R v Tippett

[2020] NSWDC 576

District Court

New South Wales

Medium Neutral Citation:

R v Tippett [2020] NSWDC 576

Hearing dates:

18 December 2020; 13 March 2020; 10 July 2020

Date of orders:

10 July 2020

Decision date:

10 July 2020

Jurisdiction:

Criminal

Before:

M L Williams SC DCJ

Decision:

In relation to count 1, a fixed term of imprisonment of 6 months and in relation to count 2, a fixed term of imprisonment of 8 months: at [15].

Catchwords:

SENTENCING — Federal offenders — Relevant considerations

SENTENCING — Penalties — Imprisonment

SENTENCING — Mitigating factors — Remorse — Plea of guilty

SENTENCING — Relevant factors on sentence — Purposes of sentencing

Legislation Cited:

Criminal Code 1995 (Cth)

Crimes Act 1900 (NSW)

Cases Cited:

Kristensen v R [2018] NSWCCA 189

DPP (Cth) v Walls [2014] VSCA 323

R v Engeln [2014] QCA 313

Texts Cited:

Nil

Category:

Sentence

Parties:

Regina (Crown)

Donovan Tippet (Offender)

Representation:

Mr C Stevens (Commonwealth Director of Public Prosecutions)

Mr L Nicholls (Counsel for the offender)

File Number(s):

2018/185052

Judgment

1. Donovan Tippett, now aged 35 years old, has pleaded guilty to one offence contrary to s 474.27A of the Criminal Code 1995 (Cth), of using a carriage service to send indecent material to a person under the age of 16 years which carries a maximum penalty of seven years imprisonment, and one offence contrary to s 91H(2) of the Crimes Act 1900 (NSW), of possess child abuse material which carries a maximum penalty of ten years imprisonment.

2. It is common ground that he has served 12 days in custody in relation to this matter and that fulltime custody is appropriate in this case, so it is unnecessary for me to consider any alternatives when sentencing in accordance with the purposes of sentencing both for the State and Commonwealth offences.

3. The facts are agreed and there is very little contest between the very helpful submissions of Mr Nicholls for the offender, and the Crown. There has been no dissent from my suggested sentences raised with counsel during the course of submissions, so that I can deliver relatively brief remarks on sentence.

4. The Commonwealth offence arises out of events in 2018, when South Australian Police used an assumed online identity (AOI) of a 14 year old female on a social networking site. The offender sent a message to the AOI and was told that she was 14 years of age. Conversations continued over a number of days, with the offender asking the assumed AOI on multiple occasions for a picture. He was reminded that she was only 14 years of age. On 20 February 2018 the offender sent a photograph of a close-up of his erect penis to the AOI and continued asking for a picture of her, and sent her suggestive messages. He continued to ask for a photograph of the AOI between 21 February and 7 March and engaged in sexualised conversation.

5. He was arrested on 14 June 2018 at his home at Maroubra. On execution of a search warrant child abuse images were found on his mobile phone. One categorised as Interpol Baseline Categorisation (IBC) category 1, depicting a five year old girl who was tied up and was revealing her genitals, and six categorised as IBC category 2 which is, in addition to images on the offender’s mobile phone being the original image of his erect penis which was transferred to the AOI, thumbnail images which consisted of the profile pictures used on his Messenger account.

6. On 7 March 2014, he had been convicted of one count of possess child pornography and two counts of using a carriage service to transmit indecent communications to a person under 16. The offending was in similar circumstances for the current offending, in that he transmitted two photographs of his erect penis to a 14 year old AOI and possessed child pornography images. He was given a two year good behaviour bond and a term of imprisonment, but released forthwith on a recognisance for the Commonwealth offences. He has no other substantive matters on his criminal record, other than fail to comply with bail obligations for which he was given a s 9 bond in September 2018, that being after this offending.

7. The subjective material sets out an uncontroversial history. His immediate family reside in New Zealand. He came to Australia in 1995. He is married and has a 17 year old stepdaughter, but due to Child Protection registration he cannot reside with his wife and stepdaughter. He has been employed in a hardware store as an assistant manager for some years.

8. The Community Corrections officer indicated that as this is his second offending episode he is either not cognisant of the impact that the offending would have or is indifferent to it. He was willing to engage in counselling to address his offending behaviour and was assessed as being at a high risk of reoffending.

9. The history is amplified in a report of Ms Ivanka Manoski, forensic psychologist. He described that at the time of the index offending he felt that “things were a bit stagnant in the sexual side of things” in his current relationship. He reported that the offending behaviour made him feel excited, but he expressed a lot of remorse, stating that he was “disgusted with himself for what he did”. Ms Manoski also assessed him as having a high risk of sexual reoffending and need of treatment. He was offered a place in December 2019 in a group treatment program for sexual offenders.

10. I take into account the purposes and principles of sentencing for Commonwealth offences, which are helpfully summarised in the Crown submissions. As to the first matter, I note the explicitness of the close-up image and the comments made by him, the age differential and it was set in the context of an online chat that took place over several days. The fact that the victim was an AOI does not make any offending less reprehensible.

11. As to the State offence I would agree that it is an objectively serious matter. I take into account the images were in his possession for his own purpose, there was no suggestion of any dissemination or payment of a collaborative network. There was no identifiable risk of the material to be seen by vulnerable persons. There were a small number of images.

12. It is common ground that 10% discount on each sentence should be imposed by virtue of the timeliness of the plea of guilty. I take account of the need for specific and general deterrence. He is clearly in need of psychological intervention and treatment; with such treatment his prospects of rehabilitation could be reasonable.

13. I take account of the assistance provided by Mr Nicholls and the cases referred to by the Crown, namely Kristensen v R [2018] NSWCCA 189, DPP (Cth) v Walls [2014] VSCA 323 and R v Engeln [2014] QCA 313.

14. The orders that I make are on the Commonwealth count he is convicted, I impose a fixed sentence of six months imprisonment commencing 28 June 2020. On the State count he is convicted and I impose a fixed sentence of eight months imprisonment commencing 28 August 2020, expiring 27 April 2021.

15. I make forfeiture orders pursuant to the Forfeiture Orders dated 10 July 2020, namely that Apple iPhone brand mobile telephone (X0003098419) is forfeited to the Commonwealth.

Anything else?

NICHOLLS: No, your Honour.

STEVENS: No, your Honour.

HIS HONOUR: Do you understand that, Mr Tippett?

OFFENDER: Yes, your Honour.

HIS HONOUR: Effectively the sentence is ten months starting from 28 June, a couple of weeks ago. You will be released on 27 April next year.

OFFENDER: Thank you, your Honour.

HIS HONOUR: Thank you both for your assistance.

Note – These extempore remarks were revised without access to the court file.

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Decision last updated: 01 October 2020