R v Wilkinson

[2020] NSWDC 914

District Court

New South Wales

Medium Neutral Citation:

R v Wilkinson [2020] NSWDC 914

Hearing dates:

18 November 2020; 26 November 2020

Date of orders:

26 November 2020

Decision date:

26 November 2020

Jurisdiction:

Criminal

Before:

Wilson SC DCJ

Decision:

Full time custodial sentence imposed. Orders at [78] – [81]

Catchwords:

CRIME – sentence – procure child for production and dissemination of child abuse material – breach of bond – breach call up – similar offences – offender on Child Protection Register – failure to comply with reporting obligations

Legislation Cited:

Child Protection (Offender’s Registration) Act 2000 s 17

Crimes Act 1900 (NSW) ss 66EB, 91H

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A

Cases Cited:

None

Texts Cited:

None

Category:

Sentence

Parties:

Regina (ODPP)
Matthew Wilkinson (Offender)

Representation:

Counsel:
Ms Nicholson (ODPP)
Mr Lewis (Offender)

Solicitors:
ODPP Solicitor (ODPP)
Solicitor for the Offender (Offender)

File Number(s):

2019/267441

Publication restriction:

Statutory prohibition on publication in relation to identities of the complainant under s578A of the Crimes Act 1900 (NSW) and s15A of the Children (Criminal Proceedings) Act 1987 (NSW)

Judgment

1. The offender appears today for sentence in relation to a number of matters. He was born on 12 May 1995 and is currently 25 years of age. He is to be sentenced for a breach call up in relation to a charge of possess child abuse material, in breach of s 91H(2) of the Crimes Act 1900 (NSW). He is also to be sentenced for a charge under s 66EB(2), being procure a child under 14 years for unlawful sexual activity, that being the production and dissemination of child abuse material, which carries a maximum sentence of 12 years’ imprisonment with a standard non parole period of 6 years.

2. Attaching to that charge on a Form 1 is a charge of possess child abuse material, in breach of s 91H(2) of the Crimes Act, which carries a maximum sentence of 10 years’ imprisonment.

3. The other matter for sentence is failing to comply with reporting obligations in breach of s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW), which carries a maximum sentence of 5 years’ imprisonment and/or a fine of $55,000.

4. The offending occurred between 1 August 2019 and 27 August 2019. The offender was arrested 28 August 2019 and bail was refused. He has been in custody since that date. On 19 June 2020 he was committed for sentence from the Gosford Local Court.

5. At the time of the offending the offender was the subject of a 3 year Community Corrections Order, which commenced 5 February 2019. The fact that he was on conditional liberty is an aggravating factor, pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW).

6. I observe that the maximum sentences for each of the charges to which I have referred are guideposts for sentencing, representing the parliament’s assessment of the seriousness of the offending.

7. The facts relating to the offending are set out behind tab 4 in Exhibit A. As a consequence of two earlier convictions, the offender was required and remains required by the Child Protection (Offenders Registration) Act to be registered on the Child Protection Register for the remainder of his life. As a registered offender, the offender is obliged to report to police the details of any email addresses, internet user names, instant messaging user names, chatroom user names and any other user names or identity used or intended to be used by him through the internet or other electronic communication services. He is also obliged to report any changes in those details to police within 7 days.

8. On 2 July 2019 the offender reported his personal information to police at Gosford in accordance with those obligations. On that day the offender provided information including details of his employer and internet service provider. The offender did not provide any information in relation to chatroom services, instant messaging services or social networking sites as required. After providing police with his information the offender signed a form acknowledging that the information provided by him on 2 July 2019 was correct, and his understanding that he was required to report any change in his relevant information to the police.

9. The following facts relate to sequence 6, being the primary charge of procuring a child aged 14 for unlawful sexual activity in breach of s 66EB(2) of the Crimes Act. The complainant, whose name appears in para 6 of the Agreed Facts, but will remain anonymous, was born 29 January 2005. He is now 15 years of age, soon to be 16. The complainant’s biological parents, also referred to in the Agreed Facts, were separated. At the relevant time the complainant lived primarily with his mother and occasionally with his father.

10. During 2018 and 2019 the complainant regularly attended the ice skating rink at Erina Ice Arena on Friday nights to play ice hockey and skate. The complainant’s father would attend the ice skating rink with him on these occasions, however he would not remain with the complainant for the entirety of the evening. Around this time the offender also regularly attended the same ice skating rink on Friday nights. Around 2018 the complainant was introduced to the offender by a friend. Immediately after their introduction the complainant told the offender his age. Thereafter the complainant would regularly see the offender skating on a Friday night. He knew the offender as “Matt” and described him as “slightly taller than himself without much hair and aged in his early 20’s”.

11. Occasionally on Friday nights at the skating rink the offender would skate over to the complainant and the two would speak while skating laps. Their conversations initially concerned things such as ice hockey, in which they had a mutual interest. Around June 2019 the conversations between the offender and the complainant started to become more sexualised. The offender began to tell the complainant that he was hot and would speak about how he wanted to give him hand jobs and blow jobs. These conversations would make the complainant uncomfortable, and he would often tell the offender to stop or skate away to avoid him.

12. The offender obtained the complainant’s mobile phone number and the two began to communicate by text messages in addition to their face to face conversations at the skating rink. The complainant saved the offender’s telephone number ending 228 in his phone under the contact name “Matt the faggot”. On 1 August 2019 the offender and the complainant exchanged a number of text messages, during which the offender divulged that he had been in prison for three months the previous Christmas because “I had sex with a 15 year old and his parents found out”. The offender also divulged that he was banned from the internet for sexting on Snapchat. The offender asked the complainant to keep these revelations a secret and said “Don’t think I’ll try anything with you, I only would if you started but IK”, which I take to mean I know you won't.

13. On 9 August 2019 the offender and the complainant were exchanging text messages about the possibility of the offender purchasing some shoes for the complainant. The sequence of text messages appear in para 13 of the Agreed Facts and extends over three pages. I do not intend to read them all, save to observe a sample relevant to the offending.

14. The messaging began with the offender telling the complainant that he wanted a hug. The complainant said “I don’t usually hug guys” and to which the offender replied “I won't even think of asking for worse than that then”. There was then reference to 1K, which I take to mean $1,000, and the conversation continued with the complainant stating “Just wondering what do I have to do for 1K”. The offender replied saying “You're too young” and he would not be doing it until he was 16. There was then discussion of a sum on money of $750 to which the offender indicated “I’d ask to either see you nude or a couple of nude pics, whichever I wouldn’t mind”. It then continued with the offender indicating that for 1K “was to like .. HJ or BJ”, which I infer from the earlier conversation is intended to mean hand job or blow job.

15. The conversation continued with the offender stating “I shouldn’t even be offering it, you're too young” and then further stating “Just so you know it would be me doing the HJ or BJ to you, not the other way”. The offender then stated “Yeah but it be illegal”. Later the offender stated to the complainant “I would happily give to you but doubt you want me to blow you even for money”. I infer that this is intended to be a reference to oral sex. Some of the messages are difficult to interpret, so I am being selective as to those to which I refer and only those which bear upon the criminality of the offending.

16. There was then discussion about photographs being sent by the complainant to the offender, with the offender saying “How many would you send for $750?”. He further stated “The most I normally spend is $50 per pic and 100 for vids of cumming and shit”. There was then talk of $750, and the offender said “Normally it be like 15 pics or some combo of pic and vid but IDK what you're willing to do”. I infer that ‘IDK’ means ‘I don’t know’.

17. There was then talk about Snapchat, and the offender provided the complainant with a Snapchat address. The offender reassured the complainant that he would pay the money saying “I swear on my life will give it to you. I paid a guy 3K over the course of a few months to have sex with him so I do keep my word”. He then said “and since we’re on the topic anyway if you ever really want a BJ or anything I would be willing, not that you would but yeah I’m keen”.

18. The complainant added the offender to Snapchat and the offender further stated “I want everything though, like not just cock, some body too but mostly dick”. This exchange ends with the offender stating “After this I would be happy to pay 50 each for more if you need cash but it doesn’t apply to things I buy you like drinks and food”.

19. That is the summary of the text messaging that appears in para 13 of the Agreed Facts. The facts continue. In addition to these messages the offender also requested pictures of the complainant’s penis a number of times during their face to face conversations.

20. On a day around July 2019 the complainant and his father were travelling together in a car when they had a conversation about the offender. The complainant’s father was familiar with the offender as he had seen him regularly at the ice arena on Friday nights, however up to that point did not know the offender’s name and that the two had had significant conversations.

21. The complainant told his father the offender was going to give him $1,000 cash as a birthday gift, the complainant’s father expressed concern about why the offender would provide the complainant with such a significant sum of cash, and asked the complainant some further questions about the offender’s motives. The complainant said that the offender’s father was a business owner and explained that the offender had shown him a bank account and that it had a balance of $48,000.

22. In early August 2019 the complainant sent to the offender nine photographs and one video depicting his body and penis. These files were sent through the Snapchat application.

23. On 12 August 2019 the offender and the complainant arranged to meet at the Bateau Bay Shopping Centre the following day so that the offender could give the complainant money. On 13 August 2019 the complainant attended the shopping centre in the company of his friend whose name appears in para 19 of the Agreed Facts.

24. The complainant told his friend that he needed to meet with a “rich gay friend” who would be giving him some money. The complainant did not tell his friend why the money was being given to him. The complainant and the accused met outside the electronics boutique store at Bateau Bay. The offender handed the complainant $500 in 20 and $50 notes. The friend was inside the boutique store at the time of the exchange, and later described seeing a man who was wearing a hat and a hoodie handing money to the complainant.

25. Later on 13 August 2019 the complainant met with his mother at her work, where the two had a conversation about a family holiday that had recently been cancelled. The complainant offered to give his mother some money, and showed her his wallet, which appeared to be full of cash. The complainant told his mother that he had obtained the cash from an adult male he knew through ice hockey. The complainant’s mother expressed concern about the adult male’s motives for providing the complainant with the money. The complainant said “it’s all right mum I have known him for ages and it’s just that the rink is closing down and it’s an early birthday present”. Soon afterwards the complainant told his mother that the adult male from the ice hockey would be giving him another $500 the following Sunday at the ice skating rink.

26. From 15 to 17 August 2019 the complainant travelled to the Blue Mountains with his father, his stepmother and a friend who was visiting from overseas. At one point during the trip the complainant’s father observed him brandishing a wad of $50 notes. His father formed the impression that he was “flashing the cash around while acting all cool”. The complainant’s father was conscious that the complainant had no apparent means of obtaining significant sums of money, given that was he not employed and did not receive pocket money. He asked the complainant where he obtained the money from and the complainant said “That’s the money from Matt”.

27. On 18 August 2019 the complainant and his father were both at the ice arena which was due to shut down permanently at the end of that day, the offender was also present. At one point during the afternoon the complainant’s father approached the offender on the ice skating rink and asked him about the money that he had given the complainant. The offender said “The rink is closing and I don’t know when I will see him again so it’s an earlier Christmas and birthday present, he is one of my mates and I’m happy to give him the money”. The complainant’s father asked the offender some questions about the source of the money and concluded the conversation by thanking the offender for the gift and asking him not to provide the complainant with any more money. The offender acknowledged that request.

28. At another point on the same afternoon the offender approached the complainant who was skating in a group of people, pulled $500 in $50 notes from his pocket and gave it to the complainant, the offender told the complainant not to tell anyone. The complainant understood that this money was given to him for the pictures that he had already sent. The complainant’s father was not aware that the second amount of money had been provided to the complainant. On 24 August 2019 the accused and the complainant had the text message exchange which is set out at para 28 of the Agreed Facts, in which there was further discussion between them about the exchange of money for photographs.

29. On 27 August 2019 the complainant gave his mobile phone to his mother so that she could take it to a store in Sydney to be repaired. He provided his mother with the PIN code to unlock the phone. During the morning the mother of the complainant unlocked the phone and began reviewing the text message conversations, where she found a number of text messages of a sexually explicit nature from a contact saved as “Matt the faggot”. The complainant’s mother contacted his father to discuss the content of the messages, and then attended Gosford Police Station on the morning of 27 August 2019 to make a report about the message. She later provided the complainant’s phone to police.

30. Police identified the offender as the person of interest after perusing the text messages on the complainant’s phone. On 28 August 2019 Senior Constable Seib was granted a search warrant for the offender’s residential address in Kincumber. Later that evening police attended the address for the purpose of executing the search warrant. The offender arrived home about 6.10pm, at which point the police officers immediately approached him and informed him that he was under arrest for a child grooming offence. He was also told that he would be asked some questions, and was cautioned that he did not need to provide the answers. The offender indicated that he understood this caution.

31. In response to police questioning the offender then said:

1. that he knew the complainant;

2. that he and the complainant were just friends who met at ice skating; and

3. that he plays ice hockey at Erina.

32. Later in response to further police questions the offender:

1. said that he had known the complainant for six months;

2. agreed that he had been sending the complainant text messages; and

3. said that he was not sure how old the complainant was.

33. Police then seized the mobile phone. The offender confirmed that the phone belonged to him and that it was registered to him, and gave his mobile phone number ending 228.

34. Police then undertook a search of the residential premises of the offender, during which they located an Apple iPad under a mattress in a room identified as the offender’s bedroom. The offender provided police with the PIN code to open a number of the applications installed on the iPad. He agreed that the collection of photographs stored in the Photo Vault application installed on the iPad belonged to him. He further agreed that he was the sole occupant of the Keepsafe and Photo Vault applications installed on the iPad. Police later downloaded all the text messages exchanged between the complainant and the offender from the complainant’s phone.

35. The following facts relate to sequence 1, being fail to comply with reporting obligations. During the execution of the search warrant at the offender’s residence the offender told police that he had a Snapchat account and provided police with his account name. The offender agreed that he had not disclosed the account on his Child Protection Register Acknowledgment Form, and agreed that he was required to do so.

36. A subsequent examination of the iPad seized from under the offender’s mattress revealed that the device was logged into an Apple ID with the name of Matt Wilkinson and the Facebook and Facebook Chat applications were installed on the device. The Facebook Chat application was logged into a Facebook account with the name Matt Wilkinson, and had recently been used to engage in conversations.

37. The following facts relate to sequence 5 on the Form 1. Police also located ten child abuse files in the camera role of the iPad seized from under the offender’s mattress. The files were catalogued by police and described in the manner referred to in paragraphs 41(a) through to (i) of the Agreed Facts.

38. All of the photographs were of the complainant. To avoid embarrassing the complainant, who I note is present in court with his mother and grandmother, I do not intend to read out as part of the sentence the description of the photographs, save to observe that they were explicit and sexual in nature.

39. The offender comes to the Court with a history of sexual offending. In the period 2 March 2014 through 16 March 2014 he committed four offences, for which he was convicted on 3 October 2014 in the Gosford Local Court.

40. The first charge was having sexual intercourse with a person above the age of 14 and below the age of 16, for which he received a community service order being 150 hours cumulative.

41. The second was commit an act of indecency with a person under the age of 16, two counts for which he received a s 9 bond.

42. The third was having sexual intercourse with a person above the age of 14, under the age of 16, for which he received a two year s 9 bond.

43. The fourth charge was having sexual intercourse with a person above 14, under 16 for which he received a community service order of 150 hours.

33. The offender next came before the Court on 14 November 2018 in the Downing Centre Local Court, where he was charged with two offences both of which appear for sentencing in relation to separate offending today. The first is fail to comply with reporting obligations, for which the Local Court magistrate imposed an aggregate sentence together with the other charge. The second charge was possess child abuse material. The aggregate sentence was for a period of 32 months, with a non-parole period of 24 months.

34. A severity appeal was lodged and came before the District Court in Sydney on 5 February 2019. In relation to the fail to comply with reporting obligations charge her Honour Syme DCJ varied the sentence imposed and instead imposed a sentence for a fixed term of three months commencing 14 November 2018 and expiring 13 February 2019. In relation to the possess child abuse material, her Honour varied the Local Court sentence, instead imposing a Community Corrections Order of three years, commencing 5 February 2019 and expiring 4 February 2022. A number of conditions were attaching to that Community Corrections Order.

35. That community corrections order was breached by the current offending, and is called up in the course of this sentence hearing. For that reason it is necessary to have regard to the facts relating to the offending pertaining to that charge. Those facts are set out in Exhibit A at tab 10.

36. The facts relating to the earlier offending resulting in the call up of the CCO breach by reason of this offending relate to events that occurred on 3 May 2018, when the police conducted a home visit at the offender’s premises in order to verify personal information and inspect the premises for any computer or digital devices. The offender led the detectives to his bedroom which contained a personal computer laptop, tablet, and Samsung mobile phone, inspections were made of these devices with detectives locating a number of child abuse images and videos on the accused’s mobile phone.

37. Detectives located approximately four images and four videos which were clearly child abuse material in the mobile phone’s gallery in the folder labelled “public”. Detectives performed a preliminary assessment of the child abuse material, ages of the children depicted ranged from approximately 4 to 16 years, the majority of the children were approximately between 10 and 12 years of age.

38. The child abuse material ranges from nudity through to oral sex and penetration. The child abuse material has yet to be classified, although there were clearly numerous files which would be classified as Interpol Baseline Category A. The Category A definition is ‘an image depicting a real prepubescent child, and the child is involved in a sex act, witnessing a sex act or the material is focussed or concentrated on the anal or genital region of the child’.

39. Before turning to the subjective case, which requires some careful consideration, I consider that the offending committed involving the present complainant is aggravated by his prior criminal record, particularly in relation to offences of the same type, being failure to comply with reporting obligations, and also possessing child abuse material. The offender is not a person of good character, and therefore is not entitled to any leniency which may otherwise flow from such a finding.

40. As for any mitigating factors pursuant to s 21A(3) of the CSP Act, I am unable to make a finding concerning the likelihood of reoffending. I am unable to make a finding as to prospects of rehabilitation. By reason of the failure of the offender to give evidence, I am unable to make a finding as to remorse. The only mitigating factor which arises is the guilty plea, which will be reflected in a discount upon sentence.

41. I now turn to consider the objective seriousness of the offending in relation to the charges for sentence. Dealing first with the charge ending 797, sequence 1, that is the child abuse material from 2018. This charge contained 4 images and 4 videos. Although in Category A, the number of images and/or videos is extremely low for offending of this type. Accordingly, I find the objective seriousness of offending in relation to that matter to fall at the low range.

42. In relation to sequence 6 of charge ending 049, being procure child of 14 years for unlawful sexual activity, namely production and dissemination of child abuse material, I find that the objective seriousness of that offending falls just below the mid-range. In that regard, I have taken into account the submissions made by the Crown in MFI 1, and in particular the submissions advanced at para 10 of that document where the Crown drew the Court’s attention to the following facts:

1. the offender proposed various sexual activities including fellatio, that he would masturbate the victim, and also the victim sending photographs and videos of himself naked or engaged in sexual activity. I pause here to observe that the photograph sent, whilst explicit, did not involve the complainant engaged with any other person in sexual activity. Nevertheless, the offender explicitly stated in the messages that he was aware that the victim was underage, and that his participation in this activity was illegal;

2. the offender did invite the victim to participate in sexual activity with him, as the Agreed Facts reveal;

3. the offender offered and paid money to the victim as an inducement for sexual activity;

4. the offender persisted in the course of conduct for a substantial period of time with the offender meeting the victim in 2018 and befriending him while at the ice skating rink. The communication appears to have commenced in about June 2019, progressing to the supply of sexual photographs in August 2019, so whilst they may have known each other since 2018 the gravamen of the offending commenced some little time later;

5. the offender persisted in the sexualised conduct in conversations, despite the victim initially asking him to stop or skating away when he had been approached by the offender in a sexualised manner. This does represent a sustained course of conduct, which is a matter relevant to determining the objective seriousness of the offending;

6. the victim was 14 years of age, being at the lower end of the range for offences under 66EB(2). The offender was also aware of the victim’s age, despite what he said to the police from the time of their initial meeting;

7. the age difference between the offender and the complainant was 10 years, a significant gap given the relative maturity, giving rise to a power imbalance between the two, often characteristic of an offender in the grooming process;

8. the offender provided a false explanation when confronted by the complainant’s father. The Crown accepted that, in that respect, there was not a high degree of sophistication to the offending; and

9. the offending is aggravated by the fact that the offender was the subject of conditional liberty at the time of the offending.

54. Having regard to the Crown’s submissions and the matters to which I have just referred, I maintain that the objective seriousness in relation to sequence 6 is just below the mid-range.

55. In relation to the charge on the Form 1, being sequence 5 “Possess Child Abuse Material”, that relates to the photographs referred to in para 41 (a) through (i) of the Agreed Facts. This count involves 9 separate photographs of the complainant.

56. Again, having regard to the breadth of the offending covered by this particular charge, I find that the offending in relation to the Form 1 matter falls at the low range of objective seriousness.

57. Next, in relation to Sequence 1, failing to comply with reporting obligations, I consider that offending falls at the mid-range of offending of that type, particularly having regard to the fact that it was only on 2 July 2019 that the offender made representations to the police in accordance with his obligations, and at that time failed to disclose the various applications referred to in para 38 to 40 of the Agreed Facts, which were discovered by the police upon inspection of the iPad on the 28 August 2019. Even assuming they were not present on that earlier occasion, the offender still had an obligation to report any change in his circumstances to the police.

58. His failure to do so, and the engagement of those applications is a breach of his obligation. The seriousness is measured in part by the number of applications downloaded, and it is apparent from the facts that the Snapchat application was used by the offender to communicate with the complainant from 9 August 2019 and thereafter.

59. The offender’s subjective case is complex in the sense that he has, through Community Corrections, been assessed as to his risk of re offending. In a Sentencing Assessment Report dated 11 November 2020 the author of the report adopted a pre-sentence consultation undertaken by Corrective Services as to the risk of re-offending.

60. Applying the static-99R instrument, it was found that the risk of re-offending was well above average. Nevertheless, on the application by Community Corrections of the LSI-revised, that is the level of service inventory-revised (LSI-R) which is the general community assessment of the risk of re-offending, the offender was assessed as being at low risk of re-offending. That determination by Community Corrections was overridden by the assessment conducted by Community Corrections.

61. In a report dated 16 November 2020 Professor Woods, psychologist, diagnosed the offender as suffering from a paedophilic disorder, together with a personality disorder with mixed features. The principal diagnosis, pursuant to DSM5 (being the Diagnostic Manual for Psychiatric Disorders) was a paedophilic disorder, a non-exclusive type, but with a preference for males in the pre and early post-pubescent stages of development.

62. The alternate diagnosis was hebephilic disorder, which was diagnosed and referenced by the Tanner stages 2 and early stage 3, which are explained in greater detail in his report, but with emotional congruence.

63. Unlike Community Corrections, and perhaps closer to Corrective Services, Professor Woods assessed the risk of re-offending as high. Professor Woods recommended a regime of treatment, including long-term intensive psychological treatment on a weekly basis. That is to be overseen by a senior clinician psychiatrist on a monthly basis.

64. Without that, Professor Woods considered the risk of re-offending to be high. In a supplementary report produced on the day of the sentence hearing Professor Woods expanded upon the question of the risk of re-offending and undertook an analysis of the detail contained in the Sentencing Assessment Report previously referred to. He took issue with the assessment of the risk of re-offending determined by Community Corrections. He stated when formulating and implementing an appropriate treatment intervention it is critically important that the following be noted:

1. the offender’s emotional congruence with children. Again he referred to the Tanner scale; and

2. the offender engages in sexual fantasies that, in essence, involve him being in the Tanner stage 2/early stage 3 when having sex with another person.

65. He continued:

“Mr Wilkinson is I believe at high level risk of re-offending in the absence of appropriate treatment with (a) independent monitoring by a relevantly qualified clinician, and (b) weekly contact with a Community Corrections case manager. Mr Wilkinson is not, in my opinion, a suitable candidate for inclusion in a group treatment program.”

66. The relevance of the last comments is that the only programs available in prison are group programs. Professor Woods gave evidence in the course of the sentence hearing and indicated that as a consequence of the circumstance of emotional congruence between the offender and children, he was concerned that the offender has sexual fantasies where he perceives or imagines himself to be also an adolescent, an early adolescent or a pre-adolescent.

67. Professor Woods was concerned that hearing stories in a group setting of other persons taking part in the program potentially would feed into the offender’s sexual fantasies, which would be counter-productive (T13.1–4).

68. He maintained, quite firmly, his opinion that the most suitable form of treatment for the offender was individualised treatment, so that he was not exposed to other like offenders.

69. Professor Woods was cross-examined by the Crown to the effect that not only would group therapy deprive him of any rehabilitative outcome, but it would also have a counter-productive effect, in that it would reinforce or emphasise his thoughts, and may also cause him to be vulnerable within a custodial setting.

70. I should note that the offender’s mother also gave evidence. Her evidence was straight-forward, and I am confident that she and her husband will provide their son with whatever support is necessary. Whilst in the past, perhaps, the offender was left to his own devices to seek out treatment, the evidence of Mrs Wilkinson is that on this occasion she would be extra vigilant to ensure that her son complied with the treatment regime recommended by the professionals.

71. The difficulty created by the evidence of Professors Woods is that in custody the offender cannot be successfully rehabilitated. That mandates, in my view, a finding of special circumstances so as to permit the offender to take advantage of the treatment recommendations of Professor Woods in the community. Accordingly, I find special circumstances.

72. Despite the submission of Mr Lewis for the offender as to his prospects of rehabilitation, I accept the opinion of Professor Woods that they could only be assessed as being guarded, as the rehabilitation has not yet commenced. The earlier attempted rehabilitation was aborted by reason of the offender’s lack of financial resources, although that is questionable in circumstances where he paid the complainant large sums of money which could otherwise be used for consulting with psychiatrists, psychologists and the like.

73. In considering the sentence to be imposed on the offender I find that, pursuant to s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), no sentence other than one of imprisonment is appropriate.

74. I intend to impose an aggregate sentence. In doing so I provide the following indicative terms, which have been determined after the application of a discount of 25%, representing the value of the guilty plea.

75. In relation to charge number ending 797, sequence 1, being the offending that took place back in May 2018 and was previously the subject of a Community Corrections Order, I provide an indicative term of 18 months.

76. In relation to sequence 6 of the current charge number ending 049, being the offence of procuring a child of 14 years for unlawful sexual activity, I provide an indicative term of 3 years, together with an indicative non-parole period of 18 months. In relation to the indicative term for sequence 6, I have also taken into account sequence 5 on the Form 1.

77. In relation to sequence 1, being failing to comply with reporting obligations, and given this is the second occasion upon which the offender has been detected as having done so, I provide an indicative term of 2 years.

78. Mr Wilkinson, you are convicted of 2 charges. The first is procuring a child of 14 years for unlawful sexual activity, in this case production and dissemination of child abuse material in breach of s 66EB(2) of the Crimes Act 1900(NSW).

79. You are further convicted of failing to comply with reporting obligations in breach of s 17(1) of the Child Protection (Offender’s Registration) Act 2000 (NSW).

80. In relation to those 2 convictions and the earlier conviction in relation to failing to comply with reporting obligations, for which you previously received a Community Corrections Order, I impose an aggregate sentence of 4 years, commencing upon the date of your incarceration, namely 28 August 2019. I impose a non-parole period of 2 years, having found special circumstances.

81. The head sentence will run from 28 August 2019 through to 27 August 2023. The non-parole period will expire on 27 August 2021, at which time you will be eligible for consideration for release on parole.

82. In the event that it has not already been done, I revoke the Community Corrections order.

[DISCUSSION WITH CROWN ABOUT REMARKS – RECORDED BUT NOT INCLUDED]

83. Mr Wilkinson, having listened very carefully to Professor Woods last week I am encouraged that you may have some prospects of rehabilitation. I firmly encourage you to follow whatever recommendations are made by those who are treating you, because you cannot keep going before the Court with these types of offences. You are young enough to change the course of your life.

84. OFFENDER: Yes your Honour.

**********

NOTE:

A. These remarks on sentence were revised without access to the Court File.

I certify that the previous 84 paragraphs are the reasons for the Remarks on Sentence of his Honour Judge D Wilson SC.

J Bailey

Associate

Decision last updated: 18 June 2021