R v Sturt (a pseudonym)

[2022] NSWDC 155

District Court

New South Wales

Medium Neutral Citation:

R v Sturt (a pseudonym) [2022] NSWDC 155

Hearing dates:

26 April 2022

Date of orders:

26 April 2022

Decision date:

26 April 2022

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Orders at [58]

Catchwords:

SENTENCING – bestiality – dog – man’s best friend – Ollie the dog knots and rims offender – child pornography – form 1 offences – prior good character – upstanding citizen – excellent prospects of rehabilitation – genuine remorse

Legislation Cited:

Crimes Act1900

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act1985

Firearms Act 1996

Cases Cited:

DPP v Garside [2016] VSCA 74

DPP v Smith [2010] VSCA 215

DPP v Walton [2020] VCC 1839

DPP v Zarb (2014) 46 VR 832

Minehan v R [2010] NSWCCA 140

Mouscas v R [2008] NSWCCA 181

R v Anning [2014] NSW DC 359

R v Booth [2009] NSWCCA 89

R v De Leeuw [2015] NSWCCA 183

R v Mammone [2006] NSWCCA 138

R v Miao [2016] NSWDC 181

R v Porte (2015) 252 A Crim R 294

Category:

Sentence

Parties:

Regina
Charles Sturt (a pseudonym)

Representation:

Counsel:
Mr John Davidson (offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Cater & Blumer Solicitors (offender)

File Number(s):

2021/00068869

Publication restriction:

Non-publication order for the identity of the offender

EX TEMPORE JUDGMENT

INTRODUCTION

1. Charles Sturt is to be sentenced for a single charge of bestiality, contrary to s 79 of the Crimes Act1900. The maximum penalty is 14 years imprisonment.

2. There are a number of other related offences on a s 166 certificate. They are as follows:

1. possess unauthorised firearm, contrary to s 7A(1) of the Firearms Act1996. The maximum penalty is 5 years imprisonment.

2. supply prohibited drug more than the indictable quantity but being equal to or less than the commercial quantity, contrary to s 25(1) of the Drug Misuse and Trafficking Act1985. The maximum penalty is 15 years imprisonment.

3. disseminate child abuse material contrary to s 91H(2) of the Crimes Act 1900. The maximum penalty is 10 years imprisonment.

4. possess child abuse material contrary to s 91H(2) of the Crimes Act 1900. The maximum penalty is ten years imprisonment.

3. Further, there are two charges referable to the possession of the unauthorised firearm (sequence 2) that are to be taken into account on a form 1.

4. The maximum penalties are important guideposts in the assessment of the sentence. A sentencing judge should steer by the maximum penalties, but not aim for them.

PLEA OF GUILTY

5. A plea of guilty was accepted by the local court magistrate in committal proceedings for the offences. As such, the offender is entitled to have his sentence reduced by 25% for his early plea in accordance with s 25D(2)(a) of the Crimes (Sentencing Procedure) Act1999.

THE FACTS

6. There is an extensive agreed facts document. In summary, the facts are these:

7. The offender was experiencing problems with his computer. He contacted a computer technician on 4 March 2021 for assistance. The technician backed-up the files on the computer to a hard drive. When re-downloading the files back onto the computer, the technician located child abuse material. The police were contacted.

8. There were security measures in place making it difficult to access the video files, however during an immediate inspection police were able to access two video files, including one of a pre-pubescent male, handcuffed from his wrist to his ankles, subject to penile-anal sexual abuse.

Firearms Offences

9. Police executed a search warrant at the offender’s residence on 10 March 2021. They located a ‘Gamo’ .177 calibre air rifle hanging on the wall. The firearm was not registered, and the offender did not have a current firearms licence. By hanging on the wall, it was not safely stored.

Supply Offence

10. Police located a clear resealable bag. It contained a white crystallised substance. The offender stated it was “meth”, but it was for personal use, and it cost him around $1600. The bag was weighed at the scene and returned a reading of 4.89 grams. Police located a further resealable bag with a crystallised substance. This weight was 1.91 grams. The contents of both bags were tested and returned positive readings for methylamphetamines.

Child Abuse Material

11. USBs, mobile phones, electronic tablets, DVDs, CDs, magazines and handwritten paperwork containing usernames and passwords for chatroom sites were seized by police. A detailed examination of the offender’s mobile phone was conducted. He used a chat room/file sharing application called ‘Telegram’. On the Telegram application, the offender communicated with a user by the name of ‘Leeton Ron 2’, later identified as the co-offender, Ronald Harrison.

12. The offender and Harrison had been participating in consensual sex. They also exchanged child abuse material with one another and purchased and used methylamphetamine.

13. On 11 July 2020 the offender sent ‘Leeton Ron 2’ seven videos of prepubescent males involved in sexual acts, including oral and anal sex, with adult males. These were classified using the Interpol Baseline as category 1 child abuse material, in that it depicts a real prepubescent child and the child is involved in a sex act.

14. On 2 October 2020 the offender was communicating with user ‘Melb Gary’. The offender asked the user if they were a “Perv too?”, to which the user responded in the affirmative. The offender invites the other user to send him “perv stuff” and to join a “perv group”. The offender then sends a 6 minute and 41 second video of a blindfolded prepubescent male handcuffed to the rear, being sexually abused orally and anally.

15. On 18 December 2020 the offender sent eight further videos to ‘Leeton Ron 2’ depicting prepubescent males being subject to sexual abuse. One video contains two young prepubescent males being coerced by the person operating the video camera into conducting sexual acts on each other. These videos were classified as being Interpol Baseline category 1 child abuse material.

16. A review of the offender’s mobile phone records 13,394 images. Investigators reviewed approximately 4,500 of the images and at least 60% of them have been classified as Interpol Baseline category 1 child abuse material. Similarly, of 3,226 videos on the mobile phone, investigators have reviewed approximately 1,000 and at least 30% have been classified as Interpol Baseline category 1 child abuse material. These appear to have been received via mobile phone applications and downloaded from the internet.

Bestiality

17. On 14 July 2020, the offender communicated with a user on the instant message service ‘WhatsApp’. The offender sent a message stating, “Ollie knotting in daddies arse. Not real good photography but gives you an idea”. Images of a dog licking the anus of an adult male and of a dog penetrating the anus of the same male follow.

18. The offender sent a further image of a dog’s penis as an MMS message to a different mobile phone number on 24 July 2020. On 3 November 2020, and 13 February 2021, the offender engaged in communication regarding sexual activity with the dog with different WhatsApp users.

19. Investigators reviewing the offender’s mobile phone discovered a video created with the offender’s mobile phone titled ‘Ollie rim me’ and a depicts a dog licking the anus of an adult male.

OBJECTIVE SERIOUSNESS

20. The charged offence does not have a wealth of comparative cases from which sentencing principles are espoused. As such, it is difficult to assess objective seriousness in comparison to other like offences. The seriousness of an offence must of course be assessed objectively, and I must not allow a sense of disgust to lead to an inappropriately severe sentence: R v Miao [2016] NSWDC 181.

21. From the limited caselaw available, I consider that the following factors are relevant to the assessment of objective gravity in relation to the charged offence:

1. The level of additional harm or further injuries suffered by the animal in question: DPP v Walton [2020] VCC 1839. In this case, there is no evidence to suggest there was any form of additional cruelty inflicted on the animal during the incident.

2. The nature of the sexual act that occurred. In this case, the conduct was captured in the images/video and include a dog licking the anus of an adult male and a dog penetrating the anus of the same male.

3. The length of time that the behaviour occurred. The incident in this matter appears to be brief.

4. Mr Davidson, counsel for the offender, submits that the bestiality offence was committed on a single occasion and was not repeated. I accept this submission but note that the discussion of sexual activity with the animal, and the sharing of the images produced, was repeated.

5. The level of planning involved. Mr Sturt states that the encounter was not planned, that there was an iPad on the floor and the dog came while he and his co-offender were sharing methamphetamine. I accept that there was very little planning involved.

6. The course of criminal conduct and surrounding circumstances of the offence. Certainly, an offence of bestiality committed in connection with the sexual abuse of a child, as was in the case in R v Anning [2014] NSW DC 359, would be considered more objectively serious than the present offence.

22. Considering these factors, I assess the bestiality offence as falling below what I consider to be the mid-range of objective seriousness.

23. In relation to the child abuse material offences, the factors in Minehan v R [2010] NSWCCA 140 at [94] have bearing on the objective seriousness. In this instance, actual children were used in the creation of the material. Given the classification of most of the material being Interpol Baseline category 1, and the descriptions included in the statement of facts, the content of the material is of a grave nature and includes coercion of the children involved.

24. The volume of the material was large, with thousands of images and hundreds of videos. The purpose of the offender’s possession was for his own use and for distribution via internet chatrooms. From the statement of facts, it appears that the material was only distributed to two other users. There is nothing to suggest that the offender received any payment for the material, but he did engage in an exchange of material. There is some indication that there was a degree of planning in the storage and transmission of the material, given the difficulties police originally encountered accessing the video files and the use of an encrypted application to transmit the material. However, this does not seem to be sophisticated.

25. I am of the view that the child abuse material offences are above the mid-range of objective seriousness.

26. In relation to the firearms offences, the firearm in question was an air rifle that had been in the offender’s possession for some decades, first in relation to its use in respect of his farming activities, and later when it was given to his son. I accept the submission that it was not in his possession for any sinister purpose.

27. The offender also asks that I take into account on sentence, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999, two offences listed in a Form 1, namely possessing an unregistered firearm, contrary to s 36(1) of the Firearms Act1996, and not keeping a firearm safely, contrary to s 39(1)(a) of the Firearms Act 1996. The maximum penalties for these offences are 2 years imprisonment and 12 months imprisonment, respectively. The offences are referrable to the offence of possess unauthorised firearm.

28. I note that having availed himself of this arrangement, the offender has the benefit of not facing separate punishment for the additional offences. I have reviewed the principles enunciated in Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518.

29. The Court is to impose a sentence for the totality of the criminality before it, reflected in both the offence which the offender is to be sentenced, and the offences taken into account. This may mean that the sentence passed is greater from that which would have been appropriate for the principal offence standing alone.

30. The fact that matters on a Form 1 are to be taken into account means that greater weight should be given to personal deterrence and retribution. As part of the instinctive synthesis approach to sentencing, the Court takes the Form 1 matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted. I consider the firearms offence to be at the lower end of objective seriousness.

31. In relation to the offence of deemed supply of a prohibited drug, the offender told police that the drugs were for his own personal use. This is reflected in the subjective material that has been tendered to the Court. It was shared with his wife and with the co-offender.

32. I accept that there was no financial gain or commercial motive associated with his actions, and his supply of the prohibited drug is limited to circumstances outlined in the subjective material. I assess this offending as falling at the lower end of objective seriousness.

SUBJECTIVE CIRCUMSTANCES

33. The offender has given evidence before me and confirmed his 85-paragraph statement. He was not cross-examined.

34. I have before me a report of Dr Anthony Samuels, forensic psychiatrist, dated 30 July 2021. It discloses that the offender was born into a farming family in the Hunter Region of New South Wales. At the age of 14, he met his wife before he won a farming exchange scholarship to Canada. Upon his return from Canada, he married his wife and moved to Leeton.

35. Unbeknownst to the offender, his wife had suffered sexual abuse within her family. As a result, she and Mr Sturt did not have a satisfactory intimate relationship. She did not like sex and felt scared by it. Mr Sturt blamed himself for these issues, and it was not until much later in their lives that he discovered the trauma his wife experienced.

36. Approximately eight years ago his wife sought psychological assistance from a therapist in Bondi Junction; he would accompany her but was not present in the consulting room. It was while he was in Bondi Junction that he caught up with a friend to whom he shared his distress about his wife’s situation. This person gave the offender some “Chinese herbs and a pipe” to calm him down. Mr Sturt was naïve to prohibited drugs and the substance did calm him down. He persuaded his wife to try the substance. In his statement, Mr Sturt explains that it had a profound impact on their sexual relationship, and it was the first time that he had seen her enjoy sex. It was only later that he discovered that the substance was in fact a derivative of methylamphetamine. It is against this background that Mr Sturt’s regular use of methamphetamine began.

37. He used methamphetamine once a week with his wife. He formed a friendship with his co-offender online. They met in person and engaged in homosexual relationships. They met approximately once per week and shared methamphetamine. The offender also used methamphetamine during various online interactions.

38. Dr Samuels opines that the offender might have had some bisexual tendencies with some latent paraphilic interest which only became prominent when he began consuming methamphetamine. The offender is clear that he accepts responsibility for his actions but explains that he would never have considered engaging in this conduct prior to his uptake and use of methylamphetamine. I accept this explanation and am of the view that the offender’s moral culpability is reduced by virtue of his drug use.

39. The offender and his wife were not able to conceive and adopted two children, both now adults. His wife suffers from dementia, and, prior to his arrest, he was caring for her at home. Upon his arrest, she had to move to Brisbane for their son to continue caring for her.

40. When he initially went into custody Mr Sturt felt suicidal from the shame and guilt of the offences. He has been prescribed antidepressants and feels that he has been greatly assisted by his faith. He has been actively involved in the Junee Correctional Centre Chaplaincy Team. His involvement in this earned the respect of fellow inmates, and I have received a letter from David Leishman who described the offender as selfless, compassionate, and sincere.

PRIOR GOOD CHARACTER

41. Mr Sturt is a 78-year-old man with no prior convictions. The subjective material tendered in these proceedings reveals that, prior to his offending, Mr Sturt was an upstanding member of his community. He has engaged in volunteer work with numerous community organisations spanning decades, including as a volunteer exhibitor, steward, and judge for the Royal Agricultural Society of New South Wales, and a volunteer driver for the Leeton Community Transport organisation among others. He has held senior positions in several organisations. He was the chair of Rotary Australian Benevolent Society (Eastern Region) for four years, and has twice held the position of president of Rotary. He was the president of the New South Wales and Australian Gelbvieh Association. He is also an elder of the Presbyterian church and has been an active member for over 40 years.

42. The offender has been the recipient of numerous awards relating to his community service work including the ‘Leeton Shire Citizen of the Year’ award in 2018, the ‘Paul Harris Fellow Award’ and the “Paul Harris Sapphire Pin’ for his involvement in Rotary.

43. Lack of criminal history and prior good character are mitigating factors on sentence: s 21A(3)(e)-(f) Crimes (Sentencing Procedure) Act1999. However, with child abuse material offences, there is a need for the Courts to recognise the harm done to children who are abused and exploited in order to continue the production of that material and affirm that it is not a victimless crime: R v Porte (2015) 252 A Crim R 294. With this general deterrence is the primary consideration: R v Booth [2009] NSWCCA 89; Mouscas v R [2008] NSWCCA 181.

44. Mr Sturt is entitled to rely on his prior good character as mitigating factor on sentence. I have given weight to the fact that he is almost 78 years of age without any convictions, and he has had over 50 year of volunteer work.

PROSPECTS OF REHABILITATION

45. Dr Samuels is of the view that the offender has a low risk of reoffending. Given his age and the association between the offending behaviour and Mr Sturt’s drug use, I agree with that assessment.

46. In custody Mr Sturt has completed several programs, including the ‘Positive Lifestyle’ program and the ‘Seasons for Growth’ program. He has been diligent in engaging with the requirements of the programs, the facilitators describing him as punctual and seriously committed. In addition, he has been drug-free while in custody.

47. Dr Samuels has outlined his opinion for treatment for when the offender is released from custody. Mr Sturt confirms that he intends to act upon those recommendations.

48. The offender enjoys the support of his family. I have before me a statement of Napier Sturt, the offender’s son. He explains that he is happy for the offender reside with him and the offender’s wife, and that he would be stern in laying down the law with respect to any aberrant behaviour.

49. I am of the view that this offender has excellent prospects of rehabilitation.

CONTRITION/REMORSE

50. In his statement tendered at court he explains that he takes full responsibility for his actions. He feels deeply remorseful for his actions. He also experiences a sense of shame and guilt for how his actions have led to a separation and inability to care for his wife. He describes his behaviour as “abhorrent”. He repeated these sentiments to Dr Samuels.

51. I accept that this offender has accepted full responsibility for his actions, displays genuine remorse for his offending, and is contrite.

COVID-19

52. The impact and restrictions of COVID-19 in the prison environment are multifaceted. Both appellate and courts of first instance in New South Wales have recognised a variety of species of hardship that inmates presently suffer in the custodial environment, including:

1. the suspension of social and family visits;

2. restrictions to movement and subsequent isolation of inmates. This offender has been subject to 49 lockdowns for a 24-hour period when he has been unable to leave his cell.

3. Negative impacts on wellbeing, including stress and anxiety.

53. Furthermore, courts across the different jurisdictions of the Commonwealth have further recognised additional hardships, including that work opportunities during the pandemic, when available at all, are limited.

SPECIAL CIRCUMSTANCES

54. The offender was arrested and refused bail for these offences on 25 March 2021. This period is solely referrable to these offences, and this has been his first time in custody. Although the offender enjoys good physical health, he is of an advanced age, and I consider this factor in my finding of special circumstances: R v Mammone [2006] NSWCCA 138. He has also suffered hardship in custody by virtue of his depressive symptoms.

55. I have discussed this offender’s prospects of rehabilitation and accept that he will need further rehabilitation once he is released from custody. I accept that his need for rehabilitation in this respect will be optimised in the community, and a longer period of supervision on parole would be beneficial. I make a finding of special circumstances in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act1999.

SENTENCE

56. The threshold in s 5 of the Crimes (Sentencing Procedure) Act1999 is crossed, and no penalty other than one by way of full-time imprisonment is appropriate.

57. Mr Thomas has referred me to R v De Leeuw [2015] NSWCCA 183 at [72] that when sentencing child abuse material offences, a sentence of imprisonment is warranted unless exceptional circumstances exist. In DPP v Garside [2016] VSCA 74, the Court did not accept the principles cited by Johnson J in De Leeuw. Their Honours preferred the position of Nettle JA, as he then was, in DPP v Smith [2010] VSCA 215 at [23], and the dissenting judgment of Priest JA in DPP v Zarb (2014) 46 VR 832 at [71]. The preferred principle is that a term of immediate imprisonment will ordinarily be expected for such offending. No law of principle is needed as each case must be decided according to its own circumstances. I accept that general deterrence is the paramount or primary sentencing consideration.

58. I impose an aggregate sentence of 3 years and 6 months imprisonment, commencing 25 March 2021, which will expire on 24 September 2024. I impose a non-parole period of 2 years and 1 month, which is 59.5% of the head sentence. Mr Sturt will be eligible for parole on 24 April 2023. The following indicative sentences have been reduced by 25%:

1. Bestiality: 2 years.

2. Unauthorised firearm: 9 months.

3. Supply prohibited drug: 12 months.

4. Dissemination of child abuse material: 2 years and 6 months.

5. Possession of child abuse material: 2 years and 6 months.

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Decision last updated: 12 May 2022