R v Tamawiwy (No 4)
[2015] ACTSC 371
•11 November 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Queen v Tamawiwy (No 4) |
Citation: | [2015] ACTSC 371 |
Hearing Dates: | 21-24 September and 2 November 2015 |
DecisionDate: | 11 November 2015 |
Before: | Refshauge J |
Decision: | 1. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence, being Count 2 on the indictment. 2. Billy Bartolomeus Tamawiwy be sentenced to nine months imprisonment to commence on the 9 September 2014 to take into account pre-sentence custody. 3. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence being Count 3 on the indictment. 4. Billy Bartolomeus Tamawiwy be sentenced to ten months imprisonment to commence on the 9 October 2014, that is to be cumulative as to two months on the sentence for Count 2. 5. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence being Count 5 on the indictment. 6. Billy Bartolomeus Tamawiwy be sentenced to nine months imprisonment to commence on the 9 January 2015, that is to be cumulative as to two months on the sentence for Count 3. 7. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence. 8. Billy Bartolomeus Tamawiwy be sentenced to twelve months imprisonment to commence on the 9 January 2015, that is to be cumulative as to three months on the sentence for Count 5. 9. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence, being Count 10 on the indictment. 10. Billy Bartolomeus Tamawiwy be sentenced to twenty-two months imprisonment to commence on the 9 September 2014, that is to be cumulative as to six months on the sentence for Count 6 on the indictment. 11. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence, being Count 12 on the indictment. 12. Billy Bartolomeus Tamawiwy be sentenced to twenty-four months imprisonment to commence on the 9 January 2015, that is to be cumulative as to six months on the sentence for Count 10 on the indictment. 13. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence, being Count 13 on the indictment. 14. Billy Bartolomeus Tamawiwy be sentenced to twenty-two months imprisonment to commence on the 9 September 2015. That is to be cumulative as to six months on the sentence for Count 12 on the indictment. 15. Billy Bartolomeus Tamawiwy be convicted of using a carriage service to menace, harass or cause offence being Count 14 on the indictment. 16. Billy Bartolomeus Tamawiwy be sentenced to twenty-two months imprisonment to commence on the 9 March 2016, that is to be cumulative as to six months on the sentence for Count 13 on the indictment. 17. A non-parole period for those sentences of 22 months is set, to commence on the 9 September 2014 and end on the 9 July 2016. 18. Billy Bartolomeus Tamawiwy be convicted of engaging in sexual intercourse without consent, being Count 7 on the indictment. 19. Billy Bartolomeus Tamawiwy be sentenced to thirty months imprisonment to commence on the 9 July 2015. 20. Billy Bartolomeus Tamawiwy be convicted of engaging in sexual intercourse without consent, being Count 8 on the indictment. 21. Billy Bartolomeus Tamawiwy be sentenced to thirty months imprisonment to commence on the 9 July 2016, that is to be cumulative as to twelve months on the sentence for Count 7 on the indictment. 22. Billy Bartolomeus Tamawiwy be convicted of committing an act of indecency without consent, being Count 9 on the indictment. 23. Billy Bartolomeus Tamawiwy be sentenced to fifteen months imprisonment to commence on the 9 April 2018, that is to be cumulative as to six months on the sentence for Count 8 on the indictment. 24. For those sentences a non-parole period of one year and three months be set, to commence on the 9 July 2015 and end on the 8 November 2016. |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – using a carriage service to menace, harass or cause offence – sexual intercourse without consent – committing an act of indecency without consent – assuming fictitious identity online – electronic communication – sexually indecent messages – aggravating factors – fraud – deception – vindictive behaviour |
Legislation Cited: | Crimes Act 1900 (ACT), ss 54, 60 Crimes (Sentencing) Act 2005 (ACT), ss 7, 33, 35A Criminal Code 1995 (Cth), s 474.17 |
Cases Cited: | Cheung v The Queen (2001) 209 CLR 1 Ibbs v The Queen (1987) 163 CLR 447 |
Parties: | The Queen (Crown) Billy Bartholomeus Tamawiwy (Defendant) |
Representation: | Counsel Mr T Hickey (Crown) Mr J Lawton (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Defendant) | |
File Number(s): | SCC 289 of 2014 SCC 290 of 2014 |
REFSHAUGE J:
As I said in the R v NE [2015] ACTSC 352, the internet has provided great value to the community but, at the same time, human ingenuity has permitted it also to be used for criminal activity.
Between November 2013 and December 2014, Billy Bartolomeus Tamawiwy, the offender, used two Facebook accounts, one under his own name and one under the fictitious name of a woman, whose identity he assumed for the purposes of engaging in messages with a number of young men.
The messages rapidly turned sexual and Mr Tamawiwy made suggestions encouraging them to engage in sexual activities.
One young man did engage in such activity but, in the circumstances, it was non-consensual. Mr Tamawiwy recorded the sexual activity and sent it to the person’s brother who was, at the time, under the age of sixteen years.
As a result, Mr Tamawiwy was arrested by police and charged. After committal to this Court the Crown presented an indictment containing fourteen counts.
The matter was listed for trial to commence on 21 September 2015 and, on that day, Mr Tamawiwy entered pleas of guilty to five counts on the indictment.
During the course of the trial I directed the jury to acquit Mr Tamawiwy of one count on the indictment.
On 24 September 2015, the jury convicted Mr Tamawiwy of six of the counts on the indictment.
Two of the counts on the indictment had alternative counts pleaded to them and, accordingly, as a result of the jury’s verdicts, they were not required to return verdicts on those counts.
At the sentencing hearing, it appeared that Mr Tamawiwy wished to withdraw his plea of guilty to two of the offences and instead to plead guilty to alternative offences that had been charged along with those. The Crown did not oppose that course of action and, with some hesitation, I permitted him to do so.
When I had given him leave to withdraw his plea of guilty to those offences, he entered pleas to the alternative charges. The Crown has now filed a Notice Declining to Proceed (Nolle Prosequi) to the charges in respect of which I had permitted him to withdraw his plea.
Accordingly, Mr Tamawiwy now stands for sentence on eleven counts, the same number as before, but now eight counts of using a carriage service to menace, harass or offend, two counts of having sexual intercourse without consent and one count of committing an act of indecency without consent.
Using a carriage service to menace, harass or cause offence is an offence against s 474.17 of the Criminal Code 1995 (Cth) which provides for a maximum penalty of three years imprisonment.
Sexual intercourse without consent is prohibited by s 54 of the Crimes Act 1900 (ACT) which provides for a maximum penalty of twelve years imprisonment.
Committing an act of indecency without consent is an offence contrary to s 60 of the Crimes Act and renders Mr Tamawiwy liable to a maximum penalty of seven years imprisonment.
The maximum penalty is an important yardstick by which to judge the seriousness of an offence, although, with offences such as these, the wide circumstances on which they can be committed requires careful attention to the facts. See Ibbs v The Queen (1987) 163 CLR 447 at 451-2.
In this case, the finding of guilt from any of the offences was made by a jury and so it is necessary for me to find the facts from the evidence given at the trial. The facts that I find must, of course, be consistent with the verdict of the jury. Where facts aggravate the offence they must be found beyond reasonable doubt. Where Mr Tamawiwy relies on mitigatory facts, I need to find them on the balance of probabilities.
The principles have been set out and explained in Cheung v The Queen (2001) 209 CLR 1 at 12-14. I shall approach my task in this way.
The facts
As I have noted above (at [2]), Mr Tamawiwy established two Facebook accounts, one under his own name and the other under the name of a woman, Taylah Edwards. He then used these accounts to contact various people, including two young persons, KH and KC and, in those communications, sent them sexually indecent messages and images.
Between 16 November 2014 and 1 December 2014, Mr Tamawiwy, under the guise of Taylah Edwards, contacted Ned Philpott and they had a brief communication. Mr Tamawiwy sent Mr Philpott a photograph of a female with her breasts exposed.
Between 24 August and 28 August 2014, Mr Tamawiwy again posing as Taylah Edwards, made contact with Carl Figeuredo. The communications were quite sexualised and Mr Tamawiwy, posing as the female, Taylah Edwards, offered to have sexual intercourse with Mr Figeuredo which he declined. Mr Tamawiwy, as Taylah Edwards, invited Mr Figeuredo to have sexual intercourse with him and to “her” friends, if he did the same with a male first, but Mr Figeuredo again declined. In order to encourage Mr Figeuredo to engage in the sexual intercourse, Mr Tamawiwy sent him a photograph of a female exposing her breasts.
Finally, Mr Figeuredo agreed to meet with the male recommended by Taylah Edwards under the name of “Chris Horton”. He was proposing, however, not to engage in sexual intercourse but to tell him that he was not interested in that.
Mr Figeuredo then met Mr Tamawiwy, who was pretending to be “Chris Horton” and told him that he was not interested in engaging in sexual intercourse. Mr Tamawiwy became angry towards him and Mr Figeuredo left. After leaving, Mr Figeuredo received a number of messages through Facebook from “Taylah Edwards” that were threatening and harassing and suggested that “Chris Horton” would report him to the police.
Between 27 August and 1 December 2014, Mr Tamawiwy contacted another person using the Taylah Edwards’ Facebook account pretending to be the female, Taylah Edwards. During exchanges, Mr Tamawiwy sent a picture of a female stating it was “Taylah Edwards” and they engaged in further sexualised conversations. Mr Tamawiwy, as Taylah Edwards, sent the male a number of other photographs and then tried to convince the male to engage in sexual intercourse with a male stating that, if he did so, Taylah Edwards would engage in sexual intercourse with him and later that two of her friends would also engage in sexual intercourse with him.
Eventually, the male agreed, stating that he would kiss and receive fellatio from another male but would not engage in penile/anal intercourse, though he later agreed to do so.
The male later met Mr Tamawiwy and they engaged in sexual activity. Initially, Mr Tamawiwy inserted his penis into the male’s mouth but the male had difficulty in getting and sustain an erection.
Later, the male penetrated Mr Tamawiwy’s anus with his penis for some time.
While this was happening, Mr Tamawiwy used his phone. The male thought he was using it for the light function and was unaware that the sexual activity was being recorded.
When the male sought to make contact with Taylah Edwards, he found he was unable to do so. Later, Mr Tamawiwy, as “Taylah Edwards”, then contacted the male, threatening to send the video and photographs of the sexual activity, that he had taken with his phone, to friends and workplaces. Later, he sent a further message to the male saying that what had happened was a revenge for some alleged infection that the male had been responsible for transmitting, inviting him to engage in sexual intercourse daily with him to avoid the video being sent to the police, his friends and workplace and other persons.
Mr Tamawiwy did send some of the photographs to the male’s younger brother who however, did not actually see them before the male managed to intercept his phone.
Mr Tamawiwy also forwarded videos and the screenshot to another young man who knew the male with the male’s face clearly visible on the video.
He also sent the video to a young woman who knew the male.
Mr Tamawiwy was arrested on 9 September 2014 and has been in custody since then.
Subjective circumstances
Mr Tamawiwy was twenty-two at the time of the offences. He is an Indonesian national and his parents live in North Sulawesi, Indonesia, where they are employed as public servants. Mr Tamawiwy remains in contact with them and describes his relationship with his parents as loving and supporting, especially having regard to his homosexuality, which can be particularly problematic in Indonesia. He has two young siblings and a younger step-brother, all of whom reside in Indonesia, and has no family in Australia.
Mr Tamawiwy was single prior to being remanded in custody but has entered into a same-sex relationship with another detainee in the Alexander Maconochie Centre and is seeking to formalise that as a civil union.
Mr Tamawiwy went to school in Indonesia but received a scholarship at the end of his schooling to attend university in the ACT to further his studies. He worked in the hospitality industry for about three months in 2014 but quit his work to focus on his studies and other interests.
Mr Tamawiwy has never used illicit drugs and, although he did not consume alcohol until he was twenty-one, only drinks occasionally and has never been intoxicated.
Mr Tamawiwy did have some significant challenges when he was growing up. He was abused by a close relative when he was six years old. He was openly gay from the age of thirteen years but routinely subjected to physical and verbal assaults from both his peer group and other members of the community because of it. In one case he was burned by a group of attackers resulting in serious, emotional and physical trauma.
He has, as a result, been diagnosed with a number of psychological conditions and a sleep related disorder. He has been treated for these conditions by medication and he is receiving ongoing treatment in the Alexander Maconochie Centre.
Mr Tamawiwy has also self-harmed on several occasions usually in the form of cutting.
Although Mr Tamawiwy maintained his innocence of a number of the charges, he was, to a degree, able to acknowledge the impacts upon the victims. His main concern, however, was the predicament in which he found himself.
He did concede that his actions were morally wrong and ill-conceived although denying that they were illegal.
He claimed that his decision not to apply for bail was the means of expressing his regret and he has desired to be rehabilitated.
In the opinion of the author of the helpful Pre-Sentence Report, he was described as
...well-educated, yet somewhat immature young man who has been compliant while in custody. He reported an unstable and somewhat traumatic childhood while growing up in Indonesia, however, describes supporting and loving parents who he remains in frequent telephone contact with.
Mr Tamawiwy is aware that he may be deported when he is released from custody. He expressed significant concern about the potential consequences he may face if he is forced to return to Indonesia as he believes he will face further punishment and persecution.
He has not been convicted of any offences prior to these offences.
The offences
So far as the young people are concerned, the offences are serious. It is difficult enough to mature and manage one’s own sexuality without the challenges of the kind of behaviour in which Mr Tamawiwy engaged, which challenges the boundaries of appropriate behaviour. He targetted young people and the deception was a complex process of communication which involved some arrangement and premeditation.
The offences were serious but some were more serious than others. The sexual intercourse offences were serious versions of the offences because of the deception involved.
There is also no doubt that the deception was an aggravating factor for the other offences, for it meant that the participants, especially the male, were making decisions on a completely false and inappropriate basis.
The final four offences were clearly the more serious, for they were particularly frightening, menacing and vindictive.
Whatever might have been the assessment of the young male’s propriety in agreeing to have sexual intercourse and other activity with a male whom he had never met, in order to have sexual activity with three females, whom he had also never met, Mr Tamawiwy’s behaviour is entirely unacceptable and very serious.
Victim impact statements
I had a Victim Impact Statement from the male with whom Mr Tamawiwy had sexual intercourse. He recognised that in every life there are ups and downs but he graphically described the negative and destructive impacts on his life, that these offences had caused. These included:
· The widespread knowledge throughout social networking of what had happened leading him to losing contact with many of his friends.
· Loss of respect from family members especially some with whom he had formerly been close.
· Nightmares for about six months after the incident.
· The break-up of a relationship with a girlfriend for whom he cares very strongly and whom he loved.
· Contemplation of suicide which he initially did after the incident.
He commented -
This overall experience has scarred me for life and unfortunately the reality is that the pain I have been going through is for my entire life. This experience from start to finish has been what I hope to be the worst period of my life. I am glad it is over but at the same time I think that this is just the start of a long road ahead of extreme pain, sorrow and loneliness because of what Billy Tamawiwy did to me.
I also had a Victim Impact Statement from one of the young people with whom Mr Tamawiwy communicated via the Facebook account.
He stated that Mr Tamawiwy had taken away his innocence and had truly hurt him.
He described not just mental suffering, but the nights he spent vomiting from anxiety; having to drop out of school, not wanting to eat, trying to end his life, not being able to hold down a job and not having a normal social life. He says he no longer feels safe going out at night and he is in constant fear of meeting Mr Tamawiwy in public.
Consideration
I take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). In this case, general deterrence and specific deterrence seem particularly appropriate, as well as the recognition of the harm done to the victims.
So far as five of the offences are concerned, I take into account that Mr Tamawiwy pleaded guilty. It was, however, on the first day of the trial, and although it permitted three young people to be excused from giving evidence, the value as evidence of the facilitation of justice was low. I will, however, take it into account.
I also have regard to the factors set out in s 33 of the Crimes (Sentencing) Act and, so far as I know them, I have set them out in these reasons.
It is difficult to identify sentencing practice as, for the reasons noted in Ibbs v The Queen, the factual circumstances are quite different from any that I have encountered. Indeed, neither counsel could point me to directly comparable cases.
Nevertheless, sexual activity with young people, even through the internet, is to be deplored and rejected.
Mr Tamawiwy did express some acknowledgement of the impact on the victims but was unable to accept the verdict of the jury. Thus, despite a degree of remorse that his plea of guilty might evidence, I do not consider that there is much room for leniency due to remorse.
Mr Tamawiwy has been assessed as well-educated but rather immature man. He has been compliant while in custody.
His unstable and traumatic childhood is relevant and he is entitled to have this taken into account to some extent when I sentence him.
The Crown drew my attention to two relevant decisions. The first was the R v Livas [2015] ACTSC 50, where a man misrepresented to a prostitute that an envelope contained the price payable for the commercial sex transaction and then had intercourse with her but there was no money in the envelope. In that case, Mr Livas was sentenced to 25 months imprisonment reduced from thirty months for the plea of guilty.
The second was Onnis v The Queen [2013] VSCA 271, where the accused was sentenced for six counts of procuring sexual penetration by fraud and one count of attempting to do so. He was resentenced on appeal to a sentence of six years and two months with a non-parole period of three years and six months. In that case, the offender contacted women whom he enticed to consider earning extra money in an “adult services boutique business”, despite there being no such business. He engaged with various acts of sexual intercourse with them in the course of his attempt to procure them for the business.
Mr Tamawiwy is still a relatively young man, and that is relevant to the sentence that I must impose and affects the non-parole period, in particular, that I propose to impose.
Mr Tamawiwy did conduct the trial in a co-operative way where the issues were clear and little cross-examination was required, amounting to an acceptance of the Crown case to a significant degree. This entitles Mr Tamawiwy to some amelioration of the sentence under s 35A of the Crimes (Sentencing) Act.
Mr Tamawiwy has been assessed as suitable for a community service work conditioned to a Good Behaviour Order and there is work available. He has also been assessed as suitable to serve a term of imprisonment by periodic detention and has signed an undertaking to comply with the relevant obligations.
Nevertheless, in my view, the only sentence is a sentence of imprisonment to be served by full time custody. It is likely that Mr Tamawiwy will be deported after release from any custodial sentence. Of course, the fact of deportation is not to be considered in the context of sentence. See Shrestha v The Queen (1991) 173 CLR 48 at 71. That he might be subject to punishment and persecution is, again, not a matter that I can take into account, although it may be a basis for some kind of application to immigration authorities.
Since there are multiple sentences it is necessary to ensure that the principle of totality is respected.
Accordingly, I have carefully considered the length of each of the sentences I propose to impose on Mr Tamawiwy to ensure that, not only are they appropriate to sentence for the culpability of the offence on the circumstances of the offending but to ensure that, where there are overlapping common elements between any of the offences, Mr Tamawiwy is not punished twice.
I have also considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise or otherwise. This seems to apply, to some extent, to the sexual interaction with the male and, possibly, to some extent to the distribution of the recordings of that activity to other persons.
I have then reviewed the length of the term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed but no more than that and that the total sentence is not severe and that it will still leave open the realistic prospect of reform and hopefully achievement of Mr Tamawiwy’s goals when he returns to the community. Where necessary to achieve this I have adjusted the cumulation or concurrency of the individual sentences.
Mr Tamawiwy, please stand:
1. I convict you of using a carriage service to menace, harass or cause offence, being Count 2 on the indictment.
2. I sentence you to nine months imprisonment to commence on the 9 September 2014 to take into account pre-sentence custody. Had you not pleaded guilty I would have sentenced you to ten months imprisonment.
3. I convict you of using a carriage service to menace, harass or cause offence being Count 3 on the indictment.
4. I sentence you to ten months imprisonment to commence on the 9 October 2014, that is to be cumulative as to two months on the sentence for Count 2.
5. I convict you of using a carriage service to menace, harass or cause offence being Count 5 on the indictment.
6. I sentence you to nine months imprisonment to commence on the 9 January 2015, that is to be cumulative as to two months on the sentence for Count 3. Had you not pleaded guilty I would have sentenced you to ten months imprisonment.
7. I convict you of using a carriage service to menace, harass or cause offence.
8. I sentence you to twelve months imprisonment to commence on the 9 January 2015, that is to be cumulative as to three months on the sentence for Count 5. Had you not pleaded guilty I would have sentenced you to thirteen months imprisonment.
9. I convict you of using a carriage service to menace, harass or cause offence, being Count 10 on the indictment.
10. I sentence you to twenty-two months imprisonment to commence on the 9 September 2014, that is to be cumulative as to six months on the sentence for Count 6 on the indictment. Had you not pleaded guilty I would have sentenced you to twenty-four months imprisonment.
11. I convict you of using a carriage service to menace, harass or cause offence, being Count 12 on the indictment.
12. I sentence you to twenty-four months imprisonment to commence on the 9 January 2015, that is to be cumulative as to six months on the 10th count on the indictment.
13. I convict you of using a carriage service to menace, harass or cause offence, being Count 13 on the indictment.
14. I sentence you to twenty-two months imprisonment to commence on the 9 September 2015. That is to be cumulative as to six months on the sentence for Count 12 on the indictment. Had you not pleaded guilty I would have sentenced you to twenty-four months imprisonment.
15. I convict you of using a carriage service to menace, harass or cause offence being Count 14 on the indictment.
16. I sentence you to twenty-two months imprisonment to commence on the 9 March 2016, that is to be cumulative as to six months on the sentence for Count 13 on the indictment. Had you not pleaded guilty I would have sentenced you to twenty-four months imprisonment.
17. I set a non-parole period for those sentences of 22 months to commence on the 9 September 2014 and end on the 9 July 2016.
18. I convict you of engaging in sexual intercourse without consent, being Count 7 on the indictment.
19. I sentence you to thirty months imprisonment to commence on the 9 July 2015.
20. I convict you of engaging in sexual intercourse without consent, being Count 8 on the indictment.
21. I sentence you to thirty months imprisonment to commence on the 9 July 2016, that is to be cumulative as to twelve months on the sentence for Count 7 on the indictment.
22. I convict you of committing an act of indecency without consent being Count 9 on the indictment.
23. I sentence you to fifteen months imprisonment to commence on the 9 April 2018, that is to be cumulative as to six months on the sentence for Count 8 on the indictment.
24. Taking into account Mr Tawawiwy’s youth and the relevant cooperation in the conduct of the proceedings, for those sentences I set a non-parole period of one year and three months to commence on the 9 July 2015 and end on the 8 November 2016.
25. The total sentence is four years and ten months broken up into the Commonwealth offences and the Territory offences over which there is a degree of cumulation.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 17 December 2015 |
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