to the impediments.
There is absolutely no doubt that the offences require a term of imprisonment. The victims in this matter have not given any statements about the impact of the offending upon them. Nevertheless, I have no doubt that their experiences were awful and frightening and will remain with them for the rest of their lives. The victims have also suffered from the delay. The fact that they have viewed these proceedings on AVL emphasises their continuing suffering and interest in the matter.
The victims, and the community generally, should be in no doubt that offences of this type will, absent special circumstances, result in the offender going straight from this court to the prison.
But there are special circumstances here, as I have outlined above.
The very unusual facts, arising from the delay, including the offender’s successful attempts at rehabilitation have persuaded me that full-time prison should not be imposed.
On the last occasion I rejected an ICO because the offending was too serious. The offending here is equally, if not slightly more, serious but the exceptional factors I have mentioned above now permit me to impose the ICO.
There will necessarily be a good deal of concurrency in the sentences. However, there will be some accumulation so that each victim is aware that a particular part of the sentence is attributable specifically to the harm caused to that victim.
Another difference that will arise in relation to the total sentence is that in the earlier matter I applied a discount of 15 per cent, whereas in this matter the discount is 25 per cent.
I make the following orders:
(i)CC21/11417: Using a carriage service to cause child pornography material to be transmitted to himself to transmit and to publish child pornography: the offender is sentenced to imprisonment for 16 months and 14 days (reduced from 22 months) to commence today and end on 8 January 2024.
(ii)CC21/10896: Using a carriage service to make a threat to kill: the offender is sentenced to imprisonment for 11 months and 7 days (reduced from 15 months) to commence on 2 May 2023 and end on 8 April 2024.
(iii)CC21/10894: Using a carriage service to menace: the offender is sentenced to 9 months imprisonment (reduced from 12 months) to commence on 9 October 2023 and end on 8 July 2024.
(iv)CC21/11715: Using a carriage service to menace: the offender is sentenced to 9 months imprisonment (reduced from 12 months) to commence on 8 January 2024 and end on 7 October 2024.
(v)The total period of imprisonment is two years, one month and 12 days.
(vi)The above period of imprisonment is to be served by way of an Intensive Correction Order subject to core conditions.
| I certify that the preceding forty-six [46] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |
0