R v TD - [2018] NSWDC 180

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v TD [2018] NSWDC 180
Hearing dates: 14 June 2018
Decision date: 05 July 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [82]

Catchwords:
Groom child for unlawful sexual activity; possess child abuse material

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1987
Criminal Code 1995 (Cth)

Cases Cited:
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Efthimiadis v R [2013] NSWCCA 276
R v Asplund [2010] NSWCCA 316
R v Cahyadi [2007] NSWCCA 1
R v De Leeuw [2015] NSWCCA 183
R v Fuller [2010] NSWCCA 192
R v JF [2017] NSWCCA 217
R v MMK (2006) 164 ACrimR 481
R v Porte [2015] NSWCCA 174
R (Cth) v Poynder [2007] NSWCCA 157
R v Wilkinson (No. 5) [2009] NSWSC 432
TM v R [2018] NSWCCA 88

Category: Sentence
Parties: Director of Public Prosecutions (Crown)
TD (Offender)
Representation:
Counsel:
S Climo (Offender)
Solicitors:
I Maxwell-Williams (Crown Solicitor)

File Number(s): 17/129877
Publication restriction: Non-publication of name of complainant.
The offender is not to be identified, as a previous offence was committed whilst he was still a juvenile: S 15A Children (Criminal Proceedings) Act 1987 (NSW)

REMARKS ON SENTENCE

The offender, who was born on 30 August 1995, was charged with the following offences:

Groom child for unlawful sexual activity pursuant to s 66EB(3) of the Crimes Act 1900.

The maximum penalty for that offence is 10 years imprisonment and there is a Standard Non-Parole Period of 4 years imprisonment.

Possess child abuse material pursuant to s 91H(2) of the Crimes Act 1900.

The maximum penalty for that offence is 10 years imprisonment. There is no Standard Non-Parole Period.

The offender had on 22 August 2016 been sentenced at Armidale Local Court in respect of the following offences:

Stalk/intimidate (call-up of s 9 Bond).

Escape police custody.

Take/drive conveyance x 2.

Custody of a knife.

He was sentenced to concurrent sentences totalling 12 months imprisonment with a non-parole period of six months. The non-parole period expired on 21 February 2017, and his supervised parole was due to expire on 21 August 2017.
The subject offences occurred between 1 March 2017 and 2 May 2017, when the offender was arrested. On 17 May 2017 his parole was revoked and he was ordered to serve the balance of three months and 25 days commencing on 1 May 2017. That period expired on 25 August 2017. The offender has been in custody, attributable solely to the subject offences since 25 August 2017.

The sentence hearing

The sentence hearing took place on 14 June 2018 at Taree District Court. The Crown Sentence Summary became Ex A. It contained a Statement of Agreed Facts, which may be summarised as follows.
In early 2017, the offender resided in Armidale. He had previously lived in Taree and knew of the victim’s older sister. The victim SN, was 14 years of age and resided with her mother and older sister. In mid‑March 2017, the offender messaged the victim via Facebook, and introduced himself. They had not met in person and started to communicate via Facebook messenger, other social media and mobile phone calls/messages. Within the first couple of days of that communication, the victim told the offender that she was 14 years of age. He told her that he was 21 years old.
By the end of March 2017, the communication between the offender and the victim consisted overwhelmingly of romantic messages, proclamations of love and “romantic nicknames”. The communications quickly became sexual in nature, with the offender and victim exchanging lengthy and explicit messages about having sex and performing sexual acts upon each other, from early April 2017.
An arrangement was made for the offender to travel to Taree and stay at the victim’s house between 28 April and 2 May 2017. The sexual communications were directed to what sexual acts the offender would perform with the victim once they had met, and the frequency and content of those communications escalated towards the end of April 2017.
The offender requested the victim send him nude photographs of herself, and the victim sent him a total of 16 naked photographs of herself, posing naked with emphasis on her breasts, bottom and genitals. Those photographs and a video have been classified as being Category 2, Other Child Abuse Material, according to the Interpol Baseline Categorisation. On a number of occasions the victim told the offender that she felt uncomfortable sending him nude photographs, that she did not like it and that she felt insecure about her body and sending the photographs. The offender pressured her into doing so, and on at least one occasion, when the victim thought she had made him angry and was worried she had upset him, he told her that she would make him feel better if she sent him nude photographs of herself.
The Agreed Facts contained numerous examples of the communications in which the offender pressurised the victim into sending naked photographs of herself to him. The offender was on occasions manipulative and insisting that he was her boyfriend and not just “a random guy”. On a number of occasions, after receiving photographs of the victim, the offender would comment on how they had “turned him on”, and engaged in sexual messages thereafter.
Prior to the proposed visit to the victim’s house in late April 2017, the offender’s communications were very clear, and he was very descriptive as to the sexual acts he intended on performing on the victim when he arrived at her home. His explicit descriptions included discussions about anal sex, contraception, not wearing a condom and ejaculating inside the victim’s vagina.
On 1 May 2017, police attended the home of the victim and located the offender inside those premises. The naked photographs of the victim were located on the offender’s phone, and Facebook messages equating to 648 pages of messages were found to have occurred between 30 March 2017 and 1 May 2017. The offender was arrested and made full admissions as to having possession of the photos and stated that he was fully aware that the victim was 14 years of age. Both the offender and victim stated that no sexual intercourse took place and they were supervised by the victim’s mother during the time he was at her home.
The offender participated in an ERISP interview and made admissions to having a relationship with the victim, who was 14 years of age. He stated that he intended on having sexual intercourse with her, however, when he arrived, he had not done so because she was 14, he did not want to get into trouble, and they were supervised. Initially he claimed that their conversations were not of a sexual nature, however, once they were read to him, he acknowledged the effect of what he had intended to do sexually with the victim.
Following his arrest, the offender was bail refused. He continued to contact the victim on a daily basis, at times on multiple occasions per day from gaol. On a number of occasions he asked the victim to send him photographs of herself and requested that she put money in his account.
The offender had stated that both himself and the victim were to blame for the nude photographs of the victim on his phone. They had also discussed their future together, and made plans for when the offender was to be released from prison to be together. The victim and her mother had told the offender that they made it clear that the victim’s relationship with the offender will continue, hoping that will assist him in his sentencing. They had discussed plans for him to relocate closer to her, and whether he would be able to do so once on parole. They had also discussed the fact that he would be on a Child Protection Register and would not be permitted to see her, during which, the offender had told the victim. “Look we’ll figure something out”.
Also included in Ex A were the offender’s criminal antecedents. He had been convicted in the Armidale Children’s Court on 5 November 2014 for an offence of having sexual intercourse with a person between the ages of 14 and 16 years, to which he was sentenced by way of probation pursuant to s 33(1E) for 12 months supervision. On appeal to the District Court, that sentence was varied to a bond pursuant to s 33(1)(A)(ii) for a period of 12 months to attend counselling, educational development, and drug and alcohol rehabilitation. Other offences included convictions on 5 November 2014 at the Armidale Local Court for offences of behave in offensive manner in/near public place/school, and stalk/intimidate intend physical etc harm, for which he was sentenced by way of s 9 bonds to be of good behaviour for a period of 18 months. It was in respect of breaches of those bonds that he was sentenced by way of a call-up in the Armidale Local Court on 22 August 2016 and sentenced to one period of imprisonment of three months commencing on 22 August 2016, and a further sentence of 12 months imprisonment with a non‑parole period of six months commencing on 22 August 2016 and concluding on 21 February 2017.
As set out above, at the same time he was sentenced by way of call-up in respect of section 9 bonds for offences of take and drive conveyance without consent of owner, escape police custody and driver never licenced.
The same sentence was imposed in respect of an offence of custody of knife in public place, which had occurred on 8 July 2016.
Also relevant was that the offender had been convicted of providing false and misleading information for which he had been sentenced to seven months imprisonment commencing on 19 June 2015, suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (“CSPA”).

The offender’s evidence

The offender adduced into evidence, over objection by the Crown which was disallowed, the following documents:

Letter from Dr Catherine Wiles to Dr Terry Bohlsen dated 7 November 2012.

Letter from Dr Catherine Wiles to Dr Terry Bohlsen dated 19 September 2012.

Letter from Dr Catherine Wiles to Dr Terry Bohlsen dated 12 June 2012.

Letter from Dr Catherine Wiles to Dr R Dahiroc/Dr Terry Bohlsen dated 24 April 2012.

Letter from Dr Magella Lajoie, Child BMO, psychiatrist to T Doff, Child and Adolescent Mental Health Service Armidale dated 2 November 2011.

Confidential psychological assessment report for school under the hand of Dr T Hanstock dated 19 May 2011.

Confidential psychological assessment report by Dr T Hanstock dated 2 November 2010.

Those reports became Exs 1.2 to 1.8.

Those reports evidence that the offender had as a child been diagnosed as suffering Asperger’s Disorder, a Pervasive Developmental Disorder, Tourette’s Disorder and Attention Deficit Hyperactivity Disorder (ADHD). He had been under the care of a general practitioner and psychologist and had developed an Oppositional Defiance/Conduct Disorder with anger issues. He had struggled at school and had been subject to bullying, following which he was diagnosed with a Post-Traumatic Stress Disorder. He suffered learning difficulties and ultimately was diagnosed with a generalised Anxiety Disorder.
The Crown conceded the diagnoses of Aspergers, Tourette’s and ADHD. However, the Crown asserted that there were no updated reports from any of the treatment providers, and the reports significantly pre-dated the offending. They contained therefore no reference to the subject offending and no analysis as to how the various diagnoses impacted on the offender’s moral culpability. There was also no expert medical opinion as to how the various conditions diagnosed in the offender as a child would change over time. The Crown had no capacity to test the reports, which had not been prepared for the purpose of these court proceedings. Notwithstanding the Crown objection, the reports were admitted as background information on the offender.
The offender gave evidence about the various diagnoses he had received as a young person, the intervention he had benefitted from by Dr Tanya Hanstock, and the medications he had taken for each of the diagnoses.
In primary school he had been knocked out on two occasions and had a very traumatic time because of bullying. That subsided during his high schooling at O’Connor Catholic College. In high school he was unable to concentrate and he never wanted to be at school. He had left home at age 17 years to live with a family friend.
Notwithstanding his problems, the offender had been a member of the Air Force Cadets for five and half years, and had also participated in organised touch football competitions, representing New South Wales at both junior and senior levels, namely under 16, under 18 and under 21 competitions. He had also played both rugby league and rugby union for New South Wales Country.
During his time in custody, the offender had undertaken an anger management course and a re-offending course, which were run together over a period of two months on a fortnightly basis. Whilst on parole, the offender had relied on his caseworker and his mother and step-father for support, however, he stated “I messed up”.
He agreed with the Statement of Facts contained in Ex A. The offending took place during a three months period from March 2017. When asked how he felt about the offences he said he was:

“Very disappointed in my actions. I knew it was the wrong thing to do and I’m very sorry for the damage to the victim because of her age.”

If he could take his actions back he would. He had no excuses for his offending conduct and was very sorry for causing the victim pain. He was really disappointed in himself.
When asked if he had an explanation for continuing to talk to the victim whilst he was in custody on remand, the offender said it was:

“A very silly thing to do and I regret it.”

When asked if he had any ongoing contact he said, “Not at all”.

The offender gave evidence that upon his release he wanted to be a father for his son who is now aged two years. He also wanted to re-engage in sport and obtain a full time job. When asked what type of employment he would look for, he said it would be in “firefighting or aviation”.
The offender gave evidence that he had been in custody on remand in limited association, which meant protective custody. He had been assaulted twice when first in custody at Silverwater and on both occasions had received serious injuries. Being on limited association meant he had no access to courses for his drug and alcohol rehabilitation and access for limited periods to a small exercise yard.
In cross-examination, the offender conceded he had been difficult to handle as a young person and his behaviour had been pretty stressful for his mother. Notwithstanding that he had very adequate support from his doctors, medication and his mother.
The offender agreed that his offending was not related to his anger management issues. The rehabilitation he had undertaken following his last offence for sexual intercourse on a person under the age of 16 years in 2013, had not been effective in helping him to refrain from re-offending. He accepted the facts of the subject offending and that he had been in constant communication with the victim over a period of four weeks, with very sexually explicit material.
It was put to the offender in cross-examination that he had articulated quite a bit of insight into his offending in his evidence, however, when asked why he was unable to stop the offending, he said he had no excuse, but he denied that he was being driven by his own sexual desires. He also denied that he was in love with the victim. When asked what motivated him to engage in extremely explicit communications with a child, he said “I have no answer”.
The offender described his behaviour in gaol, when he asked the victim to send him more naked photographs of herself, as “silly behaviour”. He accepted that that conduct reflected badly on the question of his remorse.
The offender also agreed that his post-offending conduct was consistent with him having an intention of continuing his relationship with the victim, however, he denied that that was now the case, although he had not communicated that to the victim. The offender said that he had absolutely no intention of having an ongoing relationship with the victim. When it was put to him that he hoped by saying that it would benefit him in terms of a lighter sentence, the offender stated that he did not agree with that.
Finally, the offender said in respect of the two assaults that he had suffered in custody, were unprovoked attacks in which he did nothing, and said nothing to provoke those attacks, but had been brutally set upon by other inmates.

Submissions on behalf of the offender

Counsel for the offender relied on a detailed written outline of submissions. The background to the offences occurred within the context of the offender sending messages to the victim via Facebook for a period of three months. The offending also encompassed the exchange of child abuse material via those communications. The offender and the victim met once over the weekend of 28 April to 2 May 2017, during which time, no sexual activity took place.
It was conceded that the offence of grooming falls within a category of offences where principles of general deterrence have a high level of primacy, however, each case needs to be assessed according to its particular facts and circumstances, relying on R v Asplund [2010] NSWCCA 316 at [50].
It was submitted that the scope of criminal conduct encompassed by s 66EB(3) is broad, with a large variation in nature and degree of offending. The number of comparative cases was relatively small, however, some assistance could be provided by the analogy to offences pursuant to s 474.26(1) of the Criminal Code 1995 (Cth). However, some caution was required, given the differing fault elements of an offence under that section, and the higher maximum penalty of 15 years imprisonment.
In R v Asplund, supra, the following factors were found to be of relevance in assessing the objective seriousness of the offending:

The level of persistence of communication between the child and the offender,

The nature of the sexual material communicated,

The extent to which the intent to future activity with the offender is exposed and developed,

The nature of the sexual activity intended,

Age and power differential between the victim and the offender,

Nature of prior relationship between the offender and the victim; and

The offender’s level of awareness and deliberateness in the communicating.

It was submitted that here, the conduct of the offender was absent any offer of money or benefit in exchange for the proposed sexual conduct. It was conceded, however, that the offence involved an actual person, rather than a fictitious victim, which was a matter the court may consider as an aggravating factor. It was submitted that this was ultimately a matter that the court needs to consider in light of the relationship and the conduct of the offender taken in the context of the offending behaviour, relying on R v Fuller [2010] NSWCCA 192 at [35].
It was submitted that the following factors would give rise to a finding that the offender’s conduct fell within a low range of objective seriousness for an offence pursuant to s 66EB(3):

The offender made no attempt to conceal his identity, such as use of a false or an assumed identity.

The offence involves one complainant only.

Sexual activities discussed were not of the most “serious or degrading/graphic/violent acts of sexual intercourse”.

Material sent between the parties did not involve sexual acts or acts of masturbation and had a low level of classification as child abuse material.

Facebook was the communication method rather than a private chat room set up explicitly for grooming purposes.

The period of offending was relatively short.

The age differential between the offender and complainant is narrow.

The relationship did not involve a significant breach of trust.

No monetary payment or other inducement was offered in return for sexual activity.

The grooming communication extended to arrangements to meet so that sexual intercourse could take place at the victim’s home where she lived with her family, as distinct from a clandestine location.

In respect of the offence of possession of child abuse material, the offender relied on the approach adopted by the New South Wales Court of Appeal in R v Porte [2015] NSWCCA 174, and in R v De Leeuw [2015] NSWCCA 183, in assessing the objective seriousness of offences relating to child pornography:

Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted,

The objective seriousness of the offending is ordinarily determined by reference to the following factors:

The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;

The number of items or images possessed;

Whether the material is for the purpose of sale or further distribution;

Whether the offender will profit from the offence;

In the case of possession of or access of child pornography for personal use, the number of children depicted and thereby victimised;

The length of time which the pornographic material was possessed.

General deterrence is a primary sentencing consideration for offending involving child pornography,

Less or limited weight is given to an offender’s prior good character,

Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain child pornography,

Offending involving child pornography is difficult to detect given the anonymity provided by the internet,

The possession of child pornography material creates a market for the continued corruption and exploitation of children,

There is a paramount public interest objective promoting the protection of children as the possession of child pornography is not a victimless crime – children are sexually abused in order to supply the market,

The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending (authorities and citations omitted).

The offender submitted that here there was a small number of images obtained from the victim and they have been categorised at the second lowest level of categorisation for child abuse material. In sentencing here, the court would take into account the following factors:

The facts do not suggest that the offender’s purpose was anything other than for personal use;

There is nothing to suggest that the offender was part of a dissemination or transmission group of like-minded persons, nor that he was distributing any items for profit or otherwise;

There is nothing to suggest that there was any sophistication in the offender acquiring the material, nor in the storage of the material;

It is clear from the material and the explanation of how the material was sourced that the offender acted alone;

There is no evidence that there was a risk of material being seen or acquired by vulnerable people;

There is no evidence that the material has been seen by people susceptible to act in the manner depicted or described.

Counsel for the offender submitted that the following mitigating features were present pursuant to s 21A(3):

(b) No significant record for previous convictions;
(g) Unlikely to re-offend;
(h) Good prospects of rehabilitation; and
(k) Plea of guilty entered at the Local Court entitling the offender to the full utilitarian value of the plea.

Counsel further submitted that in accordance with the Court of Criminal Appeal’s decision in DPP (Cth) v De La Rosa [2010] NSWCCA 194, the offender’s mental health meant that the need to denounce the crime may be reduced with a reduction in sentence. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed, and that a custodial sentence may weigh more heavily on the person. It may also reduce or eliminate the significance of specific deterrence.
Counsel submitted that the court would apply the totality principle in considering whether concurrency was required, namely, whether the sentence for one offence can comprehend and reflect the criminality of the other offence, relying on R v MMK (2006) 164 ACrimR 481 at [11]. It was submitted that the court should consider imposing concurrent sentences for the two offences, as the conduct occurred as part of one set of events within a relatively short period of time. The question of rehabilitation of the offender was also important in the sentencing process. It was submitted that there was strong evidence for the offender’s need for assistance in his rehabilitation and therefore a finding of special circumstances should be made, based on his need for mental health treatment.
In further oral submissions, Counsel for the offender submitted that the scope of offending pursuant to s 66EB was extremely broad. Here, there were a number of factors to be taken into account in accordance with R v Asplund, supra, however, the age differential was not great. The relationship between the offender and victim had endured for a period of three months, whereas the messaging took place over a period of four weeks. Absent from the offending here was the use of chat rooms, any attempt to disguise the offender’s identity and any offers of money. However, it was conceded that the relationship between the offender and the victim was inappropriate and involved an inherent power differential. It was further conceded that the victim, being an actual person, increased the objective seriousness of the offending, but was not an aggravating factor in that offending.
It was further submitted that unlike the circumstances in R v Fuller, supra, there was not a high degree of predatory behaviour here. In that case, the offender was 55 years old and the victim 13 years of age. Similarly, R v JF [2017] NSWCCA 217 was an example of highly predatory behaviour compared to the current matter.
Counsel submitted that the child abuse material offence sat at the very low end of the scale of objective seriousness. Applying the factors outlined above in R v Porte, supra, there was a low number of images, no dissemination of the material, no profit and no network of dissemination. The procuring occurred directly as a result of the other offending, namely, grooming, and was for personal use only.
Counsel submitted that the offender had achieved belated insight into his offending, which was a factor to be taken into account. His post-offending conduct would also be taken into account in assessing the objective seriousness of the offending, relying on R v Wilkinson (No. 5) [2009] NSWSC 432. At the sentence hearing, however, the offender had expressed a genuine display of remorse. Further, his mental health should be taken into account. Whilst there was no current medical evidence as to the various diagnoses made, it was still a factor that the court should take into account, not as a factor in reducing his moral culpability, but by way of less weight being given to general and specific deterrence, and also having regard to the difficulties that he will face in custody. The offender is now 21 years of age and was still a young man, and his youth could be taken into account, together with his emotional immaturity at the time of the offending.
Finally, Counsel submitted that a finding of special circumstances should be made on the basis that he has been in protective custody and having regard to his mental health. Counsel submitted any period of custody should be backdated to 1 May 2017.

The Crown submissions

The Crown submitted that the maximum penalties for each offence represented the seriousness with which Parliament considers these offences and reflects community standards in relation to properly combatting sex‑related crime against children. The Crown set out the background to the offending, which is reflected in the summary of the Agreed Facts above. The Crown submitted that the conduct amounting to offending pursuant to s 66EB(3) – groom child for unlawful sexual activity – fell within the mid-range of objective seriousness for a charge of this nature, relying on the following:

From the commencement of the relationship the offender was aware that the victim was 14 years old;

The contact between the offender and victim escalated quickly to become extremely sexually explicit;

The offending conduct continued for four weeks in what was a sustained course of conduct;

The volume of messages is significant. The Facebook messenger text messages totalled 648;

The age difference between the offender and the victim is not insignificant and represented a gap in emotional intelligence;

The offender was persistent and manipulative in his requests for explicit photographs from the victim, clearly becoming angry when the victim would not accede to his requests;

The victim repeatedly told the offender that she did not want to send him photos that he had requested, indicating her discomfort at the prospect of sending sexually explicit photographs of herself;

The offender makes express and explicit reference to the various ways he intended on having sex with the victim. It was clear that his knowledge of such acts was to a higher degree than that of the victim;

The offender had taken advantage of the victim’s emotional immaturity;

The motive of the offender in engaging with the victim in this way was patently clear. He intended on having sexual intercourse with her knowing that she was 14 and not capable of consenting to have sexual intercourse with him.

In relation to the offence pursuant to s 91H(2) – possess child abuse material – the Crown submitted that the offending fell just below the mid-range of objective seriousness for the following reasons:

The possession of that material is borne of the abovementioned unlawful conduct of the accused;

The escalation from requesting benign unlawful photos to nude photos of the victim appears to have been a considered course of conduct by the offender;

The material is comprised of 16 naked photos of herself with an emphasis on her breasts, bottom and genitals. The material also includes one video of the victim fondling her breasts;

The victim was 14 at the time the photos and video were taken. The age difference between the victim and the offender for the purposes of this offending is again not insignificant;

The images have been classified as falling within category 2 according to the Interpol Baseline Categorisation.

In respect of the grooming offence, the Crown referred to the principles set out in R v Asplund, supra, and R (Cth) v Poynder [2007] NSWCCA 157, which included interference with a child’s right to privacy and healthy psycho/sexual development, manipulative internet exchanges, and the corrosive effect the communications must have had on the victim so that “she forgoes the normal sexual mores accepted by our society and becomes compliant with unhealthy demands”.
In relation to the charge of possession of child abuse material, the Crown submitted that the absence of features including that the material was not published or disseminated, does not ameliorate the seriousness of the offending, relying on TM v R [2018] NSWCCA 88. The reason for that was that if the images had been published or disseminated, that would give rise to a separate offence under s 91H(2).
The Crown submitted that the classification of the child abuse material as category 2 must still inform an assessment of the objective gravity of the material and an ultimate determination that the objective seriousness of the offence is high, relying on R v Porte, supra.
The Crown submitted that the accused was on parole at the time of the offending for various offences, including stalk/intimidate, escape police custody, two counts of take and drive conveyance, and custody of a knife.
The Crown did not submit that the offender’s criminal history is an aggravating feature of the offending pursuant to s 21A(2)(d) of the CSPA, however, it was particularly concerning that the offender had previously been convicted of a personal violence offence, namely, sexual intercourse with a child under the age of 16 years. The offender was not entitled to any leniency by reference to his criminal record.
The Crown conceded that the offender was entitled to the full utilitarian benefit of his plea of guilty in the Local Court, however, the court should not accept this as an evidentiary basis of remorse on the part of the offender. The offender’s post-arrest conduct evinces a lack of remorse or contrition on his behalf. Further, there was no capacity for the court to find that the offender was unlikely to re-offend. Also, his prospects of rehabilitation are guarded.
The Crown submitted that the views of the victim in this matter were irrelevant, relying on Efthimiadis v R [2013] NSWCCA 276.
The Crown submitted that deterrence was a key sentencing consideration here. The Crown accepted that the offender had been diagnosed as a child with Asperger’s’ Syndrome, Tourettes Syndrome and ADHD. However, there was no contemporaneous evidence providing an opinion as to the extent to which those conditions remained problematic for the offender, and whether or not those conditions had any bearing on the offender’s moral and criminal culpability. The offending here was objectively serious and involved the ongoing manipulation of a child by the offender with a view towards gratifying his sexual desire. Any sentence should properly reflect the objective seriousness of the offence, and properly denounce the offending and deter future offending.
In further oral submissions, the Crown conceded that no inducement had been held out by the offender, and there was no concealing of his identity. However, the communications had taken place through social media and by use of the offender’s mobile phone. The age differential was not insignificant and constituted a power differential between the offender and victim. The volume of messaging was also significant and the court would have regard to, in assessing the grooming offence, that 648 Facebook messages, over a period of 32 days, which meant on average approximately 20 per day. In addition, there were SMS messages, video and phone calls. The communications escalated very quickly to be extremely sexually explicit.
The offender took advantage of the victim’s emotional immaturity. It was submitted that the offender was manipulative and taunted her. His intention was clear from the outset, and at all times he knew she was a child. The objective seriousness of the offending for the grooming offence was therefore mid-range.
In respect of the child abuse material offence, pursuant to s 91H(2), the Crown submitted that the objective seriousness of the offending was just below mid-range. It was an aggravating factor that the offending occurred whilst the offender was on conditional liberty, namely, parole, which had been revoked. He was not entitled to any leniency.
The Crown also submitted that the court would be cautious in assessing any potential future dangerousness of this offender. His previous rehabilitation had been unsuccessful and he had shown little insight into his offending behaviour. The court would be very guarded in respect of his prospects of rehabilitation.
The Crown submitted that the single factor in the offender’s favour was his youth. The court would not find that he expressed remorse or contrition for his actions. He in fact had no answer for his conduct or why it continued. That reflected a complete lack of insight into his offending behaviour. Further, his post-offending conduct, which included requests for further photos and money from gaol, leads to an intention on the part of the offender for the relationship to continue.
The Crown submitted that general and specific deterrence were important in offences involving child sex offences and child abuse material. The earlier reports contained in Ex 1, as to the offender’s mental health conditions, could be given little weight in determining general and specific deterrence in this matter. The offending took place to gratify the offender’s sexual desires.
Finally, in relation to the structure of the sentence to be imposed, the Crown submitted that any sentence should be backdated to 25 August 2017.

Determination

Section 3A of the C(SP)A sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:
(a) To ensure that the offender is adequately punished for the offence,
(b) To prevent crime by deterring the offender and other persons from committing similar offences,
(c) To protect the community from the offender,
(d) To promote the rehabilitation of the offender,
(e) To make the offender accountable for his or her actions,
(f) To denounce the conduct of the offender,
(g) To recognise the harm done to the victim of the crime and the community.”

I accept the Crown submission that the objective seriousness of the offending in respect of the offence pursuant to s 66EB(3) – groom child for unlawful sexual activity – falls within the mid-range of objective seriousness for a charge of this nature. While s 66EB(3) covers a broad variety of criminal conduct, the offending here was objectively serious for the following reasons:

There was a significant divergence in ages, namely, the offender was 21 years and the victim was 14 years of age at the time of the offending. From the commencement, the offender was aware that the victim was 14 years of age.

The offending conduct took place over a period of four weeks between 30 March 2017 and 1 May 2017, during which time, the volume of messages amounted to 648 in total.

The communications escalated quickly to become extremely sexually explicit at the behest of the offender.

The offender was persistent and manipulative in his requests for explicit photographs from the victim, and at times expressed anger when the victim would not accede to his requests. He was aware that the victim did not want to send photos as he had requested, and had indicated her discomfort at the prospect of sending sexually explicit photographs of herself.

The offender expressed explicitly the various ways he intended on having sex with the victim. In doing so, he took advantage of the victim’s emotional immaturity;

His motive was patently clear in that he intended on having sexual intercourse with the victim, knowing she was 14 years of age, and not capable of consenting to having sexual intercourse with him, and

It is immaterial, in assessing the objective seriousness of the offending, that no sexual intercourse took place.

In respect of the offence pursuant to s 91H(2) – possess child abuse material – I accept the Crown’s submission that the offending here falls just below the mid-range of objective seriousness for such an offence. I accept that there was no inducement held out to the victim, that the offender had not concealed his identity and that the communications took place on the Facebook messenger rather than a private chat room. The conduct commenced with the offender requesting benign photographs to him, then demanding nude photographs of the victim. The material comprised 16 naked photographs of the victim posing with an emphasis on her breasts, bottom and genitals. The material included one video of the victim fondling her breasts. Whilst the images were classified by the authorities as falling within category 2, according to the Interpol Baseline Categorisation, that is not a low level of classification. Whilst there was no dissemination of the material or any evidence that the offender was part of a network, the objective gravity of the offence is not assessed by the absence of such features which may elevate the offence to a different category of seriousness or a different type of offence. Whilst category 2 material is at the lower range for such categorisation, the images still involve sexual exploitation of a young child. It therefore constituted objectively serious offending, just below the mid-range.

Also relevant to the assessment of the objective seriousness of the offending, and the offender’s moral culpability, was the fact that the offences occurred whilst the offender was on parole for various offences including stalking/intimidate, escape police custody, two counts of take and drive conveyance, and custody of a knife. The offender’s criminal antecedents, which included an offence of sexual intercourse with a child under the age of 16 years, would not entitle him to any leniency in the sentencing process.
I have had regard to the maximum penalties for the offences. For the offence pursuant to s 66EB(3), the maximum penalty is 10 years imprisonment and it carries a Standard Non-Parole Period of 4 years imprisonment. The maximum penalty for the offence pursuant to s 91H(2) of the Crimes Act 1900 is 10 years imprisonment. There is no Standard Non-Parole Period. The maximum penalties for the offences, and the Standard Non-Parole Period in respect of the offence pursuant to s 66EB(3), are guideposts in the sentencing process, which I have taken into account.
The offender entered a plea of guilty to the charges in the Local Court. He is therefore entitled to a 25% discount on sentence being the utilitarian value of the early plea. No further discount will be allowed for remorse or contrition here. The offender’s post-offending conduct, by requesting both photographs and money from the victim whilst he was in custody on remand, demonstrates no remorse for his conduct. Further, his belated insight into the seriousness of his offending, and his sworn evidence that he did not intend to continue a relationship with the victim, notwithstanding that he had not communicated that intention to either the victim or her mother, who up until the sentence hearing were supporting the offender in the misplaced hope of him obtaining a lighter sentence, is not a factor which would entitle him to any leniency in the sentencing process.
The offender is still a young man, now aged 22 years. He had a troubled childhood, being bullied at school and being diagnosed with inter alia, Asperger’s Syndrome, Autism, Tourettes Disorder and ADHD. As outlined above, the evidence tendered on behalf of the offender at the sentence hearing was dated, and there was no recent evidence or expert medical opinion concerning the effect of those diagnoses upon him now, or at the time of the offending. There is no evidence therefore upon which to base a finding that the offender’s moral culpability for the offending may be reduced on the basis of his mental health. It may be, however, that in accordance with DPP (Cth) v De La Rosa, supra, that the offender may be an inappropriate vehicle for general deterrence, resulting in a reduction in a sentence which would otherwise have been imposed. However, given that there was no medical evidence that he suffered those conditions at the time of the offending, or was on medications in relation to them, coupled with the fact that he was otherwise capable of pro-social activities within the community, for example, his participation in the Airforce Cadets, touch football, rugby league and rugby union, to an extent that he played representative sports, lessened the weight of the submission made on his behalf. Nor is there any evidence before the court on which to base a finding that he will find a custodial sentence more onerous than otherwise, as a result of those conditions. For those reasons, both general deterrence and specific deterrence are important in the sentencing process here, particularly as the offender was on conditional liberty at the time the offending took place.
I am, however, persuaded that a finding of special circumstances should be made, pursuant to s 44 of the CSPA. The offender is still young, and requires rehabilitation in respect of his sexual offending and his mental health issues. There is therefore a need for an extended period of conditional release and supervision to ensure he can take his place as a productive member of his community. Given his criminal antecedents, any assessment of his risk of re‑offending would have to be guarded. It is clear that previous courses undertaken by the offender, relating to his anger management and risk of re‑offending, were entirely unsuccessful.
I am satisfied that no sentence other than a term of imprisonment is warranted pursuant to s 5 of the CSPA. Further, the two offences arise from the one course of unlawful conduct, which took place for a period of some three months. In applying the principle of totality here, the offending, pursuant to s 91H(2) of the Crimes Act 1900 was subsumed in the offending pursuant to s 66EB(3) of the Crimes Act 1900, and therefore any sentences should be served concurrently. They were part of a single episode of criminality with common factors and therefore the sentence should reflect the criminality of both offences – see R v Cahyadi [2007] NSWCCA 1 per Howie J at [27].
In respect of the offence pursuant s 91H(2) of possess child abuse material, I intend to sentence the offender to a fixed term of imprisonment of 12 months.
In respect of the offence pursuant to s 66EB(3) of the Crimes Act 1900 of groom child for unlawful sexual activity, I intend to sentence the offender to a term of imprisonment of 3 years, with a non-parole period of 2 years. The terms of imprisonment are to be served concurrently, and are to commence on 25 August 2017.

Orders

I make the following orders:

You are convicted of the offence pursuant to s 66EB(3) of the Crimes Act 1900 of grooming child for unlawful sexual activity.

You are sentenced in respect of that matter to a non-parole period of 2 years commencing on 25 August 2017 and terminating on 24 August 2019.

The balance of term will be a period of 1 year commencing on 25 August 2019 and terminating on 24 August 2020.

You are convicted of the offence pursuant to s 91H(2) of the Crimes Act 1900 of possess child abuse material.

You are sentenced to a fixed term of 12 months imprisonment in respect of that offence to commence on 25 August 2017 and to terminate on 24 August 2018.

The sentences are to be served concurrently.

Your parole eligibility date is 24 August 2019.

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Amendments

02 November 2020 - Cover Sheet -

Case name anonymised

Parties - Offender's name anonymised

Publication Restriction: Amended to include offender

Decision last updated: 02 November 2020

Medium Neutral Citation:	R v TD [2018] NSWDC 180
Hearing dates:	14 June 2018
Decision date:	05 July 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [82]
Catchwords:	Groom child for unlawful sexual activity; possess child abuse material
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1987 Criminal Code 1995 (Cth)
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 194 Efthimiadis v R [2013] NSWCCA 276 R v Asplund [2010] NSWCCA 316 R v Cahyadi [2007] NSWCCA 1 R v De Leeuw [2015] NSWCCA 183 R v Fuller [2010] NSWCCA 192 R v JF [2017] NSWCCA 217 R v MMK (2006) 164 ACrimR 481 R v Porte [2015] NSWCCA 174 R (Cth) v Poynder [2007] NSWCCA 157 R v Wilkinson (No. 5) [2009] NSWSC 432 TM v R [2018] NSWCCA 88
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) TD (Offender)
Representation:	Counsel: S Climo (Offender) Solicitors: I Maxwell-Williams (Crown Solicitor)
File Number(s):	17/129877
Publication restriction:	Non-publication of name of complainant. The offender is not to be identified, as a previous offence was committed whilst he was still a juvenile: S 15A Children (Criminal Proceedings) Act 1987 (NSW)