R v Whittaker
[2021] ACTSC 189
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Whittaker |
Citation: | [2021] ACTSC 189 |
Hearing Date(s): | 13 August 2021 |
DecisionDate: | 19 August 2021 |
Before: | Murrell CJ |
Decision: | Sentenced to nine years and six months’ imprisonment with a four year and nine months’ nonparole period |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth and Territory offences – engage in sexual relationship with child – commit act of indecency on person under the age of 16 – sexual intercourse with person under the age of 16 – use child to produce child exploitation material – possess child abuse material |
Legislation Cited: | Crimes Act 1900 (ACT) ss 55, 56, 61, 64, 65 Crimes Act 1914 (Cth) ss 16A, 16AAB, 16AAC, 19, 19AB, 19AF, 19AJ Firearms Act 1996 (ACT) s 181 |
Cases Cited: | R v Aniezue [2016] ACTSC 82 R v Degioannis [2019] ACTSC 47 Will v The Queen (No 2) [2021] ACTCA 14 |
Parties: | The Queen (Crown) Scott Ian Whittaker (Offender) |
Representation: | Counsel A Chatterton (Crown) J Raine (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Raine Litigation Lawyers (Offender) | |
File Number(s): | SCC 130, 131 of 2021 |
MURRELL CJ:
Introduction
The offender is to be sentenced for the following offences, which were committed between November 2017 and March 2021:
(a)Count 1: Between 6 November 2017 and January 2019, engage in sexual relationship with child or young person, contrary to s 56(1) of the Crimes Act 1900 (ACT) (Crimes Act)
The maximum penalty for the offence is imprisonment for 25 years.
(b)Counts 2, 13 and 19: Commit act of indecency on another person who is under the age of 16 years, contrary to s 61(2) of the Crimes Act (on 21 January, 29 August 2018, and 6 November 2018).
The maximum penalty for each offence is imprisonment for 10 years.
(c)Counts 5, 7, 9, 11, 15, 17, 21: Engage in sexual intercourse with another person under the age of 16 years, contrary to s 55(2) of the Crimes Act (on 1 March, 28 March, 17 April, 28 April, 11 October, 29 October, and 7 December 2018).
The maximum penalty for each offence is imprisonment for 14 years.
(d)Counts 6, 8, 10, 12, 14, 16, 18, 20, 22: Use a child 12 years or older to produce child exploitation material, contrary to s 64(3) of the Crimes Act (on 1 March, 28 March, 17 April, 28 April, 29 August, 11 October, 29 October, 6 November, and 7 December 2018).
The maximum penalty for each offence is imprisonment for 10 years, a fine of $160,000 or both.
(e)Counts 3 and 4: Use a carriage service to transmit an indecent communication to person under 16 years of age, contrary to s 474.27A(1) of the Criminal Code Act 1995 (Cth) (Criminal Code) (on 22 January and 27 January 2018).
The maximum penalty for each offence is imprisonment for 10 years.
(f)Count 23: Possess child abuse material obtained by using a carriage service, contrary to s 474.22A(1) of the Criminal Code (on 22 March 2021).
The maximum penalty for the offence is imprisonment for 15 years. For offences committed after 23 June 2020, where a person has previously been convicted of a child sexual abuse offence, subject to exceptions, there is a mandatory minimum sentence of 4 years’ imprisonment.
(g)Count 24: Possess child exploitation material, contrary to s 65(1) of the Crimes Act (on 22 March 2021).
The maximum penalty for the offence is imprisonment for 7 years, a fine of $112,000, or both.
(h)Count 25: Fail to store firearms in an approved locked receptable, contrary to s 181(1)(a) of the Firearms Act 1996 (ACT) (Firearms Act) (on 22 March 2021). The maximum penalty for the offence is imprisonment for 1 year.
The evidence in support of Count 1 largely comprises of the images depicting the complainant that evidence Counts 2, 13, 19 (commit act of indecency on another person under the age of 16) and 5, 7, 9, 11, 15, 17, 21 (engage in sexual intercourse with another person under the age of 16), which are the subject of Counts 6, 8, 10, 12, 14, 16, 18, 20, 22 (use a child 12 years or older to produce child exploitation material) and Counts 3 and 4 (use a carriage service to transmit indecent communication). All these offences concern the complainant.
Count 23 concerns at least 100 children other than the complainant.
In relation to each charge, the offender pleaded guilty at the third mention in the Magistrates Court. The Crown conceded that the pleas were entered at the earliest reasonable opportunity. They have significant utilitarian value. Pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), it is appropriate that I discount the sentences that I would otherwise have imposed by 25%.
Facts
Background
The complainant, Jade Hadaway (a pseudonym), was born in January 2003. In January 2019, she turned 16. In the period of November 2017 to January 2019, she was 14–15 years old. In September 2017, at 14 years of age, the complainant commenced employment with Kmart Belconnen.
The offender was born in June 1982. In the period of November 2017 to January 2019, he was 35–36 years old.
From December 2016 to March 2018, the offender was employed by Kmart Belconnen as duty manager and store inventory manager. He was not the complainant’s supervisor, but his duties gave him access to Kmart’s rostering system, which contained the personal information of each employee, including their date of birth.
The offender would have been reminded of the complainant’s age in October 2018, when she sent a video to him via the instant messaging service Snapchat, showing her ACT learner driver’s license, which she received when she was 15 years and nine months old.
Count 1—Relationship from November 2017 to January 2019
On 6 November 2017, the offender and the complainant began to communicate frequently, using Snapchat.
On 1 January 2018, the offender messaged the complainant:
Dear [Jade], I can’t believe 2017 is at an end, and 2018 is upon us, and if I [w]ere to look at last year, and where I was then, there is no chance I would have thought that I would have the most amazing girl, someone who makes me as happy as I’ve even been, someone who has shown me that my previous thoughts on love were all a lie! You have to show me what true happiness is, you have show [sic] me what it feels like to be loved! And I can’t thank you enough, for being so perfect, for being so beautiful, and for just being you. Most of all, I thank you for being mine, and I promise to love and cherish you till the end of time! Happy New Year baby girl.
The complainant replied “Awwwww I love you so so so so so so so so so so so much and I forever and always will”
In January 2018, on the complainant’s 15th birthday, the offender messaged:
My beautiful baby girl I can’t believe it’s your birthday already! I remember us joking about how it needs to hurry up, and now it’s finally here I really hope you have the most amazing day princess, I hope you’re spoilt, and that it’s the best birthday you’ve ever had! I love you darling, and I always will! You’re just so perfect, and I [sic] words do not do justice to just how much I love and adore you! Happy birthday my angel, I love you, with all my heart and soul, and I will till the end of time.”
The complainant replied “Awwwwwww I love you so so so so much”
On 14 February 2018, the complainant sent the offender a Snapchat message wishing him a happy Valentine’s Day, in which she said that she was “head over heels in love” with him, felt safe with him, felt cared for and respected, and that he was the person with whom she had “done alllll her firsts”.
The offender replied:
OMG [Jade] I can honestly say that I am so completely speechless right now! Wow! Sweetheart I cherish you, I really do, and I can say from the bottom of my heart that I have never loved anyone even nearly half as much as I love you! You are truly the most beautiful girl in the world, and I am so blessed to call you my girlfriend the love and happiness you bring me is phenomenal, and I couldn’t thank you enough for being the perfect girl that you are! I love you so very much [Jade], and I forever and always will! I am yours till the end of time, and promise to always love and respect you, to always be there and do all that I can to make you happy! I love you with all of me, and forever and always will! Eternally happy Valentine’s Day baby girl.
The offender and the complainant used Snapchat to communicate frequently, generally daily. Some messages were mundane. Others were overtly sexual in nature.
Between January 2018 and January 2019, their sexual relationship involved the sexual activity described below, including penile/vaginal intercourse, fellatio and other sexual acts.
The offender’s relationship with the complainant extended beyond her 16th birthday in January 2019, when it ceased to constitute a criminal relationship.
Objective seriousness and comparable cases Count 1
The maximum penalty of 25 years’ imprisonment indicates the seriousness with which the legislature regards such offences.
Objectively, this was a serious offence of its type.
Sexualised exchanges occurred from at least early January 2018. By mid-January, there was hugging and kissing (see Count 2). By March 2018, it had progressed to penetrative activity and by April 2018 it had progressed to penile/vaginal intercourse. Over a lengthy period, the offender engaged in a wide variety of sexual interaction with the complainant, including significant penetrative interaction.
Relevantly, the sexual relationship lasted for 12 months, from January 2018 (when the complainant was 14 years old, just prior to her 15th birthday) to the complainant’s 16th birthday in January 2019. It was a long relationship.
During the relationship the offender was 35–36 years old, i.e 20 years the complainant’s senior. The very significant age difference bespeaks a heavy power imbalance and aggravates the offender’s culpability.
On the other hand, during most of the relationship, the complainant was 15 years old (at the upper end of the age range for children who may be the victims of such an offence).
The offender was not in a position of trust or authority vis-à-vis the complainant.
The offences were not committed in the complainant’s home, but in the offender’s home. They were not accompanied by emotional blackmail or other manipulation. They did not involve violence or threats of violence. The sexual acts were not inherently degrading or humiliating to the complainant. There is no evidence of associated drug use or supply of drugs to the complainant.
The complainant perceived that her relationship with the offender was one of “boyfriend/girlfriend” in which she consented to the sexual interaction. This perception does not detract from the abusive nature of the relationship. By virtue of her age, the complainant lacked the capacity to give real consent. One cannot conclude that a sexual relationship involving a child within a “boyfriend/girlfriend” relationship is any less damaging than a sexual relationship involving a child who is not in a “boyfriend/girlfriend” relationship with the perpetrator. It may be more psychologically damaging; in this case, there is no evidence one way or the other. The law says that such relationships are inherently abusive and cause significant harm: R v Jones [2019] ACTSC 124 at [31].
I infer that the complainant has suffered very significant psychological injury.
I was referred to the somewhat comparable cases of R v KC [2020] ACTSC 94, R vDegioannis [2019] ACTSC 47, R v KN (No 2) [2019] ACTSC 5, R v Michalopoulos [2020] ACTSC 27 (Michalopoulos), and R v Jones [2019] ACTSC 124. These cases suggest a common sentencing range with a starting point of four to eight years’ imprisonment. The facts in Michalopoulos were somewhat similar to those in the present case and the starting point for the sentence was six years’ imprisonment.
Counts 2 and 3—January 2018
On a day in January 2018 (when the complainant was 15 years old), the offender took seven photographs of himself and the complainant hugging and kissing (Count 2). On the following day, he sent the images to her via Snapchat (Count 3).
Objective seriousness Counts 2 and 3
The conduct that was depicted was hugging and kissing, and the complainant was 15 years old, a relatively old child. The transmission was to the complainant only. These offences are of low objective seriousness.
In relation to the transmission offence, I was referred to the somewhat comparable decision of R v Aniezue [2016] ACTSC 82, in which a sentence of 10 months’ imprisonment was imposed after a plea of guilty, at a time when the maximum penalty was seven years’ imprisonment. The facts were more serious than those in the present case.
Count 4—27 January 2018
On 27 January 2018, when the complainant was 15 years old, via Snapchat the offender sent her two videos depicting an adult male masturbating and ejaculating onto his stomach.
Objective seriousness and comparable cases Count 4
The offence is objectively serious because of the graphic content of the video transmissions and the age difference between the offender and the complainant. However, the transmission was designed to reach only one person.
Counts 5 and 6—1 March 2018
On 1 March 2018, the offender recorded a video of himself digitally penetrating the complainant’s vagina. Thereafter, he recorded her putting on her underwear and high school uniform.
Objective seriousness Counts 5 and 6
Count 5 is objectively serious because it involved penetration. The complainant was 15 years old, but the extent of the age difference between the complainant and the offender is relevant.
I infer that the offender produced the child exploitation material for his own gratification, rather than for dissemination. The material was produced with the complainant’s knowledge, although she would not have known the period for which the offender would keep the material; he retained it for more than 12 months. As with similar material that police found on 22 March 2021, I infer that, but for police intervention, the offender would have retained the material for longer.
Counts 7 and 8—28 March 2018
On 28 March 2018, the offender recorded a video of the complainant, who was naked and lying on her hands and knees on a bed while he engaged in sexual intercourse by inserting an aerosol container into her vagina.
Objective seriousness Counts 7 and 8
The observations relating to the objective seriousness of Counts 5 and 6 apply.
Counts 9 and 10—17 April 2018
On 17 April 2018, the offender recorded a video of himself engaging in penile/vaginal intercourse with the naked complainant.
Objective seriousness Counts 9 and 10
Generally speaking, penile/vaginal intercourse is regarded as the most serious type of sexual penetration. As to Count 10, the above observations apply.
Counts 11 and 12—28 April 2018
On 28 April 2018, the offender recorded a video of the complainant on her hands and knees performing fellatio on him
Objective seriousness Counts 11 and 12
As to Count 11, the observations relating to Counts 5 and 7 apply. As to Count 12, the observations relating to Counts 6, 8 and 10 apply.
Counts 13 and 14—29 August 2018
On 29 August 2018, the offender recorded a video of himself sucking one of the complainant’s nipples as they lay in a bed.
Objective seriousness Counts 13 and 14
The nature of the conduct makes the Count 13 offence objectively more serious than Count 2 but, otherwise, the observations relating to Count 2 apply and the above observations about the production of child exploitation material apply to Count 14.
Counts 15 and 16—11 October 2018
On 11 October 2018, the offender recorded a video of the complainant performing fellatio on him.
Objective seriousness Counts 15 and 16
The observations relating to Counts 11 and 12 apply.
Counts 17 and 18—29 October 2018
On 29 October 2018, the offender recorded a video of the complainant performing fellatio on him while wearing her high school uniform.
Objective seriousness Counts 17 and 18
The observations relating to Counts 11 and 12, 15 and 16 apply.
Counts 19 and 20—6 November 2018
On 6 November 2018, the offender recorded six ‘live’ images of the complainant, i.e. each image shows what occurred just before and after the image was taken. The complainant was wearing her high school uniform. Her dress was pulled up above her waist, exposing her underpants. The ‘live’ images focus on the complainant’s underpants, which she pulls to the side, exposing her genitals. The offender is heard to moan before he reaches out and touches the complainant’s genitals with his hand.
Objective seriousness Counts 19 and 20
Count 19 is the most serious of the three charges of act of indecency as it involved touching the complainant’s genital area.
Count 21 and 22—7 December 2018
On 7 December 2018 the offender recorded a video of himself inserting his penis into the complainant’s vagina.
Objective seriousness Counts 21 and 22
The observations in relation to Counts 9 and 10 apply.
Detection of the offences
Mega.nz is a publicly available website that provides end-to-end encrypted cloud storage. Users can upload material and then share and access it via a unique link.
On 5 November 2019, the Australian Centre to Counter Child Exploitation (ACCCE), and similar authorities in other countries, received a referral from the New Zealand Department of Internal Affairs (NZDIA) concerning a Mega.nz account that was linked to a Hotmail email address in the offender’s name. The account was created on 1 February 2016. The account stored files that met the definition of child abuse material within s 473.1 of the Criminal Code. Subsequently, the ACCCE received further information from Italian authorities concerning use of the offender’s Hotmail account to access and store child abuse material.
At about 9:44AM on 22 March 2021, police attended the offender’s work premises to execute a search warrant. The offender accompanied police officers to his home.
During a search of the offender’s home, officers found a silver Apple Macbook Air laptop. Two Apple iPhones were found on his person.
The offender complied with directions to provide police with the credentials for his devices and online accounts.
Count 23—22 March 2021
An iPhone 12 Pro Max contained video files that were within the application “Photo Vault”, which allows the user to upload photo and video files and securely lock access by setting a pin code or password. There were 383 files that met the definition of child abuse material under section 473.1 of the Criminal Code. In each case, the video depicted an actual child; in all, no fewer than 100 different children. The children ranged in age from approximately 18 months to 15 years, and were predominantly between 18 months and 12 years old. The children were both boys and girls, although the majority were girls. The material included videos of children in sexualised poses (some showing breasts, vaginas, penises and/or anuses), children being subjected to acts of indecency, and children being penetrated by adults (vaginally, orally and/or anally). The perpetrators included both male and female adults. In relation to bondage and incest, there was one series that showed these very serious forms of abuse. There was one file each of bestiality and humiliation of children.
Objective seriousness Count 23
The following matters are relevant to the objective seriousness of this offence:
(a)The quantity of 383 files; a substantial quantity but significantly less than is often the case with such offenders.
(b)The material involved the abuse of at least 100 actual children, who were predominantly aged between 18 months and 12 years.
(c)Some of the material depicted more serious conduct, involving penetration.
(d)The purpose of possession was personal use. There is no evidence that material was shown to the complainant, shared with anyone else or to be used for profit.
Count 24—22 March 2021
An examination of the Apple Macbook Air laptop revealed that child exploitation images and videos were stored on the device. They depicted the complainant in the sexualised poses and acts that are the subject of Counts 2–22.
When police interviewed the offender on 22 March 2021, he acknowledged that he owned and only he had password access to the Apple Macbook Air and iPhone that had been seized.
Objective seriousness and comparable cases Count 24
The material comprised 10 files, all relating to the same victim, being a 15-year-old child. Frequently, such offences involve the possession of many more files, numerous victims and much younger victims. The material was possessed for personal use. However, the material that was in the offender’s possession included content that was serious (within the range of material constituting child exploitation material). Although the offender is charged with possession on one day, the offence occurred in the context that most of the material had been possessed for a considerable period of time and the possession only terminated because of police intervention.
I was referred to the cases of R v Ferguson [2015] ACTSC 363 and R v Degioannis [2019] ACTSC 47.
Count 25—22 March 2021
At the offender’s residence, police located a Ruger .22 calibre bolt action rifle and a Weatherby .308 calibre bolt action rifle in a “Pelican” branded case on the floor in the front of the wardrobe in the offender’s bedroom. This type of case may be used to transport firearms, but it is not an approved means of storing firearms in residential premises.
Magazines and ammunition for use in the two firearms were found in a second “Pelican” branded case in the bedroom.
There was a firearm safe in the wardrobe.
The offender held an ACT firearms licence. Two firearms were registered on his licence. The offender’s licence was suspended, and his rifles and ammunition seized.
Later, the offender told police that he had stored the items in the “Pelican” case intending to go to a rifle range later on that day because he had not wanted to store the firearms in his vehicle while he was at work.
Objective seriousness Count 25
The offence is of low objective seriousness. There is no evidence to contradict the offender’s assertion to the effect that the firearm was stored unsafely for only a short period.
Under s 14(4) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the court may make a fine order for the offender whether or not the offence is expressly punishable by a fine: R v Mazaydeh [2014] ACTSC 325 at [2]. Having regard to the low objective seriousness of this matter, I will impose a fine.
Subjective features
The offender was born in Wollongong.
In 2002, he was sentenced at the Wollongong District Court for offences of aggravated indecent assault on a person under the age of 16 years (between December 2000 and January 2001) and having sexual intercourse with a person aged between 10 and 16 years (between January 2000 and January 2001). The pre-sentence report states that the victim had been visiting the offender’s neighbour. For each offence, he was sentenced to 18 months’ imprisonment, suspended on him entering a good behaviour bond that contained a condition requiring him to accept the supervision of the NSW Probation and Parole Service. As a result of the convictions, he was registered on the NSW Child Protection Register for a period of 15 years, expiring in March 2017.
The offender is the third of five children. He enjoyed a reasonable upbringing although, as his parents performed shift work, they had limited time for their children. The offender maintains frequent contact with his mother and sister. The offender’s family remain supportive.
The offender has had three significant relationships, resulting in four children who are now aged between nine and 20 years. The offender maintains close contact with his 20-year-old child, the product of his first relationship. With a second partner, the offender had two children, who are now 14 and 10 years of age. At the conclusion of the relationship, the offender lost access to the children because of his sexual offending. His third relationship commenced when he was 30 years old. The pair married but the marriage ended after six months. The offender has irregular contact with the child of this marriage.
The offender told the author of the pre-sentence report that each of his past relationships had been an “absolute disaster” because of the limited communication within the relationships. The pre-sentence report suggests that the offender is ambivalent about forming intimate relationships with adult women.
The offender completed Year 10. Since then, he has been employed, primarily in retail positions. In 2017, he obtained a casual position at Kmart in Western Sydney. After three months, he was offered the position of duty manager at Kmart Belconnen. Recently, the offender has worked at other retail stores. Despite debts of $22,000, he described his finances as manageable.
The offender has difficulty communicating his emotions. He described symptoms of anxiety and depression. He takes prescribed anti-depressant medication. Recently, he visited a psychologist, who advised the offender to attend two counselling sessions. However, the offender failed to attend a recent scheduled appointment.
The offender has few leisure activities and few friends. The author of the pre-sentence report noted that the offender’s life has been focused on work, observing:
this may have been a helpful distraction for the offender if he struggled with intimacy and communication issues.
The offender told the author of the pre-sentence report that, when he was not in a relationship, he would watch pornography. He stated that, until 2018, he had viewed adult heterosexual pornography. He claimed that, since commencing anti-depressant medication, his sexual urges had waned, and he had not viewed pornography.
The author of the pre-sentence report stated that the offender had articulated an understanding of why his actions were wrong. He understood the age of consent and how the criminal justice system operates to protect young people. However, he also referred to his relationship with the complainant as a consensual relationship and claimed that he was in love with her. He said that his behaviour was motivated by feelings of isolation and loneliness.
The offender was assessed as being at above average risk of sexual reoffending. It would be helpful for him to be assessed by a specialist forensic psychologist to appreciate the factors that have informed his repeated sexual offending. Further, it is likely that he would benefit from a sex offender treatment program.
Other sentencing considerations
In relation to the ACT offences, the Court must have regard to the sentencing purposes in s 7 of the Sentencing Act and the matters set out in s 33 of the Sentencing Act, in so far as they are known and relevant.
In relation to the overall offending, it is clear that the only appropriate sentence is a significant sentence of full-time imprisonment.
In sentencing for the Commonwealth offences, the Court’s primary task is to achieve a sentence that is appropriate in all the circumstances: s 16A(1) of the Crimes Act 1914 (Cth) (Crimes Act 1914). The Court must have regard to the considerations in s 16A(2) of the Crimes Act 1914.
In relation to all offences, the sentencing purpose of general deterrence is very important. In R v Miller [2019] ACTCA 25 at [44], the Court of Appeal observed that general deterrence is always an important consideration in relation to sexual offending; that is more so in the case of sexual offending against children. In relation to the offence of possessing child abuse material (Count 23), it can be inferred that one purpose for introducing a mandatory minimum sentence was to ensure that sentences reflected the purposes of general deterrence, protection of the community from child sex offenders, and recognition of harm to the victims.
In relation to Count 23, the offender conceded that s 16AAB of the Crimes Act 1914 is applicable as he is to be convicted of a Commonwealth child sexual abuse offence and he has previously been convicted of a child sexual abuse offence. Section 16AAB(2) provides that, subject to s 16AAC, for a person convicted of an offence against s 474.22A of the Criminal Code, the sentencing court must impose a sentence of at least four years’ imprisonment. Section 16AAC(2)–(3)(a) provides that, if appropriate, a lesser sentence of up to 25 per cent may be imposed because of a plea of guilty.
In relation to Count 23, the Court must also take into account the matters set out in s 474.29AA of the Criminal Code, to the extent they are known and relevant. I have referred to the relevant matters above.
I note the terms of s 19(5) of the Crimes Act 1914. While there will be some degree of concurrency between the federal and ACT offences that I will impose, I am satisfied that all sentences and the overall sentence are of a severity appropriate in all the circumstances.
Section 19AB(1) of the Crimes Act 1914 provides that, where a federal sentence or sentences exceeds three years, the sentencing court must fix a single nonparole period for those sentences. Section 19AB(3)(b) provides that a court may decline to fix a nonparole period if the offender is expected to be serving a Territory sentence on the day after the end of the federal sentence. Applying this provision, I decline to fix a nonparole period for the federal offences because it would be futile to do so.
In declining to fix a non-parole period for the federal offences, I have not disregarded s 16A(2AA) of the Crimes Act 1914, which requires that, where a person is convicted of a Commonwealth child sex offence, the sentencing court must have regard to the objective of rehabilitation. This provision was considered by Burns J in R v Hartley-Kennett [2021] ACTSC 88 at [32]. The total sentence that I impose has significant regard to rehabilitation and permits ample time for the offender to undertake a sex offender program, either during the period that he is in full-time imprisonment or upon his release to parole.
Although the offender’s prospects for rehabilitation are unclear, the total sentence is lengthy and it is the first sentence of full-time imprisonment that has been imposed upon the offender. Consequently, the offender should have a relatively early opportunity to demonstrate to the parole authority that he is fit for release to the community; the nonparole period will be 50 per cent of the total sentence
It was submitted that the 2002 offences were of only modest significance because they occurred more than 20 years before the current offences and were different in nature. I do not consider that they were fundamentally different in nature.
As to the passage of time, it must be remembered that the offender was a registered child sex offender for almost all the period between 2002 and 2018, when the current offences commenced. Against this background, the sentences that I impose must strongly reflect the sentencing purpose of personal deterrence.
It was submitted that I should allow a sentencing discount for cooperation with law enforcement authorities by providing necessary passwords and making admissions to the police.
The admissions were not extensive and do not justify a discount. The offender was legally required to provide the passwords. Such compliance with the law does not entitle a person to a discount. The position is analogous to that in Will v The Queen (No 2) [2021] ACTCA 14, where the majority held that the offender had not provided relevant assistance to authorities by giving evidence under subpoena in a related trial.
As the nature and number of sexual interactions between the offender and the complainant is an important consideration in sentencing the offender for the offence of engaging in a sexual relationship with the complainant and the only evidence of those interactions is the subject of separate charges, it is appropriate that the sentences for the separate charges be very largely concurrent with the sentence for engaging in a sexual relationship. This is not to ignore the fact that the evil associated with engaging in a sexual relationship extends beyond that associated with individual sexual violations.
Sentence
I convict the offender of each offence and impose the sentences set out in Annexure A.
The total sentence is nine years and six months’ imprisonment, from 13 August 2021 to 12 February 2031.
I decline to fix a federal nonparole period.
On Counts 1, 5, 6, 7, 8, 9, 21 and 22, I impose a nonparole period that starts on 13 November 2023 and ends on 12 May 2026. This is 50 per cent of the total sentence imposed for both federal and ACT offences, i.e. an effective non-parole period of four years and nine months’ imprisonment.
| I certify that the preceding one hundred and one [101] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell Associate: Date: |
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Amendments
26 August 2021 Paragraph 101 is amended to read “On Counts 1, 5, 6, 7, 8, 9, 21 and 22, I impose a nonparole period that starts on 13 November 2023 and ends on 12 May 2026. This is 50 per cent of the total sentence imposed for both federal and ACT offences, i.e. an effective non-parole period of four years and nine months’ imprisonment.”
ANNEXURE A
| Count | Date of Offence | Offence | Sentence |
| 1 | 6 November 2017 to 3 January 2019 | Engage in sexual relationship with child, contrary to s 56(1) of the Crimes Act | 7 years imprisonment less 25% - 5 years and 3 months’ imprisonment, from 13 November 2025 to 12 February 2031 |
| 2 | 21 January 2018 | Commit act of indecency on a person under the age of 16 years, contrary to s 61(2) of the Crimes Act | 1 month’s imprisonment, from 13 November 2023 to 12 December 2023 |
| 3 | 22 January 2018 | Use carriage service to transmit an indecent communication (male masturbating) to person under 16 years of age, contrary to s 474.27A(1) of the Criminal Code | 1 month’s imprisonment, from 13 November 2023 to 12 December 2023 |
| 4 | 27 January 2018 | Use carriage service to transmit an indecent communication to person under 16 years of age, contrary to s 474.27A(1) of the Criminal Code | 16 months’ imprisonment less 25% – 12 months’ imprisonment, from 13 November 2023 to 12 November 2024 |
| 5 | 1 March 2018 | Sexual intercourse (digital penetration) with young person under the age of 16 years and over the age of 10 years, contrary to s 55(2) of the Crimes Act | 2 years imprisonment less 25% - 18 months’ imprisonment, from 13 November 2025 to 12 May 2027 |
| 6 | 1 March 2018 | Use a child 12 years or older to produce child exploitation material, contrary to s 64(3) of the Crimes Act | 18 months’ imprisonment less 25% - 13 months’ imprisonment, from 13 November 2025 to 12 December 2026 |
| 7 | 28 March 2018 | Sexual intercourse (penetration with aerosol can) with young person under the age of 16 years and over the age of 10 years, contrary to s 55(2) of the Crimes Act | 2 years 6 months’ imprisonment less 25% - 22 months’ imprisonment, from 13 February 2026 to 12 December 2027 |
| 8 | 28 March 2018 | Use a child 12 years or older to produce child exploitation material, contrary to s 64(3) of the Crimes Act | 2 years’ imprisonment less 25% - 18 months’ imprisonment, from 13 February 2026 to 12 August 2027 |
| 9 | 17 April 2018 | Sexual intercourse (penile/vaginal intercourse) with young person under the age of 16 years and over the age of 10 years, contrary to s 55(2) of the Crimes Act | 3 years 6 months’ imprisonment less 25% - 2 years 8 months imprisonment, from 13 November 2024 to 12 July 2027 |
| 10 | 17 April 2018 | Use a child 12 years or older to produce child exploitation material, contrary to s 64(3) of the Crimes Act | 2 years’ imprisonment less 25% - 18 months ‘imprisonment, from 13 November 2024 to 12 May 2026 |
| 11 | 28 April 2018 | Sexual intercourse (fellatio) with young person under the age of 16 years and over the age of 10 years, contrary to s 55(2) of the Crimes Act | 2 years 6 months’ imprisonment less 25% - 22 months’ imprisonment, from 13 July 2024 to 12 May 2026 |
| 12 | 28 April 2018 | Use a child 12 years or older to produce child exploitation material, contrary to s 64(3) of the Crimes Act | 2 years’ imprisonment less 25% - 18 months’ imprisonment, from 13 July 2024 to 12 January 2026 |
| 13 | 29 August 2018 | Commit act of indecency on a person under the age of 16 years, contrary to s 61(2) of the Crimes Act | 12 months’ imprisonment less 25% - 9 months’ imprisonment. From 13 August 2025 to 12 May 2026 |
| 14 | 29 August 2018 | Use a child 12 years or older to produce child exploitation material, contrary to s 64(3) of the Crimes Act | 12 months’ imprisonment less 25% - 9 months’ imprisonment, from 13 August 2025 to 12 May 2026 |
| 15 | 11 October 2018 | Sexual intercourse (fellatio) with young person under the age of 16 years and over the age of 10 years, contrary to s 55(2) of the Crimes Act | 2 years 6 months’ imprisonment less 25% - 22 months’ imprisonment, from 13 July 2024 to 12 May 2026 |
| 16 | 11 October 2018 | Use a child 12 years or older to produce child exploitation material, contrary to s 64(3) of the Crimes Act | 2 years’ imprisonment less 25% - 18 months’ imprisonment, from 13 July 2024 to 12 January 2026 |
| 17 | 29 October 2018 | Sexual intercourse (fellatio) with young person under the age of 16 years and over the age of 10 years, contrary to s 55(2) of the Crimes Act | 2 years 6 months’ imprisonment less 25% - 22 months’ imprisonment, from 13 July 2024 to 12 May 2026 |
| 18 | 29 October 2018 | Use a child 12 years or older to produce child exploitation material, contrary to s 64(3) of the Crimes Act | 2 years’ imprisonment less 25’% - 18 months’ imprisonment, from 13 July 2024 to 12 January 2026 |
| 19 | 6 November 2018 | Commit act of indecency on a person under the age of 16 years, contrary to s 61(2) of the Crimes Act | 18 months’ imprisonment less 25% – 13 months’ imprisonment, from 13 April 2025 to 12 May 2026 |
| 20 | 6 November 2018 | Use a child 12 years or older to produce child exploitation material, contrary to s 64(3) of the Crimes Act | 12 months’ imprisonment less 25% - 9 months’ imprisonment, from 13 April 2025 to 12 January 2026 |
| 21 | 7 December 2018 | Sexual intercourse (penile/ vaginal intercourse) with young person under the age of 16 years and over the age of 10 years, contrary to s 55(2) of the Crimes Act | 3 years 6 months’ imprisonment less 25% - 2 years 8 months’ imprisonment, from 13 May 2025 to 12 January 2028 |
| 22 | 7 December 2018 | Use a child 12 years or older to produce child exploitation material, contrary to s 64(3) of the Crimes Act | 2 years’ imprisonment less 25% - 18 months‘ imprisonment, from 13 May 2025 to 12 November 2026 |
| 23 | 22 March 2021 | Possess child abuse material obtained by using a carriage service, contrary to s 474.22A(1) of the Criminal Code | 5 years 6 months’ imprisonment less 25% – 4 years 1 month’s imprisonment, from 13 August 2021 to 12 September 2025 |
| 24 | 22 March 2021 | Possess child exploitation material, contrary to s 65(1) of the Crimes Act | 18 months imprisonment less 25% – 13 months’ imprisonment, from 13 May 2024 to 12 June 2025 |
| 25 | 22 March 2021 | Failure to store firearms in an approved locked receptable, contrary to s 181(1)(a) of the Firearms Act | Fine of $400 to be paid by 4PM 26 August 2021. |
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