R v Smith

Case •

[2024] NSWDC 242

•

06 May 2024

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Smith [2024] NSWDC 242
Decision date: 06 May 2024
Jurisdiction:Criminal
Before: S Hanley SC DCJ
Decision:

Sentence

Legislation Cited:

Criminal Code 1995 (Cth), ss 474.19(1), 474.22(1), 474.27AA(2), 474.29AA(1)(a)-(c)

Part 1B Crimes Act (Cth), ss 16A(2), 16A(2)(n) 16A(2AAA), 20AB, 20(1)(b), 20(1)(b)(ii)

Crimes (Sentencing Procedure) Act 1999, s 67

Penalties and Sentences Act 1992 (QLD), s 20(1)(b)(ii)

Cases Cited:

Gulyas v Western Australia [2007] WASCA 263

Liu v R [2023] NSWCCA

Mertell v R [2022] ACTCA 69and

RvJarrold [2010] NSWCCA 69

R v Tootell ex parte AG [2012] QCA 273

Category:Sentence
Parties: Rex (Crown)
Robert James Thomas Smith (Offender)
Representation: Ms Pascoe, Solicitor for the CDPP
Mr Funnell, Counsel for the Offender
File Number(s): 2022/00074065

JUDGMENT

  1. The offender is to be sentenced for the following offences he pleaded guilty.

  1. Use carriage service to transmit child pornography to self, pursuant to s 474.19(1) Criminal Code 1995 (Cth), maximum penalty fifteen years. No SNPP.

  2. Use carriage service to “groom” another person to make it easier to procure persons under 16 years of age for sexual activity, pursuant to s 474.27AA(2) Criminal Code 1995 (Cth), maximum penalty fifteen years. No SNPP.

  3. Use carriage service to procure person under 16 years of age for sexual activity, pursuant to s 474.26(2) Criminal Code 1995 (Cth), maximum penalty fifteen years. No SNPP.

Scheduled Offence – s 16BA Crimes Act 1914 (Cth)

  1. The offender asks when sentencing him in respect of count 2 above that I take into account an offence of use carriage service to transmit child abuse material pursuant to s 474.22(1) Criminal Code 1995 (Cth), maximum penalty fifteen years.

  2. In sentencing the offender, I will take into account the maximum penalties as indicating the seriousness with which these offences are regarded and as providing guidance as to the appropriate sentence. I will also consider any particulars relevant to the offender.

History

  1. The offender was arrested on the 15 March 2022. He was interviewed and assisted the police in their investigation by providing them with details in respect of accessing his various devices capable of accessing the internet. He was charged with offences other than those now before me and a trial date was listed.

  2. He was released to bail and has spent no time in custody.

  3. After negotiations between the parties the offender pleaded guilty to the offences before me at a Super Call Over conducted at the Goulburn District Court on the 14 August 2023. The sentence hearing has been delayed because of the offender’s poor health. He appeared at the Parramatta District Court on 2 May 2024 for the sentence hearing. I have received detailed written and oral submissions from both parties.

Sentencing for Commonwealth Offences

  1. The Court must sentence the offender in accordance with Part 1B of the Crimes Act (Cth) being one that is of ‘a severity appropriate in all the circumstances of the offence. Section 16A(2) of the Crimes Act requires the Court to consider the matters listed in that section to the extent that they are relevant and known to the Court.

  2. A new sentencing regime was introduced in June 2020 which applies to Commonwealth child sexual offences that applies to conduct occurring after 23 June 2020, except for changes pursuant to s 16A(2), the application of s 16A(2AAA) and the addition of residential treatment orders as an additional sentencing alternative under s 20AB which apply to sentences or orders made in respect of a person charged or convicted after 20 July 2020. The new sentencing regime applies to Count 2 and 3, but not to Count 1 (which occurred in 2016).

  3. Count 1 and Count 3 are prescribed sexual offences for the purposes of s 67 of the Crimes (Sentencing Procedure) Act 1999. Consequently, an ICO is not available for these offences. The Crown accepts that s 474.27AA is not a prescribed sexual offence. Therefore, the Court is not statutorily precluded from imposing an ICO for Count 2. The Crown also accepts that the Court is not required to find ‘exceptional circumstances’ pursuant to s 20(1)(b) to impose an ICO. This is because the Court’s power to impose an ICO is found under s 20AB which is not affected by the s 20(1)(b).

  4. Both parties have addressed me in respect of the nature of the sentence to be imposed. Ms Pascoe, solicitor for the CDPP, submits only a custodial sentence should be imposed when applying the applicable principles and considerations in sentencing for online child exploitation offences that include an immediate term of imprisonment is ordinarily imposed for offending involving the online sexual exploitation of children and to ensure the objective of general deterrence, a primary sentencing consideration for offending involving the online sexual exploitation of children, is achieved.

  5. Mr Funnell, counsel for the offender, submits count 1 can be appropriately accounted for without the imposition of imprisonment. He concedes terms of imprisonment are appropriate for Counts 2 and 3. However, his ultimate submission is that Count 2 can be served by way of an Intensive Correction Order, and that there are exceptional circumstances with respect to Count 3 such that the Court may direct Mr Smith’s immediate release upon him entering a recognizance.

  6. Ms Pascoe reminds me that in sentencing for offences of this kind general deterrence is a primary consideration and personal mitigatory factors such as prior good character, age and prospects of rehabilitation must therefore be given less weight than might otherwise be given.

  7. The policy considerations that lay the foundation for this approach are well known to the courts and in applying them I accept specific deterrence, denunciation, punishment, and protection of the community are also very important sentencing considerations.

  8. I accept all the factors identified by the parties need to be considered in a synthesized approach to sentencing the offender and each case turns on its own facts to be applied in an application of general sentencing principles identified from comparative cases.

NATURE AND CIRCUMSTANCES OF THE OFFENDING

FACTS

  1. These are set out in the Crown Bundle and described as “Agreed Statement of Facts” (exhibit A, tab 3). They are extensive (19 pages in length) and I will attempt to summarise their content. For abundant clarity I advise I have had regard to the entirety of the document.

  2. At all relevant times, Robert James Thomas Smith (the offender) used a gmail email account and the ‘Chatiw’ username ‘Bobby’. His Chatiw profile listed his age as 43 years old and from Australia. The offender was in fact aged 77 years.

  3. On 8 June 2021 New South Wales Police Force investigators attached to the State Crime Command, Child Abuse and Sex Crimes Squad, Child Exploitation Internet Unit (CEIU), commenced covert online duties and engaged in communications utilising the assumed online identity of a 41-year-old female (CEIU16) who told the offender that she had a 9 year old daughter Hannah (the child).

  • Between 8 June 2021 and 6 July 2021, the offender used a carriage service, to transmit a series of communications to CEIU16 with the intention of making it easier to procure the child to engage in sexual activity with CEIU16 (Count 2).

  • Between 8 June 2021 and 7 July 2021, the offender used a carriage service, to transmit a series of communications to a recipient he believed was the child, with the intention of making it easier to procure the child to engage in sexual activity with CEIU16 (Count 3).

  • On 9 June and 7 July 2021, the offender transmitted material using a carriage service, the material being child abuse material (s 16BA Crimes Act 1914 - scheduled offences).

  • Following the execution of a search warrant on the offender’s premises, police located communications between the offender and an unknown person exchanged on about 4 August 2016. During these communications, the offender caused material to be transmitted to himself using a carriage service, the material being child pornography material (Count 1).

Count 2 and Count 3

  1. On 8 June 2021, police signed into an online chatroom on the website ‘Chatiw’ under the assumed online identity of CEIU16. CEIU16 and the offender, who was using the username ‘Bobby’, started a private conversation.

  2. During the subsequent exchange, the offender asked CEIU16, ‘how old is yours hun’, to which CEIU16 replied, ‘she’s 9’. The offender stated, ‘i bet she’s cute lol’ and enquired whether CEIU16 was by herself or if her child was also present with her. An extract from this conversation is contained in the Agreed Statement of Facts.

  3. The extract records the offender enquiring if the child was present when CEIU16 flirted, whether the child had caught CEIU16 having “sex”, and guardedly enquiring if CEIU16 is receptive to him “flirting” with CEIU16 with child present.

  4. The offender suggested that CEIU16 download ‘wickr’ because it is ‘easy safe and free’. The offender suggested the alternative of CEIU16 ‘txt me if you like and delete if you want’. The facts record extracts that can be summarized as enquiring of CEIU16 if the child could “join in”.

  5. The offender provided CEIU16 with his gmail email address and asked that CEIU16 add him on Google Hangouts.

  6. The same day, CEIU16 sent an invitation for the offender to join, which he accepted. The offender and CEIU16 continued to exchange messages on the Google Hangouts platform. The offender stated that he needed 10 minutes before he could ‘…chat with your dau with you…’. The extract can be summarized as enquiring of CEIU16 if the child was present, enquiring what CEIU16 was wearing, confirming he wanted the child to be included in their sexual acts but with a reassurance he was not a “pedo”.

  7. CEIU16 advised the offender that the child was with her and asked whether he wanted to ‘chat with her’. The offender commenced a conversation with the AOI purporting to be the 9 year old child of CEIU16 (Count 3). The extract of the conversation records the offender requesting the child to give CEIU16 a “hot kiss” on the “lips and tongue”; cuddle CEIU16 “like a girlfriend”, to tell CEIU16 to take her top off, to rub CEIU16’s “boobies”. Thereafter, he advised he had a “bulge”, “an erection”.

  8. CEIU16 and the offender resumed speaking between themselves. The offender enquired, ‘were you girls both comfortable did i do it ok? i was hard as a rock tbh [CEIU’s name]’. This conversation ended with him writing “take your top off for her first and have s kiss and cuddle with her hun xx”.

  9. The offender further encouraged CEIU16 to take her top off whilst she bathed her daughter, CEIU16 expressed concern about progressing matters too quickly. The offender stated that he agreed, ‘let’s take it slowly xxx’.

  10. CEIU16 noted that she hoped the offender was not just fantasying, to which the offender replied, ‘oh no honestly [CEIU16’s name] im feel the same i didn’t expect this but i love it’. CEIU16 asked whether the offender had ‘done stuff like this’ with his children. The offender replied, ‘no i havnt as i said earlier darl its my first time too’.

Count 2

  1. On 15 June 2022, CEIU16 contacted the offender on Google Hangouts. CEIU16 stated that she and her daughter had been away for the weekend. The offender enquired, ‘hehe lovely did yuz kiss and cuddle ? xxx did you flirt with her hun?’. CEIU16 stated, ‘Ohhh no not really lol’ because she felt awkward. The offender stated, ‘i don’t want to get you into something you’re not comfortable with babe remember im new to this too x’.

  2. The offender told CEIU16, ‘i think if child watched us and we brought her in slowly x’. He wrote “I i think if you and i made love in front of her that’s a good sign i don’t think she would talk then”.

  3. The offender told CEIU16 to give the child a kiss from him, ‘kiss her and tell her its from me lol xx give her a hot pash and tell her its from me xxx’. Further extracts of relevant messages recorded the offender requesting CEIU16 to “pash” the child, cuddle her and “let her rub your boobs”, that he was thinking of the 3 of us and the child and CEIU16 “rubbing” each other.

Count 3

  1. CEIU16 asked the offender whether she should put the child on to chat with him. The offender commenced a conversation with the AOI purporting to be the 9 year old child of CEIU16. Extracts include the offender asking if she wanted to kiss him, advising that he would show her how to kiss and cuddle, telling her to practice with CEIU16 by kissing her and rubbing her nipples, that CEIU16 would show her how to do these acts, and enquiring if the child would like to be with him and CEIU16 in bed with him kissing and cuddling both.

Count 2

  1. On 20 June 2021 CEIU16 messaged the offender on Google Hangouts. The Offender asked CEIU16 whether her daughter was with her. The offender encouraged CEIU16 to interact sexually with her daughter. The offender stated that, ‘im hard for you 2’. An extract from this conversation includes the offender describing how he would show the child how to “suck your nipples” and him fantasising about the three engaging in sexual acts where the child touched CEIU16‘s “pussy” and the child and CEIU16 performed fellatio.

  2. On 30 June 2021, CEIU16 emailed the offender on the email address he provided her, enquiring whether he had blocked her. On 5 July 2022, the offender replied that he had not deleted her but that he ‘may have deleted our convo cos i thought you were no longer interested come back on wickr my username is friendlyguy101 I really like you and [child name]’.

Count 2

  1. On 5 July 2022, the offender initiated a conversation on Chatiw with CEIU16. The offender was still utilising the username ‘Bobby’, and his profile information indicated that he was 43 years old from Australia. It can be inferred from messages as extracted that the offender was unaware that he was speaking with CEIU16 again. During the conversation CEIU16 revealed she had a 9 year old daughter. The offender stated he was thinking about he and CEIU16 having sexual intercourse in front of the child.

  2. CEIU16 asked the offender whether he was talking about ‘…like that fake stuff or irl?’, to which the offender replied ‘…im into the real stuff’. The offender stated that he would like to have sex with CEIU16 in front of her daughter. The offender stated that he would ‘…love to see you girls in bed together’. The offender stated, ‘ive never done it but would love to explore it with you xxx i think your great’ and asked whether CEIU16 was interested in ‘exploring’.

  3. CEIU16 provided her email address to the offender at which point he recognised the email address of CEIU16 from their earlier conversations and said, ‘say hi to [child’s name] babe’.

  4. Later, the same day, the offender messaged CEIU16 on Telegram. The offender and CEIU16 commenced exchanging messages during which it was confirmed the child was 9 and loved the idea of her being that age, that he wanted to have ‘sex’ with the two of them, that he and CEIU16 should have sex in front of the child. CEIU16 explained to the offender that she was uninterested in a relationship. The offender in reply stated, ‘i thought you liked me’ and ‘i mean i think you only wany me for the taboo rather than liking me but let me reset my goals with you now hun’. The offender asked CEIU16 what her daughter was doing and whether she was with CEIU16. The offender stated, ‘i like the idea of the 3 of us being together’, asked if the child liked kissing and instructed CEIU16 to tell the child, ‘ask her would she like me to kiss her’.

  5. The offender stated it would be nice for the three of them to be in bed kissing and for him to perform cunnilingual acts on both CEIU16 and the child.

  6. In explicit terms the offender encouraged and directed CEIU16 to get her child to perform oral sex on her. The offender stated that he was ‘turned on’, had an erection and was masturbating.

Count 2

  1. On 6 July 2022, CEIU16 messaged the offender on Telegram. The offender asked how the child was following their activities the previous day, ‘kissing cuddling touching’. The offender enquired whether the child was with CEIU16 and to ‘ask her if she would like some more x’. The offender encouraged CEIU16 to ‘cuddle her’, ‘rub her’ and ‘rub against her’.

  2. The offender asked CEIU16 what the child was wearing, instructed CEIU16 to rub the child’s inner thigh, ‘pash her’ and ‘this is hot get [child’s name] to suck your nipples’.

Count 3

  1. On 7 July 2022, the offender and the child engaged in a conversation during which he confirmed with the child whether she and CEIU16 had been kissing and cuddling, that the 3 of them would have fun together, that the child could “feel mummy’s pussy “ and that it was “our secret”.

  2. The offender then recommenced speaking with CEIU16. The offender in real time asked CEIU16 to engage in sexual activity with the child including “cuddling and fingering”, getting the child to “finger and fist” CEIU16.

Scheduled Offence

  1. On 9 June 2021, the offender initiated a conversation with CEIU16 on Google Hangouts. The offender and CEIU16 discussed engaging in sexual activity with the child, with the offender stating ‘mmm nice do you have a toy there im going to talk about the three of us babe’. The offender then described a sexual encounter with him, CEIU16 and her child. He described to CEIU16 the three on a lounge where CEIU16 was kissing and cuddling him and the child, the child and CEIU16 kissing each other in front of him, CEIU16 taking her top off, the child as a result of their training, kissing the nipples of CEIU16, digital intercourse being performed by the child on CEIU16, he having penile/vaginal intercourse with CEIU16 whilst the child sucked on CEIU16‘s “tits”, showing the child how to perform fellatio, and him performing digital intercourse on the child.

  2. On 7 July 2022, CEIU16 initiated a conversation with the offender via Telegram. The offender asked how the child is. CEIU16 advised the offender that the child was going to stay at her ‘Nans tonight for the next few days while im on shift’. The offender stated, ‘hope she doesn’t say anything’. Extracts from this conversation include the offender imagining him having sexual intercourse with the child whilst CEIU16 watches and him having sexual intercourse with CEIU16 whilst she performed a cunnilingual act on the child.

  3. The offender informed CEIU16 ‘its not a fantasy but remember i said if any of us decide to opt out we can im great with it so far’.

  4. On 12 July 2021, CEIU16 and the offender exchanged messages on Telegram. They discussed the Covid-19 lockdowns. The offender stated that he thinks about CEIU16 and the child a lot.

  5. On 13 July 2021, CEIU16 messaged the offender on Telegram. The offender stated that he was too busy to talk at that time.

  6. On 29 July 2021, CEIU16 emailed the offender, ‘Hey hun, i hope i didn’t say something wrong? i was glad that i found someone like you – hope we can talk soon J xx’. The offender did not respond.

  7. There were on further communications initiated by the offender with CEIU16.

Arrest

  1. On 15 March 2022, police attended the residential address of the offender. He was placed under arrest and cautioned. The offender made the following admissions before being conveyed to Goulburn Police Station:

  • he accessed Chatiw on his phone;

  • he has used Chatiw ‘on and off for couple years probably’;

  • his Chatiw username was ‘Bobby’;

  • he denied having child abuse material in the house;

  • provided police with the pin code to his mobile phone;

  • [email protected] is the email address he uses; and

  • that he had used Google Hangouts but does not use it anymore because ‘I thought it was a bit dodgy if you like’.

  1. Following the offender’s arrest, a Commonwealth search warrant was executed at the offender’s residence and the following items were seized and examined:

  • 1x LG mobile phone.

  • Lenovo tablet; and

  • 2 x ZTE mobile phones.

Count 1

  1. Examination of one of the ZTE mobile phones revealed a conversation the offender had engaged in on about 4 August 2016, in which he caused child pornography to be transmitted to himself. This conversation revealed a purported child describing being sexually assaulted by her father in graphic terms and claiming she enjoyed it. The offender was obviously sexually excited by what was described.

Interview

  1. The offender participated in an electronically recorded interview and answered most questions with ‘no comment’. He did state that ‘this was a total fantasy’ and ‘I was always under the impression that you had to be 18 to be on the chat line’.

  2. The offender has provided an explanation for his offending to Dr Katie Seidler, psychologist. Mr Smith worked as a registered nurse for almost 50 years. He retired in 2016. According to Dr Seidler at [89]:

“It seems that he experienced a catastrophic loss of coping after that time, such that he descended in to depressed mood, he became preoccupied with death and dying and experienced ongoing anxiety in relation to his future. This, in addition to the changes in his life and identity that went along with retirement, were very challenging for Mr. Smith and he found his internal experiences (thoughts and feelings) in this context intolerable. To this end, Mr. Smith reported turning to online chat rooms in order to distract from his thought processes and seek some ‘release’ both cognitively and emotionally. It was within this context that Mr. Smith offended. Mr. Smith reportedly found the focus on sexual thoughts, feelings and behaviour, through his online activity, soothing and distracting and this motivated him to engage online with others for sexual chat. Through this process, he became variously interested in and aroused by various sexual themes and topics, including for a time, the sexual abuse of children in the context of mother-child incest” [emphasis added].

Objective Seriousness of the Offences

  1. Ms Pascoe has set the well-recognised factors relevant to be considered for these offences. Both parties have referred me to those they submit are relevant. I propose to only identify those I am satisfied are relevant to this offending.

Count 1

  1. The offence occurred in a single SMS exchange between Mr Smith and another person on the 4 August 2016. The identity of the person with whom the offender was communicating is unknown. Although the “child” in the description could be of a young age their age at the time of the exchange is unknown.

  2. The child pornography transmitted was graphic, including the description of an 11 year old child being raped by his father.

  3. No material depicting persons under the age of 18 years was exchanged or requested. There is no evidence that the material was for the purpose of sale or further distribution, or that the offender would profit from the offence.

  4. Mr Funnel submits there is an element of the absurd to the conversation. Prior to Mr Smith asking the other person how old they were when they first had sex (“Byes tell me about the first one how old were you”), it was unclear whether the other person was referring to sexual activity which occurred before they turned 18 years of age.

  5. Up until the next question posed by Mr Smith, no offence contrary to s 474.19 had been committed. By asking the other person, “Nice hot babe did you love it”, after he had been informed that the other person was referring to sexual activity when they were “11”, Mr Smith took the unjustifiable risk (see “recklessness” as defined by s 5.4) that the other person may respond in terms that described their sexual activity as a child in an offensive manner. His liability is confined to one question in the context of a sexually graphic, albeit otherwise lawful, conversation.

  6. Mr Funnell further submits the distinction between depiction and description is significant in this offence because no child was used in the making of the child pornography material that Mr Smith is liable for, being the description of the act. In the circumstances of this matter, description is less serious than depiction, and he submits, considerably so.

  7. For all of those reasons, I am satisfied this offence is towards the lowest end of objective seriousness for comparative offenses of this kind.

Counts 2 and 3

  1. The following are relevant features of the offender’s conduct the subject of Counts 2 and 3:

  1. The offending occurred over approximately one month.

  2. There was no identifiable victim. However, the absence of a real child victim does not mitigate the offending.

  3. The offending was targeted towards multiple prepubescent children who were only 9 years old. The defence concede despite his claim he believed the conversations were “a total fantasy”, he is liable on the basis he was aware there was a substantial risk that the “putative” child may have been real, and knowing of that possibility, he was unjustifiable to communicate with the undercover operative in the manner he did. I accept there is an air of unreality in the conversations that lend some support to the offender’s belief as to the lack of reality.

  4. The offender was 77 years old at the time of the offending. There was a significant age difference of 68 years between the offender and the children.

  5. The communications were explicit and suggested incestual acts between mother and child as well as the offender participating in sexual acts with the child. The most serious aspect of the offending was its capacity to harm the putative child and damage the relationship between the putative mother and daughter. The offender’s conduct leveraged the trust expected to exist within such a relationship to permit the offender to use that trust as a pathway for intended sexual acts with the child.

  6. The nature of the activities being procured included both digital penetration of the mother’s genitals and sexual touching. In respect of count 3, the sexual activity sought to be procured was confined to sexual touching.

  7. Ms Pascoe submits the offender took some steps to conceal his identity, providing a false age and telling the child to ‘keep it our secret what we do’. Mr Funnell argues these offences are marked by an absence of sophistication. The strength of the Crown case, as noted by the Crown at [26] of their written submissions, is largely reflective of the way these offences were committed. At all relevant times, the offender was communicating using an account linked to an email address in his own name. On 8 June 2021, the first day of contact, Mr Smith provided this email address to the undercover operative. He also offered to provide her with his phone number.

  8. The fact he informed the putative mother of the child he was aged 43 years indicates he had no intention of meeting with the putative mother or child or performing any of the sexual acts he claimed they would participate. I am satisfied he misrepresented his age to facilitate online communications, as opposed to efforts to conceal his identity and this adds weight to the offender’s assertion, he was fulfilling a particular fantasy by transmitting material of this kind cannot be excluded. Implicit in these findings is my acceptance on the balance of probabilities that the offender believed that he was engaging in fantasy discussion and that he had no intention of arranging a meeting with the person he was talking to or meeting any child or engaging them in sexual conduct. Confirmation of his intention is confirmed by his discontinuing communication with the undercover operative. I am cognisant of the approach of the Court in R v Jarrold [2010] NSWCCA 69, where the transmission offences involved internet conversations with others concerning sexual activity between the respondent and children. An argument that the offences should be treated as less serious because they were a result of fantasy was strongly rejected: at [53], however the court found in the circumstances of that case they otherwise fell towards the bottom of the range: at [55].

  9. The offender was motivated by sexual gratification, and this was apparent from the recorded communications. And

  10. The offender did not offer any inducements.

  1. Mr Funnell has submitted I would take into account the opening exchange between the undercover operative and the offender is not in evidence and it is unclear who first initiated contact. For those reasons he claims it is unknown whether Mr Smith was specifically seeking out children on 8 June 2021, or alternatively following the undercover operatives’ lead.

  2. He also submits that I would take into account between 8 June 2021 and 7 July 2021, the offender and the undercover operative communicated on eight separate days. On 9 June 2021 Mr Smith contacted the undercover operative. Thereafter there was no further communication until 15 June 2021 when the undercover operative initiated contact.

  3. He refers me to the history of communications between the undercover operative and the offender that identifies it was the undercover operative who next initiated contact on 20 June 2021 and again on 30 June 2021. On 5 July 2021, after an apparent mix up, Mr Smith contacted the operative. Thereafter it was the undercover operative who initiated contact on 6 July 2021, 7 July 2021, 12 July 2021, 13 July 2021, and 29 July 2021.

  4. He does not suggest the offending is attributable to the undercover operative, however the fact that it was the undercover operative who continued to initiate contact with the offender is relevant to the duration of counts 2 and 3.

  5. In light of the offender’s admission that his internet communications for the preceding 5 years were of a sexual nature and the fact that on an occasion he erroneously believed he was communicating with a person other than the undercover officer, indicates to me that he was surfing the internet to engage in this type of offending, whether it be fantasy or otherwise, to satisfy his sexual gratification that was based in his attraction to young female children.

  6. The Police in identifying offenders of this nature in my assessment are entitled to continue to engage with then after an initial offending communication to establish the extent of the offender’s involvement and potential danger to the community. On each occasion the undercover operative found a willing participant in the offender to commit further offences and take up the three invitations to speak to the putative child.

  7. I take into account the sexual activity the offender sought to procure relevant to count 3 was confined to sexual touching. Mr Funnel submits although the procurement of any form of sexual activity carried the potential risk of seriously damaging the relationship between mother and daughter, the fact that the activity was confined to sexual touching reduces the objective seriousness of count 3. I give that submission little weight in this assessment.

  8. A significant factor in sentencing the offender and assessing the objective seriousness of these two offences is that from at least 12 July 2021 he voluntarily withdrew from the conduct giving rise to counts 2 and 3. On 13 July 2021 he told the operative that he was too busy to talk, and on 29 July 2021 he didn’t reply to the operative’s email. There was no further contact after this between Mr Smith and the undercover operative. This cessation of contact occurred 8 months prior to his arrest.

  9. I accept Mr Funnel’s submission that after taking all of these matters into account, count 2 is located below the mid-range of objective seriousness, with count 3 less serious because of the nature of the sexual activity being procured.

Aggravating Mandatory Factors

  1. In addition to any other matters, the Court must take into account in determining the sentence to be passed (for example, the matter mentioned in s 16A of the Crimes Act), the Court must also take into account the following mandatory factors set out at s 474.29AA(1)(a)-(c):

  • The age and maturity of the victim or intended victim of the offence.

  • If the victim or intended victim of the offence was under 10 when the offence was committed – that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates; and

  • The number of people involved in the commission of the offence (s 474.29AA(1)(c)).

  1. The fact that an intended victim is under 10, as is the case for Counts 2 and 3, is an aggravating factor pursuant to s 474.29AA(1)(b) Criminal Code (Cth.

  2. I note that each of these factors, where relevant, have been considered in the assessment of the objective seriousness of the offences.

s 16A(2)(b) Crimes Act Offence

  1. The nature and seriousness of the s 16BA offence is a relevant consideration in the assessment of the gravity of the whole course of conduct and the need for personal deterrence.

  2. I take into account the language used in the scheduled offence was crude and explicit. The Crown submits that the offending the subject of the scheduled offence augments both the seriousness of the overall course of conduct and the need for personal deterrence and warrants a significantly higher penalty in respect of the primary offence.

  3. I take those matters into account but in the context that the conduct is effectively identical to the material relied upon for counts 2 and 3, I am satisfied any increase in penalty for the principal offence on account of the scheduled offence should be nominal.

Guilty Plea: s 16A(2)(g) Crimes Act

  1. I have earlier set out the earlier history of the matter. On the basis the offender was initially listed for trial on 15 February 2023 but pleaded guilty on 14 August 2023, in the Goulburn District Court the Crown submits his pleas were not entered at the earliest opportunity and entered after the matter had been committed for trial.

  2. I am advised by Mr Funnell, and not challenged by the Crown, that the offender was originally charged with more serious offences to those listed for sentence before me. I am unaware of their nature. He also advises, unchallenged, that the offender at the Local Court offered to plead guilty to the offences he is now to be sentenced. In those circumstances I am satisfied his offer to plead guilty to these offences occurred at an early time in the Criminal Justice process, and before being committed for trial.

  3. The fact that it took place during the Super Call Over process I am satisfied without prescribing a specific percentage reduction of an otherwise appropriate sentence it did advance the interests of justice. His pleas also have a significant utilitarian benefit for the community.

  4. Based on those findings, I propose to sentence him in a manner similar to that applied in accordance with the practice of sentencing offenders in this State. Accordingly, I am satisfied that in relation to each offence he is entitled to a 25% reduction from otherwise appropriate sentences.

Remorse

  1. I am satisfied on the balance of probabilities that his guilty pleas (and any associated evidence) demonstrate the subjective mitigation of genuine remorse, acceptance of responsibility.

  2. His pleas are also relevant on a subjective basis in demonstrating remorse and contrition. The Crown submits this is limited despite the offender communicating to the Sentencing Assessment Report (“SAR” at pages 2 and 3 under headings of “Attitudes” and “Insight”) author that he feels ‘regret and remorse for the hurt his offending has caused his wife and children’ it shows a concern for the consequences only insofar as they relate to him. Ms Pascoe submits he does not indicate a broader understanding of the impact of child sexual abuse and the effect his offending may have had on a real child.

  3. In considering that submission I take into account the observations of Dr Katie Seidler, in her report [63] where she noted:

“Mr. Smith expressed being ashamed and embarrassed as a result of his offending and he impressed as genuine in this. He demonstrated some insight into the reasons why such conduct is both immoral and illegal, including recognising the potential impact on children of such communication and behaviour.”

  1. I also note that Dr Seidler expressed a view that the offender had “sanitised” his behaviour in that “He denied any paedophilic or hebephilic interests in female children.’ [55]. His response would have impacted upon his remorse and understanding of his behaviour but for his acknowledgement in his letter (page 35 Defence Bundle Exhibit 1) that after reading Dr Seidler’s report containing challenging comments by her to some of his reporting wherein he stated:

“It was very confronting reading Dr Seidler's report. I have reflected a lot and I accept her analysis and recommendations and am committed to doing whatever it takes to ensure that nothing like this ever happens again.”

  1. I accept he has experienced significant personal consequences to his relationship with family members and his community that will unlikely abate and impact upon the rest of his life. They are understandable regrets he has. However, Dr Seidler, in her usual professional and objectively refreshing opinions, has provided a report that has challenged the offender’s attempt to explain his behaviour to others and himself.

  2. I accept he has reviewed his response and he is genuinely remorseful and has empathy for children subjected to this type of offending. I will take this into account as a mitigating factor.

Character, antecedents, age, means and physical / mental condition of the offender: ss 16A(2)(m) and (p) Crimes Act

Antecedents

  1. This is set out in detail in Dr Seidler’s Report. He was born in Australia, the younger of two sons to the union of his natural parents. His brother was ten years his senior but has died about ten years ago. The relationship between his parents broke down when he was only about two years of age. He did not have contact with his father again after the family breakdown. His mother raised her two sons as a single parent, and he reflected that this 'wasn't easy' for her. He did spend some time with the paternal family apparently and is aware that he and his father were similar in some ways. The offender added that he felt different to other children growing up because his father was not involved in his life, and this was distressing for him. He understands his father has died but he does not know how or when this occurred.

  2. His mother never remarried but she did re-partner when he was in his mid-adolescence. This man was not a significant figure in his life and although he treated the offender kindly, this man was also apparently a heavy drinker of alcohol.

  3. He described the financial situation for the family as having been 'challenging' but noted his basic care needs were reliably catered for. However, he remembers going without relative to other children, which upset him.

  4. During his childhood he lived with his maternal grandparents on a rural property, whilst his mother worked in town to support the children, only able to come home on weekends. He described his mother as 'fantastic', claiming that she was dedicated to her children and did her best to provide for their needs. He reported that he was close to his mother and to his grandparents and he reflected on the significant loss of his grandmother during childhood.

  5. He was a well-behaved child, who needed little in the way of discipline. His mother died in or around 1994. The offender denied being a victim of abuse or neglect at any time. He also denied a familial history of vulnerability, including that pertaining to antisociality, mental illness or significant substance abuse.

  6. He moved out of the family home at about the age of 18 to follow a job opportunity and has been independent since and resides with his wife in a property they own.

  7. He was educated within the public school system attending two primary schools, and one secondary school. Overall, he recalled his school experience in positive terms. He claimed to have enjoyed learning and was active in a range of sporting pursuits during these years. He achieved well academically. He denied any concerns in relation to his school attendance or behaviour, and he was apparently never in receipt of any serious school discipline, including that for sexual misconduct.

  1. After leaving school, the offender completed his three years training to become a Registered Nurse, completed onsite through the hospital. He has not engaged in any other formal educational programming.

  2. He was first employed at ten years at the local corner shop. He worked with his brother for a time and in customer service at a local theatre. His first professional role was as a teller in a bank, and he did this for about two years, before going on to an office administration role for the Prime Minister's Department, which he did for a similar time. He reported he then took up a clerical role at Kenmore Hospital and it was at this hospital that Mr. Smith trained in nursing.

  3. He commenced employment as a mental health nurse in or around 1967 and then in 1983, he moved into nursing for people with disabilities in residential care. In total, the offender worked at the hospital in nursing for almost 50 years before retiring. He is now supported by the aged pension.

  4. He has never been terminated from employment, nor has he been the subject of any workplace complaints or grievance procedures.

Physical and Mental Health

  1. The offender’s past medical history is rather unremarkable, but it is evident that his current physical health is complicated.

  2. He currently suffers the following medical issues he reported to Dr Seidler and as are confirmed by his treating doctors (see Exhibit 1) .

  • Achilles Tendonitis in both heels.

  • A knee replacement about nine years ago, which he has recovered from reasonably well.

  • He is currently on a waiting list for a left hip replacement.

  • Suffers with Dupuytren's Contracture in both hands that requires surgical intervention. He is on the waitlist for this operation. He suffers with pain and limitations in movement because of this condition.

  • Suffers with Gastric Reflux.

  • Has been diagnosed with Gout.

  • His prostate is enlarged.

  • He has macular degeneration and cataracts.

  1. Consequently, he is treated with several medications at present. These are set out in detail in Dr Seidler’s report [30] and confirmed in the reports from his treating doctors.

  2. He is taking psychotropic medications prescribed by his General Practitioner. He consulted with a psychiatrist in 2022 and was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depression.

  3. He is presently closely monitored and managed by several medical professionals.

  4. He has no reported history of neurological insult or minor head trauma, such as seizures or losses of consciousness.

  5. He has no history of drug, alcohol, or gambling addictions.

  6. He denied ever being an active participant within an antisocial subculture and therefore, the people he considers as friends are those that are prosocial in both their orientation and activities. He also denied ever being involved with sex offender networks, either online or in the offline world. However, he acknowledged having used the Internet to engage with others sexually in the period leading up to his offending.

  7. He has been involved in two serious intimate relationships in his life and both have involved marriage. The first relationship began in about 1973 with the couple marrying two years later and remaining together for a further five years. He denied any violence or infidelity in his first marriage.

  8. He has one daughter from his first marriage, and three grandchildren from his daughter. He has two granddaughters and a grandson, who now range in age from 21 to 25 years. He shares a 'great' relationship with his daughter, but he does not see her often as she resides in Queanbeyan although they are in regular contact.

  9. He met his current wife when she, too, worked in nursing at the same hospital he did. The pair began a relationship in 1983 and were married in 1985. He described the relationship with his wife as 'fantastic' until being arrested for the present offences. His wife needed some 'time away' from him to consider how she was feeling but has returned and remains supportive and committed to the marriage. I note she has been in court for the sentencing hearing.

  10. They have a son with whom he remains very close. His wife has two daughters from a previous relationship, who were ostensibly raised with him from the ages of five and eight years. They have severed contact with him since the offences came to light which is a source of disappointment for him.

  11. He described his sexual interests, to Dr Seidler, as mainstream and outside of his offending, he denied any interest or engagement in deviant or otherwise non-mainstream sexual practices, including transvestism, exhibitionism, sadomasochism, voyeurism, or bestiality. Further to this, the offender denied the presence of any sexual fetishes.

  12. Dr Seidler questioned his claim that his sexual fantasy was age and theme appropriate, and he denied any sexual fantasies involving sexual thoughts of children, even during the period of his offending. She noted [54] that she found “this unlikely based on the examples of the chat he engaged in, as outlined in the Facts of this matter”.

  13. She also questioned his denial of any paedophilic or hebephiliac interests in female children and commented, “Again, I find this unlikely on the basis of his offending behaviour and suggest that Mr. Smith's account to me was sanitised in this regard.” [55]

  14. Dr Seidler reports the offender described:

“a significant loss of coping and a decline in his mental health and functioning post-retirement. Mr. Smith described how he felt as if retirement marked the end of a stage in his life and that he was 'getting close to the end' and would ostensibly die soon. Mr. Smith reported that he descended into depressed associated with ruminating about death and dying and this was associated with hopelessness, despondency, impaired concentration, as well as a reduced sense of pleasure. Mr. Smith also reported that was lethargic and struggling with amotivation and increased food intake.” [66]

  1. The offender claimed this depression persisted from 2016 until he engaged in psychological treatment in 2022 in the aftermath of his arrest, with a psychologist in the Goulburn area, Mr. David Gorovic, and with whom he has consulted since and whom he says has 'changed (his) life' and encouraged him to 'live in the here and now'. He began consulting with Mr. Gorovic in about April 2022 having sessions monthly until February 2023, but sine has not had a need for psychological treatment.

  2. Dr Seidler opines [107 dot point 4]:

“It is my assessment that at present, Mr. Smith would not meet criteria for any diagnosable psychological condition and there was no evidence on assessment of neurocognitive issues, other than those associated with the normal aging process. However, it is suggested that in the period leading up and during Mr. Smith's offending period, in addition to that in the aftermath of his arrest, he would have met criteria for an Adjustment Disorder with Mixed Anxiety and Depression.”

Age

  1. The offender was aged 72 years at the time of count 1, and 77 years at the time of counts 2 and 3. He will turn 80 this year on 7 April. He has no relevant criminal antecedents.

  2. Both parties have referred me to the principles to be applied when assessing the impact of age in the sentencing process in Liu v R [2023] NSWCCA, Campbell J at [39] (Adamson JA and McNaughton J agreeing) affirmed the principles applicable to the significance of advanced age in sentencing as stated by Steytler P in Gulyas v Western Australia [2007] WASCA 263 at [54].

  3. They include any reduction in moral culpability by reason of advanced age coupled with a factor such as an age-related mental impairment. According to Dr Seidler at [89]:

“It seems that he experienced a catastrophic loss of coping after that time, such that he descended in to depressed mood, he became preoccupied with death and dying and experienced ongoing anxiety in relation to his future. This, in addition to the changes in his life and identity that went along with retirement, were very challenging for Mr. Smith and he found his internal experiences (thoughts and feelings) in this context intolerable. To this end, Mr. Smith reported turning to online chat rooms in order to distract from his thought processes and seek some ‘release’ both cognitively and emotionally. It was within this context that Mr. Smith offended. Mr. Smith reportedly found the focus on sexual thoughts, feelings, and behaviour, through his online activity, soothing and distracting and this motivated him to engage online with others for sexual chat. Through this process, he became variously interested in and aroused by various sexual themes and topics, including for a time, the sexual abuse of children in the context of mother-child incest [emphasis]”

  1. Where there is evidence sufficient to justify a conclusion that the circumstances associated with advanced age such as ill health and general age reflated frailty to make a custodial sentence more onerous than normal. In this respect I have the evidence of the offender in his letter to the court and the medical reports from his treating doctors. He suffers from a multitude of physical ailments some of which he is awaiting operations.

  2. The Crown has tendered in evidence a publication entitled ‘Overview of Services’ issued by Justice Health and Forensic Mental Health Network as of 7 September 2022 that outlines the overall medical services that organisation provides prisoners in custody. I accept it is a comprehensive program that can generally and adequately deal with prisoners’ medical needs. I have no specific evidence how the offender’s prospective and pending surgeries could be accommodated. I am aware that the objectives as set out in the document are generally met but experience has demonstrated at times can be more aspirational than realistic in its application.

  3. Dr Seidler opined (109):

“….he will need ongoing close medical management. It is respectfully noted that Mr. Smith will be unlikely to be prioritised for any form of treatment in prison, nor is it likely that he will receive the level of medical management that he requires in gaol. As such, it is suggested that incarceration can offer Mr. Smith little in terms of rehabilitation, although I acknowledge the need for deterrence and punishment.

I am also aware that there are restrictions upon the medications allowed to be provided to prisoners because of the fear they will be stood over, stolen from, and used as currency within the gaol institutions. I have no evidence before me as to whether any restrictions will be imposed on providing the offender with his required medications. Without a positive assurance from Justice Health there will be no restrictions I must proceed on the basis or probabilities there is a real possibility this may occur.”

  1. I accept irrespective of any capacity to appropriately manage the offender’s illnesses, disabilities (mental and physical) and medical treatment in the context of his age that the nature of his custody will be far more onerous than that of a “normal” person in the general mix of the prison population. I accept this is a factor that should be taken into account as a mitigating factor.

  2. In taking into account his age and ill health I accept the sentence must also address the seriousness of the offences measured by my assessment of their objective seriousness, but acknowledging the need for denunciation and general deterrence and any sentence imposed should not give an expectation that an older person can offend with relative impunity.

  3. I also take into account, in view of his age, that the length of any custodial sentence imposed upon the offender will have a greater impact upon his life expectancy than would for a younger offender/prisoner.

Good Character

  1. Good character has less mitigating impact when sentencing for offences of this nature. However, I am satisfied the offender who has led a relatively crime free existence until his commission of the first of these offences is entitled to the extension of a degree of leniency to recognise such a lengthy pro-social life.

  2. In addition, the offender made substantial positive contributions to his employment in mental health nursing, as set out in the initiatives he introduced in his working life (see his letter page 34 Defence Bundle). Furthermore, he has made lifelong voluntary contributions to sporting organisations in his local area. He has not only been a person of prior good character but has positively contributed to his community. (See also page 34)

  3. I propose to take into account his prior good character recognising the factors I have identified as significant. I will also take it into account when assessing his prospects of rehabilitation.

Specific Deterrence

  1. I am satisfied there is no need for specific deterrence to be emphasised in the sentence imposed. I am satisfied the offender has had sufficient deterrence because of his being charged and processed through the criminal justice system. He is aware now of the consequences it has had upon him personally and that members of his family no longer associate with him. He will be placed on the Sex Offender’s Registry that will further curb his associations and behaviour in the community.

General Deterrence

  1. General Deterrence still has a role to play in sentences imposed for this offending to ensure other likeminded offenders are deterred.

  2. Offences of these types are increasingly prevalent in the community. The widespread use of mobile devices and other portable electronic devices provides a forum for offending which can be difficult to detect but can be committed with relative ease.

  3. I accept the Crown’s submission that the sentence imposed must make clear to other like-minded persons within the community that these types of offences are abhorrent and that offenders will be met with condign punishment to reflect the community’s attitude to the sexual exploitation of children. Deterrence and denunciation are important even in the case of an offender of advanced age, and the punishment imposed must still reflect the seriousness of the crime.

  4. I am satisfied these objectives can be attained in the sentences I intend to impose.

Prospects of rehabilitation and risk of re-offending: ss 16A(2)(n) and 16A(2AAA) Crimes Act

  1. Pursuant to s 16A(2AAA) of the Crimes Act, a Court sentencing an offender for a Commonwealth child sex offence must take into account, in addition to any other matters, the objective of rehabilitating the person. This includes whether it is appropriate when making an order to impose any conditions about rehabilitation or treatment options and, in determining the length of any sentence or non-parole.

  2. It has been recognised by the courts that a voluntary cessation of offending, as was the case here, is a recognition by the offender of the illegality of the previous offending and indicating a desire to rehabilitate.

  3. In considering his prospects of not reoffending I take into account that Dr Seidler conducted several tests that provide guidance in predicting future offending of this kind. She subjected him to the Static 99R actuarial test; the RSVP test and the SAPROF-SO a structured professional judgement tool. She identified several protective factors and opined in respect to the Case Note Psychologist assessments the following [106]:

“Taking into account the aforementioned risk and protective factors, it is my assessment that Mr. Smith poses an overall low risk of sexual recidivism. I note that he presents with a number of salient protective factors, with less risk factors. The most protective factors in this case are Mr. Smith's advanced age, his pro-sociality and his lack of sexual offending history and his stable network of prosocial peers and a committed, long term intimate partnership.”

  1. And,

“Taken together, there is limited evidence for the ongoing expression of risk in this case, in relation to which there is little evidence for risk associated with contact offending for Mr. Smith. As such, if his risk were to manifest in the future, it seems most likely that this would be in relation to a similar technology-based offence.”

  1. Dr Seidler further opined [108]

“Mr. Smith is an elderly gentleman, whose lifestyle has been one of general stability and pro-sociality. He has come to sexual offending later in life and his assessed level of risk suggests that he poses a low risk of recidivism. Taken together, it is suggested that Mr. Smith does not need to be prioritised for intervention in order to manage his risk. However, he would benefit from psychological treatment designed to increase his insight into the antecedents to his offending behaviour, as well as improving his capacity for emotional intimacy and addressing any deviant sexual interests and avoidant coping skills. I do not believe that Mr. Smith requires a comprehensive sexual offence specific programme of intervention and rather, his needs will be best met within individual treatment specifically tailored to meet his needs. It is recommended that Mr. Smith's needs would be best addressed by a forensic clinician, who has experience working with sexual offenders. This treatment may also be able to assist Mr. Smith in further resolving issues associated with identity and the changes in his life since retirement, supporting the work he has already done in this regard with his previous treating psychologist.”

  1. And [109]

“Mr. Smith does not require interventions in any other domain in order to address his criminogenic risks. However, it is recommended that Mr. Smith would gain from encouragement to establish a meaningful personal routine post-retirement.”

  1. I note the SAR has attached to it a Static 99R test result that is consistent with those obtained by Dr Seidler.

  2. I am aware in my experience that because of his assessment of reoffending he will not be placed into sex-offence programs in the Corrective Services institutions. I am satisfied his successful rehabilitation is more likely to be achieved by his attending appropriate programs in the community.

  3. He initiated seeing a psychologist whilst on remand. I take that into account as a positive indication of his desire to understand his offending and to rehabilitate.

  4. I am satisfied on the above material and considerations that he will not reoffend and has excellent prospects for achieving a successful rehabilitation.

Hardship to Others

  1. I have not received any evidence to suggest the offender’s family will suffer any hardship if he is incarcerated other than the fact his wife may have to move to Canberra for assistance after her prospective operation. I have evidence before me he and his wife, his son, and his daughter have a positive relationship and they will miss his emotional participation in the family unit. I will take those matters into account in the general mix of subjective factors.

Comparative Cases

  1. I have been referred to several comparative cases by the Crown. Whilst I accept, they provide guidance identifying the principles in sentencing for offences of this kind I accept Mr Funnell’s submissions that they are otherwise not comparable in respect of subjective factors and in one case, a different offence. Each case is determined on the relevant facts, assessment of objective seriousness of the offending and particulars relevant to the offending.

SENTENCING PRINCIPLES

Totality

  1. The Court should impose a separate sentence on each charge and direct when each sentence is to commence (s 19(2) the Crimes Act). Given the need to sentence for three offences, consideration must be given to the sentence appropriate for each individual sentence, before turning to questions of concurrency/accumulation and issues of totality.

  2. There is a presumption in favour of cumulative sentences when sentencing an offender for multiple Commonwealth child sex offences (s 19(5) Crimes Act (Cth)

  3. Pursuant to section 19(6) of the Crimes Act, I am of the view having regard to totality and the overall severity of the offending involved in this matter, that it is appropriate to partially concurrent sentences. I accordance with s 19(7) of the Crimes Act (Cth) the reasons available in the present case, that ensure the overall sentence reflects the total criminality for both offences, it is accordance with the Crown’s acceptance that a degree of cumulation between Counts 2 and 3 is warranted. While the Crown concedes some overlap, I accept that each Count is directed at separate and distinct aspects of the offending which must be acknowledged in the sentencing. I also note there is a significant temporal separation between Count 1 and Counts 2 and 3.

  1. The Court may only impose a sentence of imprisonment if satisfied that imprisonment is the only appropriate sentence.

  2. Whilst the Crown notes the advanced age of the offender and submits that it should be taken into account in the instinctive synthesis process it submits given the objective seriousness of the offending, the need for deterrence and the need to protect the community, a term of immediate imprisonment is the only appropriate sentence.

Presumption of Immediate Imprisonment: s 20(1)(b)(ii) Crimes Act

  1. For child sex offences committed on or after 23 June 2020, s 20(1)(b) imposes a presumption in favour of an actual term of imprisonment unless there are exceptional circumstances that justify the offender being released immediately on a recognisance release order. This amendment is intended to ensure ‘that child sex offenders receive sentences that reflect the exceptionally serious nature of their crimes’.

  2. What constitutes exceptional circumstances is deliberately not defined. In R v Tootell ex parte AG [2012] QCA 273, when interpreting a similar provision to s 20(1)(b)(ii) in the Penalties and Sentences Act 1992 (QLD), the Court stated that to be exceptional, a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely or normally encountered. I accept the word “exceptional” is a stringent requirement.

  3. The Crown submit the Court must undertake a reasoning process to determine whether circumstances are so exceptional as to warrant imposing a non-custodial sentence, in all the circumstances of an offence. This requires considering both the objective seriousness of the offending and the need for general deterrence.

  4. The Crown submits that, given the seriousness of the offending, the offender’s age does not constitute an exceptional circumstance. The Crown submits that the offender’s age should be taken into account only in the mix of subjective factors, as the court did in sentencing a 68-year-old offender in Mertell v R [2022] ACTCA 69 and as set out above at [29] to [32].

  5. Mr Funnel concedes the effect of s 20(1)(b)(iii) is that where a person is convicted of at least one Commonwealth child sex offence and the Court determines that imprisonment is appropriate, it must not direct the immediate release of the person unless satisfied that exceptional circumstances exist. He concedes on behalf of Mr Smith that imprisonment is the only appropriate penalty for counts 2 and 3.

  6. Mr Funnell submits an ICO is available for count 2 as it is not a prescribed sexual offence. The Crown agree it is available but not appropriate for an offence of this seriousness and custodial sentence is the appropriate disposition for that offence. However, he concedes count 3 is a prescribed sexual offence pursuant to s 67 of the Crimes (Sentencing Procedure) Act 1999, and accordingly an ICO is not an available penalty. As imprisonment is conceded for count 3, the Court must impose an immediate sentence of imprisonment unless satisfied that exceptional circumstances exist.

  7. Both parties have addressed me as to whether exceptional circumstances exist in respect of this offender. The Crown submits they do not. Mr Funnell submits, and I accept that special circumstances can arise out of the presence of a combination of factors that if considered separately would not in themselves be exceptional. He relies on the following combination of as constituting exceptional circumstances with respect to count 3:

  1. The sexual activity sought to be procured was confined to sexual touching.

  2. The unsophisticated manner of offending including that Mr Smith took no steps to conceal his identity.

  3. The duration of the offending was largely attributable to the persistence of the undercover operative.

  4. The limited number of communications – three – with the putative child.

  5. Mr Smith voluntarily withdrew from the offending eight months prior to his arrest.

  6. The advanced age and medical conditions of Mr Smith, making custody significantly more onerous for him.

  7. The likelihood that custody may exacerbate his medical conditions, such that he would have no meaningful expectation of useful life after release.

  8. This would be his first time in custody.

  9. The absence of any relevant criminal antecedents.

  10. The candour Mr Smith ultimately demonstrated when being assessed by Dr Seidler, including an acknowledgement of some interest in deviant sexual themes; and

  11. The low risk of re-offending as identified in both the Sentencing Assessment Report and by Dr Seidler.

  1. I agree with Mr Funnel’s submission. I am satisfied that “exceptional circumstances” are established by a combination of the identified factors.

SENTENCE

  1. Mr Smith if you would please stand. In respect of each offence, I convict you and acknowledge your acceptance of guilt in respect of the offence on the Schedule.

  2. I sentence you as follows:

  3. In respect of Count 1 taking into account my assessment of the offending behaviour and the subjective factors I am satisfied you can be dealt with by a non-custodial sentence. You are to enter into a recognisance release orders pursuant to s20(1)(a)) to be of good behaviour for a period of 6 months from today.

  4. In respect of Count 2 and taking into account the offence on the s16BA Schedule I sentence you to a term of imprisonment of 18 months. That sentence is to commence from today.

  5. As the sentence is less than 2 years, I have been asked to consider whether you should be dealt with by an Intensive Correction Order pursuant to an application of s 20AB Crimes Act 1914 (Cth) and/or reg 6 Crimes Regulations 1990 (Cth). An Intensive Corrections Order will allow you to serve that sentence in the community. I note the Crimes Amendment Regulations 2010 (No 4) (Cth) amended reg 6 Crimes Regulation 1990 (Cth) enables an Intensive Corrections Order to be imposed for a Commonwealth offence.

  6. In doing so I am to give primary consideration to the protection of the community and those matters required to be addressed by s66 Crimes (Sentencing Procedure) Act. I have also considered the purposes of sentencing as set out in s3A of that Act.

  7. I am satisfied you are not a threat to the community and its protection and the objectives in sentencing you for this offence can be achieved by placing you on an Intensive Corrections Order for 18 months from today. It will expire on the 5 November 2025. The standard conditions will apply.

Additional Conditions

  1. You are to report to the Community Corrections Office at Goulburn within 48 hours and make an appointment to receive instructions as to the management of the Intensive Corrections Order.

  2. You are to present yourself for a consultation with the NSW Psychiatrist to be assessed in respect of any treatment deemed appropriate to address your offending or any underlying psychological mental health issues.

  3. You are to comply with all reasonable directions and rehabilitation programs determined appropriate by the NSW Psychiatrist and/or the proper officer at the Goulburn Community Corrections office.

  4. You are to provide a copy of Dr Seidler’s report to the NSW Psychiatrist and Goulburn Corrections Office. I recommend they implement Dr Seidler’s recommended treatment plan.

Consequences

  1. If you fail to comply with the conditions or you commit any further offending, you will be in breach of the Intensive Corrections Order and it is likely you will go into custody to serve the sentence. You will go before the Parole Board who may set a non-parle period. You will not come back before a judge.

In respect to Court 3

  1. I sentence you to a term of imprisonment of 2 years to commence from today and expire on the 5 May 2026.

  2. On entering into the recognisance release order you are to be immediately released (pursuant to s 20(1)(b)) upon you agreeing to be bound over to be of good behaviour in the sum of $500.00, deposit not required. That is a promise pursuant to section 21B Crimes Act

  3. In addition, pursuant to section s20(1B) of the Crimes Act you are:

  1. To appear for sentence in respect of any breach within the period.

  2. For the period of the order to be supervised by the Community Corrections Office and obey all their reasonable directions.

  3. Obey all reasonable directions of the probation officer; and

  4. Not travel interstate or overseas without the written permission of the probation officer; and,

  5. Undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

  1. You will be subject to a child prohibition order that in my experience are proactively and stringently enforced. Failure to adhere to the requirements will in most cases lead to a custodial sentence and a breach of the recognisances I have released you on.

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Decision last updated: 26 June 2024

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Cases Citing This Decision

1

R v Wood (a pseudonym) [2024] NSWDC 677
Cases Cited

4

Statutory Material Cited

4

Gulyas v The State of Western Australia [2007] WASCA 263
Mertell v The King [2022] ACTCA 69
R v Jarrold [2010] NSWCCA 69