R v Warren Drake

[2014] NSWDC 252

District Court

New South Wales

Medium Neutral Citation:	R v Warren Drake [2014] NSWDC 252
Hearing dates:	7, 21 November 2014
Decision date:	21 November 2014
Jurisdiction:	Civil
Before:	Knox SC DCJ
Decision:	Full time custodial sentence. For orders see [84] - [102]
Catchwords:	CRIMINAL LAW - sentence - sexual intercourse with child - grooming - possess child abuse material - breach of bonds - breach of Child Protection orders
Cases Cited:	R v Blackman and Walters [2001] NSWCCA 121 Veen v The Queen (No. 2) (1988) 164 CLR 465 Muldrock v The Queen (2011) 244 CLR 120 Butters v The Queen [2010] NSWCCA 1 Alverez v R; Farache v R [2011] NSWCCA 33
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Warren Drake (Offender)
Representation:	Ms Roberts (Crown) Mr Ozen (Offender)
File Number(s):	2010/00119457, 2012/00248287, 2012/00356200, 2012/00356225, 2012/00389515, 2012/00394118, 2012/00396597, 2012/00401199
Publication restriction:	Nil

SENTENCE

1. HIS HONOUR: The offender appears for sentence in relation to eight counts on an indictment. In respect of three counts on the indictment, counts 7, 8 and 9 there are also a series of offences set out on the Form 1 which I will detail below which will be taken into account in sentencing for each of those principal charges. The offender is also to be sentenced for the breach of the bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act, that was for a period of twelve months. The offender has been in custody since 9 August 2012.

Background

2. Clearly one of the issues in these proceedings concerns the prospects of the offender’s rehabilitation in the light of his prior criminal history and in particular his actions and offences set against the timing of an earlier trial on charges involving substantially similar matters. It is, therefore, appropriate that I set out in these remarks matters relevant to that trial which will become relevant in my overall consideration of the sentence of the terms particularly the principles of totality.

Prior criminal trial

3. The offender was tried in Bega District Court before a jury and Judge Haesler SC in August/September 2011 on one count of sexual intercourse with a child, TJ, between the ages of 10 and 14. I have been provided with a copy of the remarks on sentence of Judge Haesler SC dated 19 December 2011. His Honour referred to the fact that the offender, in that trial, ran a defence which was essentially that he did not know the complainant’s age. The jury there clearly rejected that defence and, as his Honour noted, clearly accepted the evidence of the complainant. That resulted presumably from the jury’s consideration of the offender’s prior knowledge and involvement with the young girl, their own individual history from an early age and their family history.

4. It is also clear from his Honour’s remarks that the offender had a romantic attachment to the complainant in that case and indeed “took things far more seriously than TJ, the complainant”.

5. The charges in the trial were brought under s 66C(1) of the Crimes Act for which the maximum penalty is one of 16 years imprisonment.

6. His Honour also found that the criminality involved fell towards the lower end of the spectrum. He was influenced by the pre-sentence report as well as the associated psychologist’s report which seems to be that the offender had been placed in a category of “low to moderate risk relative to other male sex offenders”. His Honour also found that the offender was at that time a young man who had been working for a very long time.

7. “He is well-established in the community and is starting a new and proper relationship. He has excellent prospects and he is unlikely to re-offend”.

8. The offender was sentenced on 19 December 2011 and required to enter the bond imposed under s 12 of the Crimes (Sentencing Procedure) Act for 12 months. He was also placed on a Commonwealth bond to be of good behaviour for 18 months. All the offences for which the offender is to be sentenced for his breach are of that s 12 bond. There is also another bond for 18 months on which I propose to take no action.

9. That optimism of Judge Haesler SC proved to be unfounded and in a very short time. The evidence before Judge Haesler is clearly different from the evidence before me in these proceedings. As a result of that conviction the offender was placed on the Child Protection Registrar in accordance with the Child Protection Registration Act NSW 2000. His registration on that Child Protection Registrar was updated apparently after the birth of his child on 4 July 2012.

10. Further reports were sent to his primary address at Tregear, New South Wales. This Registrar becomes relevant in relation to some of the Form 1 offences.

Timing of subsequent offences

11. The sexual intercourse with the complainant TJ, then aged 13 years, with which that trial was concerned occurred on 17 October 2009. In March 2010 the offender commenced treatment in the Sex Offender Treatment Program. It is clear that the offences involving the complainant NP occurred in the period March to July 2012. The sexual intercourse with NP took place between 5 and 10 April 2012.

12. Further, the charge of possessing child abuse material, being photos of her, occurred in the period June to July 2012. In addition, the grooming charge was under s 66E(b) subs 3 occurred in the period April to May 2012.

13. The further charge of grooming brought under s 66E(b)(3) involving BT occurred in May 2012. What this indicates, and will be dealt with later in my consideration of the appropriate sentence, is a course of consistent criminal conduct in the light of a very recent criminal trial involving young girls by essentially the same methods of grooming and communication.

Facts in relation to each of the charges.

OFFENCE 1

14. This count involves sexual intercourse by way of digital penetration of NP. At that time she was 14 years and 7 months old. During the course of the subsequent police interview she said that she had been in a relationship with the offender for approximately four months. The act of digital penetration occurred in western Sydney in New South Wales between 5 and 10 April 2012.

OFFENCE 2

15. This charge of grooming involved conduct between the offender and NP between 12 March 2012 and 13 July 2012 in which he exposed her to indecent material with the intention of making it easier to procure her for unlawful sexual activity. In brief, the facts set out how the offender and NP came to communicate on Facebook. It seems that after about two weeks of Facebook communication as well as SMS texts being sent they first met in person. NP and her sister went with her sister’s boyfriend and the offender to the river at Jamison. During the course of the trip the offender, who was driving the car, put his hand up NP’s jeans. She was seated in the front passenger’s seat. He then put his hands down her pants and touched her vagina with his fingers inserted in her vagina. He moved his fingers inside and around her vagina for approximately two minutes.

16. On 3 August 2012 NP’s mother, Debbie, took NP’s mobile phone to the Mount Druitt Police Station. Police accessed the phone and retrieved 27 photographs, 10 of which showed the offender in various stages of undress and in some cases he had his hands on his penis.

OFFENCE 3

17. On 9 August 2012 police conducted surveillance of the offender in his car. They searched his car and seized a black iPhone. They found various child abuse images on the iPhone. Those included images of NP in a folder on the phone labelled “Sluts”. Those images were classified in accordance with the CTS Scale.

OFFENCE 4

18. The complainant in this instance, TS, was 14 at the time the offence occurred. She met the offender through friends and they subsequently began text messaging each other. The police recovered 157 sexual explicit text messages sent between the complainant and the offender between 10 May 2011 and 20 September 2011 which is set out in the agreed facts. During that time the offender asked for photographs of the complainant.

OFFENCE 5

19. The offending the subject of this count occurred between 28 April 2012 and 2 May 2012. The complainant SM and the offender began communicating after the offender randomly added her as a friend on Facebook. During the course of private message conversations the offender obtained her number and they communicated via a text message. She was interviewed by the JIRT team on 16 August 2012. The offender offered to buy her credit for her phone in exchange for a photograph of herself. An examination of the offender’s phone revealed a photo of the complainant in a black bra and underwear. One Facebook message from the offender reads: “Ok well when I get to Central I’ll bye (sic) you credit Ok bub so do you want to make love or na”. The complainant subsequently blocked him and deleted him as a friend on Facebook. When asked in his ERISP the offender agreed he was on way to a Probation and Parole mandated Child Sex Offender’s Program near Central Station and that when he did get to Central Station he did ultimately buy credit for SM’s phone.

OFFENCE 6

20. Again, the complainant BT and the offender began communicating after the offender randomly added her on Facebook. Communication took place between 14 May 2012 and 21 May 2012. The complainant went to the same school as NP and was 14 at the time which she disclosed to the offender the day he added her as one of his Facebook friends. The offender said he was 21.

21. In a message the night after he added her the offender sent a message saying, “I shore (sic) do I wanna date but u don’t lol… and my cock is 7 inch if you wanted to know what” to which the complainant replied, “O…o”. The next day the offender offered to buy her credit to which the complainant replied, “Neahh my daddy will get it”. On 20 May 2012 he asked the complainant if she wanted to meet up, repeating the request the next day. The complainant refused.

OFFENCE 7

22. The offender failed to inform police that he changed his residential address after he moved in with the mother of his child and her family. In a surveillance operation on 31 July 2012, 2 August 2012 and 9 August 2012 in the very early hours of the morning the offender’s car was parked at the new address. The offender’s girlfriend at the time recalled that he had been living with her since April 2012 and moved all his belongings to the new address from his parent’s home.

23. There are various matters taken into account on a Form 1A in relation to Count 7. Those relate to the provision of false information by virtue of not supplying police with a telephone number and residential address, failing to comply with reporting obligations, not informing police of the Facebook account three charges and failing to comply with reporting obligations, not informing the police of internet service providers relating to the mobile number at 52 Ball Street, Colyton and computers accessed at work under a particular Hotmail address.

OFFENCE 8

24. This offence relates to the offender’s regular unsupervised contact with children, in particular NP. This unsupervised contact is in breach of his Child Protection Registrar obligations.

25. The matters taken into account on the Form 1B in relation to count 8 are fail to comply with reporting obligations, having regular unsupervised contact with NP, having regular unsupervised contact with a child (SM) via internet and mobile phone and regular unsupervised contact with a child (BT) via internet and mobile phone.

OFFENCE 9

26. Offence 9 was one of attempting to actively communicate with a child under the age of 14 by writing a letter to EB requesting to see his six month old son. On 17 September 2012 when the offender was in custody he was made the subject of an interim prohibition order pursuant to s 7 of the Child Protection (Offenders Prohibition) Orders Act 2004 (NSW). The offender is and was prohibited from a variety of conducts involving he communication or association with children under 14 years of age, the care of any person under 18 years of age, not travelling outside New South Wales without informing the New South Wales Police and not to access any social media or email.

27. On 16 November 2012, some two months after being subject to the order, the offender went to the house of his ex-girlfriend and young son. In contravention of the order the offender left a note in the letterbox saying, “L it’s Warren can you plz call me on a number just to see our son for a little bitt hanks I am out BTW”.

28. Form 1C attached to count 9 included the matters of remaining in the company of a three month old child (JC) on 13 December 2012 by reporting on bail to a Police Station and another charge of being in the company of a child under the age of 14 years, his three year old niece, on 14 December 2012.

Evidence on Sentence Proceedings

Offender’s personal details and circumstances

29. The offender was born on 13 December 1989, he is nearly 23 years of age. On his account he grew up in a large supportive and close family as the third youngest of six children. Mr Drake identifies as an Aboriginal man. In his interview with Dr Seidler, the offender described a positive relationship with both parents although his father could be, using his words, “pretty nasty at times regarding discipline.” All the offender’s siblings bar one have been in trouble with the law at various stages including serving time in custody. The offender offered that his exposure to antisocial and negative influence may be responsible for this behaviour.

30. The family have resided in Department of Housing accommodation for a lengthy period of time despite his parents maintaining employment. The offender reported no history of significant substance abuse nor a personal history of abuse and presented an unremarkable medical history. The offender’s early schooling was also largely unremarkable, however, he acknowledged that he did not fit in well at high school and was unhappy although he had friends has not teased or bullied to any great degree. The offender told Dr Seilder that his behaviour at high school was problematic and that he was suspended on eight occasions for fighting with other students. He subsequently left school in Year 9.

31. He completed a Certificate III in Landscaping and Horticulture and has been in various forms of unskilled labour since he was 15. His longest period of employment is four years as a sheet metal worker which is commendable. He has expressed the desire to return to welding work in the future.

32. With regard to his friends, the offender told Dr Seidler that he has a lot of friends, many of whom he has known over the long term and about half of whom are engaged in antisocial behaviours. He stated that although he goes out socially he does not like going out drinking and spends time with his family.

33. Since losing his virginity aged 16 the offender has had about eight sexual partners with whom he was in a relationship with and three serious relationships. The offender acknowledged that in his most recent relationship he was not that faithful. His offending behaviour and incarceration contributed to its breakdown. The offender would like to play a role in the life of his son from this relationship, however, obviously that has its constraints at the present time.

Prospects of Rehabilitation

34. I have particular concerns about the rehabilitation of this offender. I have been given various reports, particularly the pre-sentence report for the specific purpose of this assessment, exhibit 7, dated 15 July 2014 as well as the associated treatment summary and risk management report of 13 May 2013 and the report of Dr Seidler from Lennings Seidler Collins, psychologists, of 22 April 2014, exhibit 10. It is clear from the report of Dr Seidler that the offender has a somewhat distorted idea of consent and boundaries. His view in April 2014 when he was interviewed was that he still thought that the degree of physical enjoyment of the girls involved would determine their capacity to consent and enjoy sexual behaviour. Clearly such views need to be addressed along with the offender’s present apparent predilection for contacting young girls who do not have the capacity for consent.

35. A common feature of these reports is that the offender seems to be part of a group which is a moderate to high risk of re-offending. Defence counsel, Mr Ozen, submitted that these classifications by statistical grouping are generalisations and that any consequential specific categorisation of this offender may lead to an injustice. Defence counsel also points out that some of the common comments of the various experts referred to the offender’s “flat affect” in his conversation with the experts and his borderline verbal intelligence. He also submits that the report of Dr Seidler in paragraph 69 is to the effect that the offender will respond and has the capacity to make important changes in his life.

36. Mr Ozen has submitted that in this regard I should be wary of not taking full account of the offender’s familial and indigenous background. He further submits that the offender in this category may well be subject to cultural and linguistic constraints which should not be misinterpreted. I agree with those submissions and I will take them into account.

37. The Crown in response pointed out that there are other denials by the offender of his culpability in criminality which did not indicate full co-operation with the police.

38. In the light of the submissions made I have in the intervening period reviewed the reports to which I have referred. The thrust of all the independent evidence before me is that the offender is a person who is at significant risk of re-offending. Notwithstanding that risk categorisation I am still faced with a very young man who despite previous appearances in this Court has not engaged in any meaningful rehabilitation or treatment. That is a live consideration when determining an appropriate sentence and the offender’s prospects of re-offending: R v Blackman and Walters [2001] NSWCCA 121 citing with approval King CJ’s remarks in Yardley v Betts (1979) 22 SASR 108 at 44.

Delay

39. Defence counsel also refers to the fact that the offender has been in custody now for some two years and three months. These delays were not the fault of the offender and occurred because the matter came before Court on three occasions at least in 2014. At one stage it was agreed that the matter should go over because there was a need for a call-up procedure to be followed. There were also two subsequent appearances, one of which meant that the matter was not reached which is becoming an increasingly common circumstance in this Court with the resources that it has. There were also apparently delays in finalising some remarks on sentence and various other reports which needed to be presented to this Court. The effect of this delay has had ramifications for the offender’s participation in courses within the custodial environment.

40. This delay has meant a degree of injustice for the offender in circumstances where there have been no delays brought by him or his legal representatives it would seem. The financial cutbacks imposed by the government across the Justice portfolio meant that offenders generally are kept on longer and longer periods of remand with the associated lack of certainty as well as the inability to fix the rehabilitation courses to the extent that they were available and also have not been the subject of cutbacks.

41. I will take that delay into account in determining the overall sentence, the exercise of discretion to fix the commencement date of sentence and in my consideration the need for a partial accumulation of the sentences against the background of the principles of totality.

Impact on the victim

42. A Victim Impact Statement from Ms NP has been tendered. In my view the matters set out are consistent with a response which might be expected from a young girl of those years suffering embarrassment and humiliation not only from the acts themselves but from her ongoing dealings with the police and her mother. Apart from those matters, which are of importance, I see no evidence of any substantial ongoing harm being caused to Ms NP. There does not seem to be any breach of a position of authority or trust by the offender, indeed, it seems that NP accompanied Mr Drake willingly on the occasion when the digital intercourse took place nor was it the subject of any kind of resistance from her it would seem. This is a feature similar to that of the offence to which the offender was tried and convicted. However, given her age there is no consent nor legal capacity to consent and that is something which Mr Drake needs to come to accept.

Offender: family

43. The offender did not give evidence, however, his mother did. Mrs Drake told the Court that the offender came from a large family with six children, four of whom, not including the offender have been diagnosed with Attention Deficit Disorder Syndrome.

44. The offender lived with his mother until he moved out with another person with whom he was then in a relationship. He was then aged 22. Mrs Drake said that she was aware of the charges and the issues which had arisen from the prior trial matter. She said that she was aware of some of the offender’s relationships including that with Elizabeth, the mother of his child, B, who was born in March 2012.

45. She had a limited awareness of his other relationships other than her perception that there were numerous such relationships. She was not aware of his practice of sending inappropriate communications to young girls. She is also not aware of his use of pornography from the age of 13 which involvement appears to have continued thereafter.

46. Mrs Drake said and I accept, that she visited the offender since he has been in custody bail refused from 9 August 2012. She has visited twice a week, every week since that time.

47. Mrs Drake expressed the offender has regretted what he had done. The offender, himself, as I have noted did not give evidence and that expression of remorse cannot be tested. From the hearsay evidence that I have including from Mrs Drake and to the extent that it is set out in the psychologist’s report what appears to be distressing the offender the most his is inability to contact his son and the ongoing restrictions which have been placed on him. While I have no doubt of Mrs Drake’s love for her son and the genuineness of her current desire to provide a home for him on upon his release I am concerned about whether she is likely to exercise effective supervision of him in the event that (as appears likely) he returns to live with her. Mrs Drake did not know that there were further conditions in place resulting from his previous convictions, for example, with his Internet usage or phone usage. Indeed, it appears that the offender confirmed at the time that there were no other conditions.

48. Mrs Drake seems motivated to “protect him from himself”. She considered that although he had the build of a man he is really just a boy and he needed her to make him understand things fully and adequately. The Agreed Facts and communication sent by the offender to the complainants support the mother’s conclusion and indicates a level of immaturity on the part of Mr Drake.

49. A necessary part of the offender’s rehabilitation will involve his interaction with his family particularly his brother and siblings. It is submitted that the fact that the offender’s mother and family are now fully apprised of the seriousness of his conduct and the ongoing restrictions that are placed on his behaviour give renewed confidence that the offender’s family will be of positive assistance to the offender in the future. However, I have some reservations in accepting that particularly given the frequency of Mr Drake’s offending and the rapidity with which it occurred after his criminal trial.

Consideration

50. What was involved in all these cases was a series of sexual offences involving either pre-adolescent or adolescent girls whom the offender attempted to contact through the use of electronic or mobile phone contact. The offender clearly set up a Facebook account including his name and photographs of himself. There does not seem to have been any or any significant attempt at deception in terms of his own identity or his age.

51. The extent of the offender’s actions became apparent as a result of the complaint made by Ms NP when she spoke to her mother and her mother took her to the police station. The complaints involving the other three victims, whose names are listed, seem to have been the result of private messaging and other conversations. It is clear that the offender generally tried to entice young girls to participate with him further in email or text conversations by extending credit to their respect phone accounts. One of those matters involving Ms M occurred on 30 April 2012 which is the same day that he, the offender, was attending a Sex Offender’s Program in Surry Hills. In my view that is a matter which gives support to the Crown’s submission that there has been a superficial engagement by Mr Drake to the extent of disregarding the messages he was getting in those programs or treating it with contempt. Whatever his views were as to the co-operation with respect to the victims, and it is clear that he regards them as having been willing participants in conversations with him, he must have known the criminality of what had occurred given his previous trial and conviction for similarly offending behaviour.

52. All the offences occurred in a relatively short period after the offender had been involved in a long trial where he was found guilty and was the subject to the sentencing process and the sentence itself by the District Court. There could have been no doubt that the offender was aware of the criminality of his conduct. However, it also highlights the need for this offender to undertake prolonged and intensive rehabilitation.

53. There does not seem to have been any manipulation or pressure by him on any of the victims nor does there seem to have been any commercial or other widespread for the dissemination of the material involving the complainants’ photographs or that of the offender himself. None of the counts involve acts of the offender which mean that there would be widespread embarrassment of any of the complainants as is sometimes the case with messages of pictures particularly amongst people of this age. That is to the offender’s credit. I find that any photographs obtained from the complainants were simply obtained and retained for his own pleasure. What was involved is a consistent and persistent contact with young girls by electronic means with the clear intention of meeting up with them or maintaining contact with them or storing explicit images of them. Neither the prior court proceedings nor the subsequent contact with the various probation and treatment authorities seems to have made much difference to him.

54. Following the trial the offender was placed on a suspended sentence with the appropriate bond conditions, however, it seems he did not engage with any particular course of treatment. It is evident that the offender needs to engage in such treatment if he is to become a functioning member of society.

Assessment of criminality of each count

55. Against the background of the matters I have set out and following submissions I find in relation to each count that the criminality is in the following range:

56. In terms of Count 1 with NP I find the criminality is between low and mid-range. I base this finding particularly on the fact that the offence occurred in circumstances where, for at least the majority of the time, the offender and the complainant were present with others. There was no force or violence which occurred and there does not seem to have been any lasting consequences to the complainant over and above her association with the acts involved and her subsequent experience with her mother and the police.

57. I find in relation to the remainder of the counts with the exception of Count 7, the criminality involved has been of low range in relation to each of these accounts.

58. In relation to Count 7 what was involved is a serious breach of the Child Registrar requirements. There are important policy considerations in relation to law enforcement and community safety generally. Sentences imposed for breach of these requirements need to be specially marked where, as here, the offender clearly understands the requirements on him. His account or excuse as to why he did not comply with this requirement is that he felt pressure from his girlfriend not to report changes in his address because of her embarrassment about living with him at the time. While that explanation is perhaps understandable there should be no doubt in the mind of anybody involved in these areas of law enforcement that there needs to be strict compliance.

Purposes of sentencing

59. I have had regard to the various, and at times overlapping, purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act and the principles expressed in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. . There is no attempt to rank the overlapping and sometimes conflicting purposes of sentencing in s 3A: Muldrock v The Queen (2011) 244 CLR 120 at 20.

Consideration of sentencing options

60. In terms of sentencing options, I am satisfied by reason of the facts, in particular the ages of the complainants and circumstances in which the actions took place as well as the personal circumstances of the offender and the matters set out above that the final option to be considered by any sentencing judge, namely, imprisonment, is the only option which will properly meet the purposes of sentencing. That is particularly the case here given the requirements of personal and general deterrence in the context of Mr Drake’s rehabilitation. All the offences except one were committed while he was on a bond.

61. The total sentence imposed needs to be seen against the fact that the offender has been in custody since 9 August 2012 arising from the breach of bond for the suspended sentence.

Consideration of totality

62. Totality is one of the most important issues in this particular sentence proceeding, here the offender as I have said has been in custody since 9 August 2012. The sentence for imprisonment which was suspended was one of twelve months. That was a separate sentence arising out of a trial involving totally separate circumstances and a different but again young complainant. Considerable leniency was extended to the offender for the reasons set out by Judge Haesler SC. That leniency was abused by the offender and within a very short period. In my view having regard to the matters set out in the remarks on sentence and the surrounding circumstances, the appropriate sentence for the breach of the suspended sentence is a non-parole period of eight months with a parole period of four months. To take into account principles of totality I will commence the sentences for the offences committed whilst on the bond from 9 April 2013, eight months after the date the offender went into custody.

63. Counts 1, 2, 3 and 8 all involved NP. Acts of intercourse involving young girls should be the subject of a penalty which marks the principles of general deterrence. Here also the requirements of specific or personal deterrence need to be borne in mind with this offender. This is particularly the case given the similarity of the offences in Count 1 and a number of the offences.

64. The other concerning factor is the rapidity with which the other offences occurred after the earlier sentence and the offender’s involvement with the Probation Service and the Sex Offenders Program.

65. The sentence imposed on Count 1 should be largely accumulated in that what is involved is an entirely separate kind of criminality from those involved in Counts 2, 3 and 8. Count 1 involved an act of digital penetration with a young 14 year old girl who was, as far as the offender concerned, a willing participant in what had occurred. Although a young man, the offender was much older than the complainant.

66. The sentences on Counts 2, 3 and 8 should be served concurrently. They involve essentially the same complaint of NP and arise out of the same method of communication and indeed the same relationship. They should be dealt with together to avoid a crushing sentence on the offender. There is some leniency to the offender in this approach.

67. Counts 4, 5 and 6 involve SM and BT. Each of these offences represent an attempt by the offender to initiate and pursue electronic forms of communication with different young girls for sexual purposes, whilst nothing actually came of them that sensation of activity was not brought about by the offender.

68. The sentences in relation to counts 4, 5 and 6 should be the subject of the same sentence. They will be served concurrently. The one common element is that the grooming of each complainant was clearly contemplated by the offender. Further, that he took steps to contact them repeatedly at a time when he must have known that he was restricted from such activities for those purposes.

69. Counts 7 and 9. They (as with Count 8) involve offences against the Sex Offender Registration and supervision schemes. While the breaches are not significant the Form 1 offences indicate there are a number of related breaches over a period of time. The purposes of sentencing need to include as an aspect of specific deterrence the message to the offender that these schemes are to be strictly complied with.

70. The sentences on Counts 7 and 9 should be the subject of concurrent sentences. They essentially relate to the same kinds of criminality concerned with the offender’s reporting obligations and his compliance with the various Registration schemes.

Plea of guilty

71. The Crown accepts, and I find it appropriate, there should be a discount on the sentence which otherwise would have been appropriate in the order of 25%. Timing of the plea meant that the complainants did not have to give evidence at the trial but were also spared of detail conferences with police and staff.

72. The offender did not give evidence although I note there is no statutory requirement that the offender must give evidence before remorse can be taken into account: Butters v The Queen [2010] NSWCCA 1. In Alverez v R; Farache v R [2011] NSWCCA 33, Buddin J said:

"It is important to emphasise that the court was not taken to any decision in which it has been authoritatively stated that an offender will only be entitled to the benefit of a finding of remorse in the event that he or she gives sworn evidence to that effect...Indeed it would be surprising if there was any such authority because it is readily apparent that an offender may, in some circumstances, demonstrate remorse by either words or conduct without giving sworn evidence...There are other types of conduct on the part of an offender which may well also be indicative of remorse".

73. To the extent relevant, there is some remorse reflected in the plea, however, that needs to be balanced against the impression gleaned from the various reports as to the offender’s belief in his responsibility for criminal conduct involving young girls. Mr Ozen sought that there be an additional discount in respect of remorse and contrition inherent in the plea and as to what was said to be evident from Mrs Drake when she gave her evidence of what she observed the offender’s reaction to have been while he has been in gaol. I do not think that there should be any further discount available to the offender than that contained in the 25% plea discount for the plea of guilty, in particular the timing of these repeat offences means the offender is not entitled to any leniency which otherwise would be extended to him particularly because of his age and the absence of prior convictions before the trial matter.

Special circumstances

74. The offender is aged 23. He is still comparatively a very young man. This is his first time in custody and he has spent most of his time since August 2012 on limited association due to the nature of these offences.

75. Mr Drake identifies as having an indigenous background. He comes from a supportive family but there is little indication or evidence that that family has been able to influence him to the extent of controlling his contact with young girls for clearly sexual purposes. In my view it is appropriate that there be a finding of special circumstances having regard particularly to his age and his need for long term supervision in circumstances which will require close scrutiny of both his contacts and his communications, in particular any electronic or telephone communication. That is likely to cause inconvenience to him but that is not necessarily the price that he will have to pay for the methods he has adopted in grooming young girls for sexual purposes over the period of time I have set out.

76. I will be recommending as part of his parole conditions that any recommendations made following any participation by him in Cubit Program or any other sex offender program within the custodial environment be the subject of supervision by New South Wales Community Corrections. I will adjust the statutory ratio such that the total period of imprisonment is 60% of the total sentence on all charges. To ensure that there is no doubt about this matter I will specifically note that the adjustment to one of 60% applies to the total sentence imposed and that of the actual period of imprisonment in all the charges.

Forms 1

77. I have taken into account the offences contained in the various Forms 1, being 1A, 1B and1C and in the way set out in the Act and the relevant authorities. In that way the sentences for Count 7, 8 and 9 reflect the additional criminality involved in the Form 1 offences.

Transparency of sentence

78. On Count 1 the offender should be sentenced to a head sentence which would otherwise be imposed of three years and four months’ imprisonment to which would be applied the discount of 25% resulting in a head sentence of two years and six months. Applying my finding of special circumstances of two-thirds, that would mean the period of non-parole period imprisonment would be one of 18 months.

79. Counts 2 and 3 involving Ms NP should be the subject of a concurrent term of three months’ imprisonment for each offence. Count 8 should be the subject of a fixed term of two months’ imprisonment. The sentence on these three counts should be served concurrently with the sentence on Count 1.

80. With respect to the sentences for the matters involving the other three complainants, counts 4, 5 and 6 should be each of the order of a fixed term of three months imprisonment for each offence. The sentence in relation to count 7 should be the order of a fixed term of two months imprisonment and the sentence in relation to count 9 should be the order of a fixed term of one month imprisonment. Those two sentences are to be served concurrently.

Totality

81. Turning back and considering the total sentence thereby to be imposed is one of the head sentence of two years and six months imprisonment and a non-parole period of one year and eight months imprisonment. I am satisfied that this is a proper total sentence.

Sentence

Commencement date

82. The defence submits and the Crown accepts that the sentence should be backdated to commence on the 9 August 2012. Taking into account the breach of the suspended sentence, it appears that the offender was on a short period of bail which the Crown does not seek to be added to the overall sentence. The sentence will be backdated according to 9 August 2012 and that includes the sentence for the breach of bond attached to the s 12 suspended sentence.

Sentence

83. You are convicted on each of those counts.

84. In relation to each of the counts I impose the following sentence.

85. For the breach of the s 12 bond I direct that the s 12 bond be revoked. The offender is sentenced to a non-parole period of eight months imprisonment commencing 9 August 2012 and expiring 8 April 2013, a balance of term of four months. The head sentence is twelve months, expiring 8 August 2013. So that is the suspended sentence that Judge Haesler SC imposed.

86. In relation to breach of the Commonwealth bond I direct that no action be taken.

87. In relation to Offence 1, that is the sexual intercourse involving NP, for which the maximum penalty is one of 10 years imprisonment. You are sentenced to a head sentence of two years and six months commencing on 9 April 2013 and expiring on 8 October 2015 consisting of a non-parole period of imprisonment of one year and six months commencing on 9 April 2013 and expiring on 8 October 2014.

83. Offence 2, the grooming of NP, for which the maximum penalty is one of 12 years imprisonment. You are sentenced to a fixed term of imprisonment of three months commencing on 9 February 2014 and expiring on 8 May 2014.

84. Again, in relation to possess child abuse material for NP, a fixed term of imprisonment of three months commencing on 9 February 2014 and expiring on 8 May 2014.

85. In relation to Count 4, in relation to the complainant PS, a fixed term of imprisonment of three months commencing on 9 July 2014 and expiring on 8 October 2014.

86. Offence 5, that is the one involving CS for which the maximum penalty is also 12 years imprisonment, you are sentenced to a fixed term of imprisonment of three months commencing on 9 July 2014 expiring on 8 October 2014.

87. In relation to Count 6, re LT, a fixed term of imprisonment of three months commencing on 9 July 2014 and expiring on 8 October 2014.

88. In relation to Offence 7, not informing the police of your current residential address, taking into account Form 1A, I fix a term of imprisonment of two months commencing on 9 October 2014 and expiring on 8 December 2014.

89. For Offence 8, in relation to regular unsupervised contact with NP, taking into account Form 1B, you are sentenced to a fixed term of imprisonment of two months commencing on 9 February 2014 and expiring on 8 April 2014.

90. For Offence 9, that of writing to EB requesting to see your son, taking into account Form 1C, again a fixed term of imprisonment of one month commencing on 9 October 2014 and expiring 8 November 214.

91. So the overall effect of the sentence will be that you will be released from custody on 8 December 2014. Do you understand that?

92. OFFENDER: Yes.

93. HIS HONOUR: That is the operative date as far as you are concerned.

94. OFFENDER: Yes.

95. HIS HONOUR: That will mean that you will be home in time for Christmas. I want you to bear this in mind Mr Drake, on one view I have dealt with you very leniently because I am concerned that you are a young man who was out of control when you were but that you need to be fully aware that that has got to stop. You were dealt with very leniently indeed by Judge Haesler SC in this Court in my view and you abused that leniency and that opportunity pretty quickly.

96. On 8 December 2014 I recommend the offender’s release to parole subject to the following conditions:

97. To maintain and observe such conditions:

• as may be imposed upon him by those conducting the CUBIT programme or any other sex offenders program, in particular to notify Community Corrections of his address or any address that you occupy;

• comply with any requirements as to the use of electronic or telephonic communications including Facebook and the operation of any mobile phone and that he notify Community Corrections of the address;

• That he attend within 14 days of his release to parole any one of the following services as may be recommended by Community Corrections:

1. Forensic Psychology Services Pty Ltd at Surry Hills;

2. Pastoral Counselling Institute; or

3. NSW Commission for Children and Young People’s Child Sex Offender Counsellor Accreditation Service

And comply with any recommendations of that service.

**********

Decision last updated: 14 January 2015