R v West

[2016] NSWDC 397

District Court

New South Wales

Medium Neutral Citation:	R v West [2016] NSWDC 397
Hearing dates:	18 November 2016
Date of orders:	18 November 2016
Decision date:	18 November 2016
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to an aggregate sentence of imprisonment consisting of a non-parole period of 11 years and a head sentence of 15 years
Catchwords:	CRIMINAL LAW – Sentence – Form 1 – Sexual intercourse with a child between the ages of 14 and 16 – Sexual intercourse with a child between the ages of 10 and 14 - Aggravated indecent assault – Possess child abuse material – Produce child abuse material
Category:	Sentence
Parties:	The Crown Jarrett West
Representation:	Counsel: Mr P Gilson – Crown Mr N Steel - Offender   Solicitors: Director of Public Prosecutions - Crown
File Number(s):	2015/1689702015/297802
Publication restriction:	There is to be no publication of the names of the complainants or of any material which may tend to identify the complainants

SENTENCE

1. HIS HONOUR: Offences involving the sexual abuse of children are some of the most serious offences in the criminal calendar. Often, harsh sentences are required to reflect the awful nature of the offences committed. The authorities tell us that condigned punishment is required on occasions. There is no mystery as to why such sentences are required.

2. The offences I am about to describe harmed a significant number of children, two directly and many more indirectly. The criminal law needs to operate in a way that would deter offenders such as Jarrett West from abusing children and causing harm to them. It is for this reason that the sentences I ultimately impose upon the offender will require him to spend a significant time in gaol and, thus, a significant proportion of his life in custody.

3. It will take me some time to outline what the offender did. Matters came to the attention of authorities in the middle of 2015. The parents of a 14-year-old boy were concerned about what he had been doing. They, therefore, took him to a police station, where he was interviewed. He told them that he had met the offender on a website known as Kik about a month before.

4. He told police that part of that website allowed users to meet each other online and recreate fantasies. He had met the offender online. He told the offender that he was 14 years of age and went to Homebush Boys High School. The offender told the complainant, falsely it must be noted, that he was 20 years old. They communicated over the internet for a while before eventually the offender started asking sexual questions of the complainant. He sent him images of his genitals. Over the next few days, the two of them spoke over the internet every few days.

5. They arranged to meet on Saturday 23 May 2015. This is when the first of the offences for which the offender must be sentenced occurred. The young boy’s mother took him, she believed, to be tutored in science, but he did not go to his tutor. Instead, as prearranged, he went to a nearby location where the offender was parked in his car. The two then drove to a quiet street and performed various forms of sexual activity.

6. The first offence consisted of the offender exposing his erect penis, after which the complainant put it in his mouth and proceeded to suck it. This is an offence of having sexual intercourse with a child between the ages of 14 and 16 for which the maximum penalty is ten years imprisonment. When I sentence him for that, he asks that I take into account a number of matters on a form 1 attached to that offence. After the sexual act that I have just described occurred, the complainant took his own pants down and the offender began to suck on the complainant’s erect penis. That is the first of the matters on the form 1.

7. After a while, the offender stopped performing oral sex on the complainant’s penis and the complainant proceeded to suck on the offender’s penis for a number of minutes until the offender ejaculated inside the complainant’s mouth with the complainant swallowing the offender’s semen. That is another offence of sexual intercourse with a child between the ages of 14 and 16. The final sexual act, which also appears on the form 1, occurred when the offender performed oral sex on the complainant until he ejaculated. After this, the offender dropped the complainant back to his tutor class.

8. It was arranged between the two of them that they would meet up again, so about six days later, the complainant snuck out of his home and walked as prearranged, to the offender’s car, which was parked nearby. They kissed for a period before the offender said, “I have a surprise for you.” He produced a dildo. He rubbed lubricant onto it, took down the complainant’s pant and underwear, and inserted the dildo into the complainant’s anus, almost completely enclosing the object inside him. The complainant cried out in pain and asked the offender to stop. He did remove the dildo. That is another offence of sexual intercourse with a child between the ages of 14 and 16.

9. Another act of sexual intercourse occurred - this appearing on the form 1 - when the complainant performed oral sex on the offender’s penis for about ten minutes. The next act of sexual intercourse consisted of the offender again producing the dildo and, again, putting it in the complainant’s anus. After a while, the complainant felt uncomfortable and asked the offender to stop and, again, he did so. Then the complainant performed oral sex on the offender’s penis until he ejaculated inside his mouth. That is another act of sexual intercourse with a child aged between 14 and 16 appearing on the form 1. The offender then took the victim home, arriving there at about 3 am.

10. Another arrangement was made, this time, that they would meet on Saturday 5 June 2015. Somewhat disturbingly, the offender told the complainant to wear his school jumper to this meeting. The offender suggested that they could meet up at his, that is, the offender’s home, as his parents were away and the house was otherwise unoccupied. Once more, the complainant snuck out of the family home and was picked up by the offender outside his address. As they drove to the offender’s home, the complainant fondled the offender’s penis and the offender began to rub the complainant’s groin above his clothing. That latter sexual act is an offence of aggravated indecent assault. It carries a maximum penalty of ten years with a standard non-parole period of eight years.

11. Once they got to the offender’s home, they went inside, they removed their clothing, and began hugging, rubbing their erect penises together and over their bodies. At this stage, the offender took photographs of the complainant’s naked body. The aggravated indecent assault I have just described appears on the form 1. There were then two acts of sexual intercourse. The offender began performing oral sex on the complainant’s penis and suggested that they engage in mutual fellatio. One of the acts of sexual intercourse is on the form 1 and the other is a matter for which the offender must be specifically sentenced.

12. After for a few minutes of what the police facts describe as “head-to-toe fellatio”, the offender told the complainant to get onto his hands and knees. The complainant complied and, again, the offender applied lubricant onto a dildo and began inserting it into the complainant’s anus. This is yet another offence of sexual intercourse with a child aged between 14 and 16. This time, the complainant’s phone rang.

13. It was the complainant’s brother, who made inquiries as to what was going on. The complainant’s parents also spoke to him and they told him that they were concerned because they were worried about his whereabouts, considering his young age. The offender spoke with the complainant’s parents himself, insisting he was the father of a friend of the complainant’s. The offender then drove the complainant back home, telling him to lie to his parents about what he had been had been doing and maintain the version that he had provided to his parents over the phone.

14. As I have mentioned earlier, eventually the complainant’s parents took him to the police and investigations began. They revealed a great deal of incriminating evidence. The contents of the offender’s bedroom were examined during the search of the premises, DNA analysis suggested links with the complainant, and, when speaking to police, the offender told them that he had been performing sexual activities with a person named as “Kevin”.

15. DNA analysis of the offender’s car also provided incriminating material. As part of their investigations, police also seized a number of electronic storage devices, as well as the offender’s Apple iPhone. Investigations revealed an enormous quantity of child abuse material stored on those various devices. I will return to the offences that arise out of what was discovered on the storage devices later.

16. After the search of the offender’s premises was completed, he was taken to a police station where he was interviewed. He made a number of admissions. When he was asked about the allegation that he had requested the complainant to wear his school uniform jumper, he declined to comment but said it sounded like a fetish.

17. He later on admitted to using the Kik website, and said that site is used for people who want to roleplay, including with fetishes. He was asked how old he thought the complainant was. He said that he had forgotten, but thought that he was between the age of 14 and 17. Clearly, the offender was prepared to have sexual intercourse with the child, even though he was under the age of consent, as he turned out to be. He spoke to the police about being sexually attracted to teenagers of both sexes. He told them that he is not socially active with his own peers, and he then made admissions to downloading, saving, and distributing child pornography.

18. That brings me to the offence of possession of child abuse material, an offence carrying a maximum penalty of ten years imprisonment. Mr Steel, who appears for the offender, has helpfully summarised the contents of the various storage media which the police investigated. It is not necessary to go into any great detail beyond noting that there was a substantial quantity of child abuse material, both images and videos, and that they covered various categories of seriousness. Few were in the worst category, category 5, but there were a significant number of category 4 images and videos, which refers to penetrative sexual activity between children and adults.

19. The statement of facts tendered by the Crown suggests that a large number of the images and video files depicted children as young as five engaging adults in penetrative sex. The offender not only downloaded and possessed child abuse material, he distributed it as well using his mobile phone. A forensic examination of that phone revealed 34,455 messages exchanged between the offender and 1206 others. It was discovered that he had distributed significant amounts of child abuse material through this medium, as well as receiving significant amounts of child abuse material as well.

20. It appears that the platform the offender was using was commonly used by him to engage others in the exchange of child abuse material. It was obvious, also, that the offender engaged people who said they were aged younger than 16 and incited them to provide him with nude photos of themselves and also incited them to provide images of themselves engaged in solo sexual acts. There was also a particular image which has led to a further charge, an offence of production of child abuse material. When the phone was being examined, investigators located an image of the complainant performing oral sex on the offender’s erect penis. This was apparently taken by the offender during his first sexual encounter with the complainant on 23 May 2015.

21. I now move to the next series of offences committed by the offender. These were committed upon a separate complainant, a 12-year-old girl. It is apparent that police became aware of these offences through an examination of the offender’s phone because he had, once again, recorded himself performing sexual acts upon a child. This complainant and the offender first met each other, again, over the internet in 2012. They communicated for a while and, although the complainant initially told the offender she was 14 years of age, she eventually - and certainly before the commission of any offences by the offender - told him that she was aged only 12.

22. After the complainant’s 12th birthday, the offender picked her up from her home and took her to a nearby park, where he kissed her and touched her body and upper legs outside her clothing. The complainant felt uncomfortable with what was happening and walked home. That is an offence of committing an act of indecency, appearing on a form 1 attached to an offence of sexual intercourse with a child between the ages of 10 and 14, involving this new complainant, which I will describe in a little while.

23. The next offence I will describe also appears on the form 1 and it is another offence of committing an act of indecency. The complainant was aged 12, but still in year 6 of primary school, when the offender picked her up from her grandparents’ home. They drove to a reserve and, once again, the offender kissed and touched the body and upper legs outside her clothing before driving her home. Also in 2012, the complainant ran away from home. She contacted the offender and asked him to pick her up. Instead of doing what any decent person would do, the offender took the opportunity of the complainant’s vulnerable position, effectively being homeless, to abuse her in a most serious way.

24. He did what she asked. He did pick her up, but he then drove her back to his home. His parents were not there. He gave her an alcoholic drink, they went to bed, and had penile vaginal intercourse. It is unclear whether a condom was used. The following morning, the complainant woke up with a sore vagina and stomach.

25. Then in late 2012, there were three further offences of having sexual intercourse with a child between the ages of 10 and 14. The offender drove the complainant, still only 12, to a hotel. He insisted that she wait for him in the car while he secured a booking, presumably because he did not want hotel staff to see what he was up to.

26. After he had got a room, he went back, collected the complainant, and took her into the hotel. They watched television for a while before the offender went and bought some takeaway food for dinner and, once again, they had penile vaginal intercourse, again, the complainant being unsure whether he wore a condom. During that sexual activity, other forms of sexual intercourse occurred. The complainant performed oral sex on the offender’s erect penis and he performed cunnilingus on her. The next morning, he drove her home. They remained in contact after these events, but no further sexual activity was reported.

27. As part of the investigations carried out by police some years later, police discovered photographs depicting this complainant and the offender performing various sexual acts. There was a photo of her performing oral sex on the offender in a parked vehicle and also in a room, which may have been the hotel. There were images of the offender performing cunnilingus on the complainant in the back seat of a vehicle and also in a room, again, possibly a hotel. There were images of the offender’s erect penis penetrating the complainant’s genitals. These images appeared to be on a bed and it was clear that the offender was not wearing a condom at that time. The complainant had also told police that the offender had purchased a blue‑coloured vibrator for her. A number of images on the offender’s mobile phone showed the complainant with a vibrator and also penetrating her vagina with that object. There are many other images of the complainant, too. She was naked in a spa bath. Again, those photos were believed to have been taken in the hotel room. The offender was interviewed in relation to these allegations as well. He admitted to engaging the complainant on two occasions for sexual intercourse. He said he did not wear condoms, but withdrew his penis prior to ejaculation.

28. He admitted to taking pictures of himself and the complainant engaged in various sexual acts and he admitted to buying and provided flavoured alcohol to the complainant.

29. To say that these offences are serious is an understatement. These children were abused by the offender for his own lustful purposes. They needed to be protected. They were not mature adults, unlike the offender, who could rationally make the decision as to whether they wished to consent to sexual activity. They needed to be protected and other children in their position do need to be protected by the criminal law.

30. Those two children have been harmed by direction sexual contact with the offender, but many, many other children have been harmed through the offender’s possession and dissemination of child abuse material. There are evil people in this world, who think nothing of abusing children simply because there is a demand for child pornography. The offender is one of those who feeds that demand, which leads to children being abused in horrible ways as those evil people produce material so that people like the offender can view it.

31. The offender pleaded guilty at an early stage and so the sentence I will impose upon him will be 25% less than it would otherwise have been. I have noted that one of the offences carries with it a standard non-parole period. I have taken into account the maximum penalties for all offences and the standard non-parole period for that particular offence in determining the appropriate sentence to impose upon the offender. My reasons for not imposing that standard non-parole period appear in these remarks on sentence.

32. I know surprisingly little about the offender. I have three documents tendered on his behalf. Firstly there is a reference from an employer, which merely notes that he was a good worker at the time of the offending. Secondly I have a letter from his mother, in which she speaks of the offender’s kindness towards others and his intelligence. She speaks of him attending university and forming new friends, who, even after he had finished his studies, continue to call him for help with their assignments. It may be that the offender is not as socially isolated as has been suggested. Finally I also have a psychological report from a Reverend Peter Powell. Although it is lengthy, it is somewhat short on detail.

33. There is material suggesting that the offender is remorseful for what he has done. His cooperation with the authorities, his admissions to them, and what he has said to others indicated a willingness to accept responsibility for his misconduct. I will find that he is remorseful. To be specific, he told the psychologist of a desire to be accountable. I will accept that the offender regrets what he has done. As for his prospects of rehabilitation, they are difficult to determine. Much will depend on what happens regarding treatment, both the offender’s willingness or otherwise to accept it, and its usefulness to him. I accept Mr Steel’s submission that his prospects of rehabilitation are reasonable if he does engage in that treatment.

34. Of course, fundamental to the assessment of the appropriate sentence to impose upon the offender is an assessment of the objective gravity of these offences. As I have noted, the female complainant was 12 years of age, about the middle of the age range for the offence relating to her. The male complainant was 14 years of age. Again, in about the middle of the range, of ages covered by the offences involving him. There was no force used, but of course that was not necessary because of the offender abusing the naivety of the complainants. There is no suggestion that he held a position of trust, although as I have noted, when the female complainant rang him up after running away from home, he did not do what any decent human being would do. As Mr Steel does point out, and I accept this, he voluntary ceased his offending regarding the female victim, but the same cannot be said for the offences involving the male victim.

1. The offences involving the two specific children were all planned and the offender was fully aware of the age of the children. He, in a real sense, has preyed upon them. Regrettably, that is not an uncommon feature of offences of this type. Older adults use the anonymity of the internet to engage in conversations with children, intending, it is usually the case, to put themselves in a position where they can perform various sexual acts upon them.

2. Also important in assessing the overall sentence imposed upon the offender is a consideration as to the level of accumulation which is required. I believe that there is a substantial level of accumulation required to reflect the various forms of harm that the offender’s crime have caused. I mentioned this already, but it is worth repeating: there were two direct victims harmed by the offender’s actions and many, many more harmed by his indirect actions in possessing and disseminating child abuse material.

3. I return to where I began. A significant custodial sentence is required to reflect both the seriousness of the offender’s crimes and to deter others who may be tempted to act in this way in order to satisfy their own sexual desires.

4. I will impose an aggregate sentence. Were I not to have done so, I would have imposed following sentences, and I will be using the offence numbers from the Crown’s sentence summary.

5. For offence 1, four-and-a-half years imprisonment; for offence 2, four‑and-a-half years imprisonment; for offence 3, four years imprisonment; for offence 4, four years imprisonment; for offence 5, two years imprisonment with a non-parole period of 18 months; for offence 6, three years imprisonment; for offence 7, four years imprisonment; for offence 8, five years imprisonment; for offence 9, five years imprisonment; for offence 10, three years imprisonment; for offence 11, eight years imprisonment; for offence 12, seven-and-a-half years imprisonment; for offence 13, six years imprisonment; for offence 14, six years imprisonment; and for offence 15, five years imprisonment.

6. The aggregate sentence I impose consists of a non-parole period of 11 years with a head sentence of 15 years to date from 8 June 2015. The non-parole period will expire on 7 June 2026, on which day the offender is eligible to be released to parole. As is obvious, I have found special circumstances. They consist of the need for there to be lengthy monitoring of the offender’s attendance at, and benefit from, sex offending programs in the community.

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Decision last updated: 22 February 2017