R v Singh

[2021] NSWDC 220

District Court

New South Wales

Medium Neutral Citation:

R v Singh [2021] NSWDC 220

Hearing dates:

1/12/20-10/12/20, 26/2/21, 19/3/21

Date of orders:

19/3/21

Decision date:

19 March 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Re the Commonwealth offence of Use Carriage Service - Convicted and sentenced to 2 years imprisonment (19/3/21-18/3/23). I decline to set a Recognisance Release Order.

Re the State offence of Grooming Child – convicted and sentenced to a term of imprisonment of 3 years 9 months with a NPP of 2 years (19/6/21-18/6/23). I find special circumstances.

Therefore the total effective sentence is 4 years with a NPP of 2 years 3 months.

Catchwords:

Crime – Sentence – Commonwealth and State offences – Use carriage service to solicit child pornography – Engage in conduct what exposed indecent material to a child under the age of 14 years with the intention of making it easier to procure her for unlawful sexual activity - Grooming

Legislation Cited:

Commonwealth Crimes Act 1914

Commonwealth Criminal Code 1995

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Minehan v R [2010] 201 A Crim R 243

R v Nahlous [2013] NSWCCA 90

R v Porte [2015] NSWCCA 174

Category:

Sentence

Parties:

NSW DPP – Crown
Gurdial Sing - Offender

Representation:

Ms C Hurford for Crown
Mr A Radojev/Mr R Keller for Offender

File Number(s):

2018/99506

Publication restriction:

Statutory non-publication order in relation to the identity of the victim

sentence

1. On 10 December 2020 the offender Mr Gurdial Singh was found guilty by a jury of an offence under s 66EB(3) of the Crimes Act 1900 (NSW) and of an offence under s 474.19(1) of the Commonwealth Criminal Code 1995.

2. The first offence is one of engaging in conduct that exposed indecent material to a child under the age of 14 years with the intention of making it easier to procure her for unlawful sexual activity. The maximum penalty for that offence is 12 years imprisonment and a standard non-parole period of five years is specified.

3. The second offence being the Commonwealth offence is one of using a carriage service to solicit child pornography and that offence carries a maximum penalty of 15 years imprisonment.

4. Of course the maximum penalties and in the case of the State offence the standard non-parole period are guideposts to which I must have regard in determining the appropriate sentences.

5. It is necessary in sentencing the offender for me to determine the relevant facts which must be consistent with the findings of the jury. In this regard I note that at trial the Crown case relied fundamentally on a number of electronic communications that were admitted into evidence. There was no dispute that those communications took place nor any dispute as to their content. The dispute at trial was whether the Crown had proved beyond reasonable doubt that it was the offender who engaged in those communications.

6. The jury verdicts clearly acknowledge that this question was answered in favour of the Crown. In those circumstances and as agreed by the offender’s counsel during the sentence hearing it is open to the Court to use the Crown case statement as the basis for the necessary factual findings. Using that Crown case statement as an aid I summarise the relevant facts as follows.

FACTS

7. The complainant was born in April 2004 and was 12 years of age at the time of the offences. She lived with her family in a small town in rural New South Wales. At the age of about seven years she was diagnosed with Attention Deficit Hyperactivity Disorder and in late 2016 she was also diagnosed with an Autism Spectrum Disorder.

8. The offender was born in 1984 and was 31 years of age at the time of the offences. During 2016 the complainant created an account on a teenage dating site called MyLOL.com which was essentially a dating website for teenagers between the ages of about 13 to 19 years. The complainant’s username was “Joy13” which was an indication that she was 13 years of age. However, as I have said she was, in fact, 12. The offender also had a MyLOL.com account on which he used the name “Bad_Boy23” stating that he was 19 years of age and from Sydney.

9. On 19 July 2016 the offender contacted the complainant on MyLOL.com when the following exchange occurred:

10. The offender: “Hey how’re you doing?” and “Wow that pics are so hot.” The complainant replied “I got one without my top.” The offender replied “Yeah really - can I see?” Immediately after this exchange the complainant sent to the offender on MyLOL.com a photograph of herself wearing only underpants and with her breasts exposed. That image was later classified using the Interpol Baseline Scale as a category 1 child pornography image.

11. The offender in response sent a series of messages commencing with “OMG” which presumably meant “Oh My God”, “Wow, that is so hot”, “Your boobs are amazing”, “Do you got SnapChat?”, and “I show you mine.” I note that in reciting the facts in this matter that although the various text messages which I am quoting often used abbreviated words such as “UR” for the word “your” I will use language which effectively translates those words into what they are really intended to mean rather than quoting the actual words that were typed.

12. Shortly after that message that I just referred to the offender sent further messages as follows: “Wow you are so sexy OMG”, “That ass look so sexy”, “Do you got any without undies.” After this the offender sent to the complainant a photo of an erect penis with the message “Maybe you like this.” After receiving a reply from the complainant “It’s big” the offender replied “You like babe - do you got any without undies jus the ass”, “what else you got?” and shortly after sent to the complainant another photo of an erect penis and the message “What about this?”

13. About one minute later the complainant sent two images of herself. In the first she was wearing underpants and a grey shirt and in the second photograph wearing the same underpants but with the photograph focussed on the complainant’s back. These photographs were category 2 images on the Interpol Baseline Scale for child pornography. Shortly afterwards the complainant sent a follow up message saying “You like babe?” and then “What happens if I sit on your lap?”. In response, the offender replied “Yum. I’d love that.” and “You want to sit on my lap but make sure you take your undies off as well.” Then the complainant said “And then what will you do?” The offender replied “I kiss you first then slowly suck your nipples and then I rub my dick on your pussy babe.” and “Have anyone done this to you before babe?” to which the complainant said “No. I’m new at sex.” The offender then messaged “Um that’s hit” - which I assume was intended to mean “hot” - “I like that, nice and tight then.” and then sent an image of an erect penis to the victim.

14. The offender went on to say that he wanted to “kiss and lick” the victim’s “ass” and lick her “pussy” before putting his penis in her mouth and asked for her to send a photo of her “pussy”. While the 12 year old victim continued to participate in these chats the offender went on to describe other sexual acts he wished to perform with her and suggested that they meet up and “do this in real” and that he could pick her up and “come back to my house and fuck.”

15. These communications continued on 20 July 2016 with further suggestions by the offender that they meet up, culminating with the offender saying “I love virgin pussy, that’s so good” and “you sure you want to fuck, like you ready to do that, you know that’s gonna hurt a bit when I put my dick in.”

16. On 21 July 2016 that is, the next day, communications of a similar sexually explicit kind continued which included the offender requesting and instructing the victim to masturbate herself, saying “put your hand in your undies now” and “rub one finger in between your pussy” and “tell me how it feels” and “rub it fast now” as well as “now lick that finger babe…how that taste” and “now I want you to slide one finger into the pussy slowly”. It was after this exchange that the offender asked the victim to create a Skype account, which she did. There were four Skype calls on 21 July 2016. Two of them being very lengthy, namely 41 minutes, and another being more than three hours.

17. In all, the offender sent to the victim in excess of 400 messages, most of them over the space of three days which demonstrates a relentless intention to pursue her for sexual purposes. While many of the messages contain sexualised suggestions, others were emotionally manipulative including numerous messages expressing love and expressing supposed emotional support.

18. The offending came to an end only when the victim’s mother became aware of the communications and removed the victim’s computer from her and engaged in some further messaging with the offender aimed at gathering more information before going to police, which she did on 22 July 2016. Subsequently police executed a search warrant at the offender’s home and seized a number of devices on which various communications were found.

19. The offender participated in a voluntary interview with police in which he effectively denied being the person who engaged in the communications with the victim. Those in summary are the facts on which I proceed to sentence.

OBJECTIVE SERIOUSNESS   

20. It is important of course that in sentencing I make a determination of the objective seriousness of each of the offences. Count 1, which is the New South Wales offence, relates to the messages and video calls participated in and photographs sent by the offender. Count 2 relates to the photographs that the offender solicited from the victim which amounted to child pornography.

21. Clearly the significant maximum penalties and standard non-parole period in the case of the New South Wales offence mark them as offences that Parliament has treated very seriously. It is noteworthy that the penalty for the Commonwealth offence was increased in 2010 from 10 years to 15 years which is a further acknowledgment of the prevalence and seriousness of this type of offence.

22. As the Crown submitted, offences such as those committed by the offender have the potential to cause great harm to children. There is a significant public interest in protecting children from online sexual predators and conduct including communications which inappropriately sexualise young people: see R v Nahlous [2013] NSWCCA 90. Those persons who use the supposed anonymity of the internet to target children in this way must expect to receive significant sentences. Offences of this kind are sometimes difficult to detect. It is for these reasons and others that deterrence, both general and personal, must be given considerable weight in sentencing.

23. In assessing the objective seriousness of the offences I have had regard to the guidance provided in a range of Court of Criminal Appeal cases including Minehan v R [2010] 201 A Crim R 243, R v Porte [2015] NSWCCA 174, and other cases that have considered those decisions.

24. Turning to the objective seriousness of the State offence. In assessing the objective seriousness of that offence I take into account that it involved a real 12 year old girl. Also the offender was well aware that the victim was very young by reason of the photograph she sent, her references to attending school, and because her MyLOL profile described her as 13. There was also a wide age discrepancy between the victim and the offender.

25. While the communications with the victim took place over only three days from 19 to 21 July they were brought to an end by the intervention of the complainant’s mother rather than any voluntary cessation by the offender. The acts carried out by the offender were not a momentary lapse; indeed the offender continued trying to contact the victim until 11 August with messages such as “Where you been so long, I check your message every day on Skype” and “What happened, you don’t want to talk to me anymore? It’s Gary if you remember me?”

26. It is also relevant that the offender, after initiating the contact with the victim, pursued her with constant messaging which was largely sexual in nature and in which he encouraged her to use other messaging platforms to facilitate easier contact between them. He was, in part, successful in this in that on 21 July 2016 the victim engaged in Skype calls with him, two of which were of considerable length. He also sent pictures of an erect penis to the victim asking whether she “liked”. Furthermore the offender asked the victim where she lived and where she went to school and suggested that he pick her up and take her to his house for sex. He even conducted a Google search about the location of the school that the victim attended. Whether the offender would have followed through on the suggestions to meet up cannot be known. While the offender was successful in having the victim engage in some sexual activity in that she apparently masturbated herself at a time when she believed the offender was doing likewise, I am conscious that this may amount to a more serious offence of “procuring” under s 66EB(2) which carries a higher maximum penalty. I have therefore in accordance with De Simoni principles not had regard to these successful actions in determining the objective seriousness of this offence.

27. The essence of the offence under s 66EB(3) is engaging in conduct that exposes a child to indecent material with the intention to “make it easier” to procure the victim for sexual activity and that is the nature of the offence that I must assess and for which I must impose sentence. While the victim was in one sense a willing participant in most of the communications, this is not a matter that mitigates the seriousness of the offending given her immaturity and innocence. It is also relevant that the offending effectively took place in the victim’s home by her access to an internet connection. I do not accept the offender’s argument that this is in effect an element or inherent characteristic of this State offence.

28. It was submitted by the Crown that the New South Wales offence was above the mid-range of objective seriousness, while counsel for the offender suggested it was below the mid-range. In my opinion the objective seriousness of this offence lies within the mid-range but at the bottom of that mid-range.

29. I turn then to the Commonwealth offence. In assessing the objective seriousness of the Commonwealth offence I must have regard, as directed by s 16A(2) of the Commonwealth Crimes Act 1914, to a number of matters as are relevant and known to the Court and as set out in that subsection. As I have earlier noted, the nature and circumstances of the offence involved the offender soliciting and receiving from the victim images of herself that amounted to child pornography. This took place over a period of approximately two days and involved nine images in all. So to that extent it involved a course of conduct rather than an isolated act.

30. I have already set out some personal circumstances of the victim who was only 12. Given the serious nature of this type of offence and its obvious focus on the protection of children, deterrence both of this offender and of others is a matter to which I must give significant weight and part of this is also the need to ensure that the offender is adequately punished.

31. The child pornography material solicited by the offender clearly involved a real child who was at the time 12 years old. The nature of the material was photographs of the victim’s naked or partly naked body including her breasts, buttocks and vagina. It did not however involve the portrayal of any discreet sexual act or involve any physical cruelty or harm or seriously degrading conduct as do some offences that come before the Court. There were a total of nine images solicited from the complainant which is a relatively small number when compared with many cases that come before the Court involving thousands of images in some cases.

32. The offender’s purpose in soliciting the material was clearly for his own sexual gratification and there is no evidence of any intention to disseminate the material to other people. He was apparently acting alone rather than in collaboration with others.

33. In relation to the offender’s proximity to the creation of the material solicited, as is obvious, he was very closely involved, in that he encouraged and requested most of the images. The offences occurred over a limited period of about two to three days and did not really involve any degree of planning or organisation other than initially seeking out the MyLOL.com website and then in convincing the victim to commence using other platforms and also in convincing her to send photographs to him.

34. It was submitted by the Crown that this Commonwealth offence sits below the mid-range but not at the bottom of the range of objective seriousness, while counsel for the offender submitted it was closer to the lowest level of objective seriousness. In my view the offence is consistent somewhat with what the Crown submitted, below the mid-range and towards the lower range.

35. A Victim Impact Statement relating to the victim was read by her mother. As the contents were not the subject of cross-examination I approach them with the necessary care. Although the offences did not involve any sexual assault in a direct physical sense they did involve a serious invasion of the victim’s innocence, security and privacy. While in one sense the victim voluntarily participated in the communications, her level of innocence and immaturity was such that her actions cannot realistically be looked at as voluntary at all. She was without doubt taken advantage of in a serious way. While I do not treat the contents of the Victim Impact Statement as aggravating the offences, its contents confirm the Court’s own knowledge and experience that offences like this do have, as no doubt they have had in this case, significant and lasting consequences.

SUBJECTIVE MATTERS

36. I turn then to consider personal subjective matters relating to the offender. A social worker report has been placed before the Court which notes that the offender is an Australian citizen of Indian ethnicity, has a sister who lives in Perth and a mother who lives in India to whom he provides some financial support. He has a 10 year old son from a former marriage and a six year old daughter from a previous de facto relationship. However, the offender is, due to these offences, currently denied contact with his daughter who apparently is in State care after having been removed from her mother’s care. The social worker reports that the offender has been consulting with him since December 2020 after the guilty verdict by the jury due to his distress, depression and anxiety associated with the arrest and charging and the findings of guilt. There is no suggestion however in that report that his offending was linked in any way to any psychological or other problem, nor is there any suggestion that his upbringing involved any major hardship or trauma that might reduce his moral culpability, which I regard as being fairly high. The offender maintained his innocence to the social worker claiming, as he did with the jury, that he had been “set up” and ought to have secured his electronic devices and social media accounts. Ultimately the social worker concludes that the offender currently experiences severe stress, anxiety and depression with elements of adjustment disorder and that these are in response to an identifiable stressor which appears, given the timing of his consultations with the social worker, to have been the trial, findings of guilt, and presumably concerns about the sentencing outcome.

37. The character reference from the offender’s employer Raj Dhillon who is also his cousin, confirms the offender’s stable work history as a truck driver in which he is described as a valuable and experienced employee. Mr Dhillon notes the offender’s continued denial of the offences and intention to appeal and notes his continuing support for the offender and intention to consider re-employing him subject to any restrictions that might be imposed on his employability by these convictions.

36. I have another character reference from a friend of the offender, Kriti Bhasin, who also speaks of him in positive terms and describes him as coming from a middle class family in which the offender’s father died when the offender was only 13 years of age, such that his mother had to work very hard to raise the offender and his sister. This referee also notes the offender’s continued denial and intention to appeal his convictions.

37. The Sentencing Assessment Report that has been placed before the Court is largely consistent with the above material and also records the offender’s steadfast denial of the offences and claim to have been “set up by somebody”. Despite this he was noted to have expressed some empathy for the victim stating that he felt bad for her and would not want the same thing to happen to his own daughter. While I take these expressions of empathy into account the value I can give to them is limited given the offender’s continued denial of responsibility and his tendency noted in the Sentencing Assessment Report to identify himself as the main victim. The report assesses him as a medium risk of reoffending.

38. The offender is now 36 years of age, he has no prior offences other than an assault in 2013 for which he was placed on a s 9 good behaviour bond. He does not appear to suffer from problems like drugs, alcohol or gambling. He has a good work history and does not appear generally to have demonstrated anti-social or criminal tendencies aside from these offences. He has been assessed as a medium risk in the Sentencing Assessment Report and an average risk by a Corrective Services Psychological file review. In my opinion his prospects of rehabilitation are guarded but reasonable.

TOTALITY/ACCUMULATION

41. There is, as was submitted for the offender and conceded essentially by the Crown, a significant degree of overlap in the criminality of the two offences before the Court. But while there is this overlap, the offences are not identical. That is in part because the Commonwealth offence is concerned with the use of the internet and the role it plays in the commission of offences involving the distribution of child pornography, or, as in this case, the use of a carriage service to solicit child pornography: see R v Porte [2015] NSWCCA 174. In my view therefore while the sentences that I impose should be largely concurrent they should not be entirely so. I intend therefore to provide for some, although a minimal, level of accumulation so as to achieve what I regard as an overall sentence of appropriate severity.

42. In determining the overall effective sentence however I have had regard to principles of totality and the importance of not imposing a sentence that is overwhelming or crushing. In determining the sentences I have had regard to a number of prior decisions including decisions of the Court of Criminal Appeal of this State although it is difficult from cases decided to date to discern any clear range or pattern as to the quantum of sentences imposed in cases of this kind.

43. Ultimately it seems to me I must be guided by the guideposts of the maximum penalties and the standard non-parole period which is specified for the State offence as well as my own assessment of the overall criminality, tempered by any mitigating and subjective matters.

DETERMINATION

44. I convict the offender of both offences. As I am imposing a sentence for both a State and a Commonwealth offence I must set a term for each offence. I am satisfied in relation to each offence, and after considering all other alternatives, that no penalty other than full time imprisonment is appropriate.

45. In determining the State sentence I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 and I have had regard to the matters set out in part 1B of the Commonwealth Crimes Act 1914 in determining the penalty for count 2, that being the Commonwealth offence.

46. Mr Singh if you could please stand while I explain the sentence to you. For the Commonwealth offence I impose a sentence of imprisonment of two years to date from today 19 March 2021 which will expire on 18 March 2023. I decline to set a recognisance release order given that the offender will remain in custody at the end of that sentence due to the sentence that I will impose for the New South Wales offence. For that offence I impose a head sentence of three years and nine months imprisonment to date from 19 June 2021. I set a non-parole period of two years for that offence to date from 19 June 2021. The head sentence for that State offence will therefore expire on 18 March 2025 and the non-parole period on 18 June 2023. In relation to the State offence I have made a finding of special circumstances for varying the ordinary ratio between non-parole period and head sentence based upon this being the offender’s first period in custody and the importance of his being subject to a significant period of supervision once released to parole.

47. The total effective sentence therefore given the three months of accumulation that I have built in is one of a head sentence of four years with a non-parole period effectively of two years and three months.

48. Mr Singh will have to be taken into custody.

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Decision last updated: 01 June 2021