R v Zonneveld
[2019] ACTSC 122
•9 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Zonneveld |
Citation: | [2019] ACTSC 122 |
Hearing Date: | 9 May 2019 |
DecisionDate: | 9 May 2019 |
Before: | Elkaim J |
Decision: | See [20] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – conspire to commit bestiality |
Legislation: | Criminal Code 2002 (ACT) s 48 Crimes Act 1900 (ACT) s 63A Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 |
Cases cited: | R v Lee [2019] ACTSC 14 Zonneveld v The Queen (No 2) [2018] ACTCA 31 |
Parties: | The Queen (Crown) Mark Zonneveld (Offender) |
Representation: | Counsel Ms S Beaumont (Crown) Mr S Whybrow (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal Law (Offender) | |
File Number: | SCC 286 of 2016 |
ELKAIM J:
On 4 February 2018, the offender pleaded guilty to a single charge of conspiring to commit bestiality contrary to s 63A of the Crimes Act 1900 (ACT), by virtue of s 48 of the Criminal Code 2002 (ACT). The maximum penalty for this offence is 10 years’ imprisonment.
On 7 February 2019, I sentenced the offender’s co-conspirator, Jeffrey Lee, to imprisonment for 2 years for his role in this offence. I should note however that there was a vast array of other offences for which Mr Lee was also sentenced (R v Lee [2019] ACTSC 14 (Lee)).
This is what I said about this offence when sentencing Mr Lee, [19]:
The brief facts of this offence involved the offender and another man who met on an internet site called Adult Match Maker which is commonly used for people interested in engaging in sexual activity with each other. The accused and the other man both had an interest in cross dressing and bestiality. They exchanged many messages and photographs of a pornographic nature of each other including photographs involving a dog. There were also a number of video files depicting bestiality. This specific offence is made up of the two men conspiring to carry out sexual activity with a dog called Buddy. The plans that were discussed concerning Buddy included the performance of oral sex upon the dog. Once again the specific details are in the Statement of Facts. I see no reason to repeat them but observe that they dig down to the very depths of depravity. I do however, note that the acts which were proposed to take place before 17 March 2011 were not then illegal.
I note that this offender’s case is that he did not have an interest in bestiality but rather in the assistance it would provide in the pursuit of Mr Lee. I will return to this below.
At first sight the offender’s plea of guilty does not appear to have been made at a very early stage. However I note that the Crown is not entirely without blame in this regard and that prior to the present indictment there was a long history of delay on the part of the Crown (Zonneveld v The Queen (No 2) [2018] ACTCA 31). Mr Lee received a discount of 20% for his pleas of guilty. I think the same discount is applicable here.
The offender was born in 1971. He seems to have had a supportive upbringing which included spending a good deal of time with his grandfather. He completed Year 10 and then left school to undertake an apprenticeship in carpentry. He later obtained a trade certificate in glazing. The offender worked for his father in a home improvement business until 2015. Since then he has worked as a real estate agent but found that he was unable to obtain a licence because of these charges.
The offender has had a number of relationships with females but is currently single. According to the history given by a psychologist, Professor Boer, the offender became interested in BDSM (Bondage, Domination, Sadism and Masochism) in 1997. He had a history of cross dressing from the early two thousands and described his sexual orientation as “bisexual with a romantic preference for females”. His interest in cross dressing led to his relationship with Mr Lee. He gave the following history to the psychologist:
Despite his current charge for conspiring to commit bestiality, Mr Zonneveld stated that he has no sexual interest in animals but was curious about the subject as “fantasy-talk” (i.e. to enhance sexual arousal with his co-accused) due to his romantic interest in his co-accused whom he noted introduced him to both BDSM materials online as well as the subject of bestiality.
Essentially therefore the offender says that the reasoning behind the offence was to draw him closer to Mr Lee rather than any intent to commit any act of bestiality. The Crown countered this suggestion through the tender of a number of emails with persons other than Mr Lee (Exhibit 2). These emails contradict the position put forward by the offender. One example of the depravity, from page 38 of 128, will suffice:
Avg.can.guy to the offender: ……you ever had sex with an animal
Offender to av.can.guy: Yes!!! I’ve had 3 males now & absolutely adore it!!! I’ve had a malamute, border colie & a lab.
Avg.can.guy to the offender: did they cum in you and any pic of you and dog’s
Offender to av.can.guy: No pics babe, & yes have had my ass filled many times & my mouth! I love sucking them cause they just keep cumming and cumming!!!!
To the extent that any submission was made mitigating the offender’s culpability because he had no interest in bestiality, it is rejected. It does seem to me that the email correspondence is more consistent with sexual fantasy dialogue than actual exploits. However, I cannot reach a conclusive finding on this point.
The offender has been seeing a psychologist for some years. He takes antidepressant medication and he has a diagnosis of a generalised anxiety disorder and a major depressive disorder, the latter of moderate severity.
The offender has made genuine attempts at rehabilitation, he has expressed remorse and embarrassment at his actions and I am satisfied that he is unlikely to reoffend. These are important points of distinction with Mr Lee.
The offender does have a criminal record but it is not extensive and not relevant to the current offence. He does not however obtain the benefit of not having any record at all.
In its written submissions the Crown states that the offender is the more culpable of the two conspirators. I do not agree with that assessment. I note the important distinction with Mr Lee whose offences included a number of acts of actual bestiality. In my view the balance of culpability probably suggests greater culpability on the part of Mr Lee although I do not think the distinction is of much consequence.
The imprisonment for two years imposed on Mr Lee must be seen in the context of his overall offending. In addition, I think the greater likelihood is that offences involving dogs, as contemplated by the conspiracy, were more likely to have been performed by Mr Lee. This is in Mr Zonneveld’s favour.
The Crimes (Sentencing) Act 2005 (ACT), primarily through sections 6, 7 and 33, dictates the approach that a court should take to sentencing an offender. Section 10 is also important because it says that a person should not be sent to prison except as a last resort.
I do not see any alternative to a prison sentence. The horror and detail of the actions contemplated by the conspiracy make this an offence of at least medium objective severity.
The offender submitted that there was an extra curial element of punishment arising from the unjustified delay by the Crown in the preparation of its case and the significant costs that had been incurred in meeting the Crown’s fluctuating position. Exhibit 1 contains a bill from the offender’s solicitors in support of this submission. The Crown conceded that I could take these matters into account under the overall heading of the unfairness by the Crown in the preparation of the prosecution. This unfairness extends to the significant time, namely three years, which it has taken to reach this stage.
The offender submitted that I should not apply principles of parity because of the various matters I have discussed above. I disagree. The principles do not require identical sentences as between co-offenders. Rather it is necessary to take into account a sentence of a co-offender to an extent that the co-offender is not aggrieved by a perception that he, or she, was dealt with more severely than the person being sentenced.
I think a sentence of imprisonment, consistent with principles of parity, must be imposed on the offender. I do however accept that this sentence need not necessarily, because of the points of distinction that have been highlighted above, involve full-time custody. In reaching this conclusion, which I must say I have reached somewhat reluctantly, I have been influenced by the attitude of the Crown which, through its representative today, has displayed an attitude of fairness which reflects the highest ideals of the obligations of a prosecuting authority.
I make the following orders:
(a)In relation to the offence of conspiring to commit bestiality (XO2018/31273), the offender is sentenced to 2 years’ imprisonment (after the appropriate discount) commencing today and ending on 8 May 2021.
(b)The above sentence of imprisonment is suspended with immediate effect on condition the offender enter into a Good Behaviour Order for a period of 2 years and comply with his obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and further that he accept the supervision of ACT Corrective Services and obeys all reasonable directions of the Director-General or her delegate for 2 years or such shorter time as the Director-General decides.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: 9 May 2019 |
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