Sentence for Transmitting Indecent Material to Minor

The court sentenced an individual to 12 months imprisonment for using a carriage service to transmit indecent material to a person under 16 years old, emphasising the need for general deterrence.

District Court New South Wales

Medium Neutral Citation: R v [NAME] [2019] NSWDC 206 Hearing dates: 17 May 2019 Date of orders: 29 May 2019 Decision date: 29 May 2019 Jurisdiction: Criminal Before: Lerve DCJ Decision: Sentenced to imprisonment 12 months from 29 May 2019, to be released on self recognizance of $500 for the remaining period of 8 months. Catchwords: CRIMINAL – sentencing – use carriage service to transmit indecent material to person under 16 years Legislation Cited: Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act, 1999 Cases Cited: [NAME] v The Queen (2002) 209 CLR 339 R v [NAME] and [NAME] [2007] NSWCCA 247 R v [NAME] [2012] NSWCCA 123 Xiao v R [2018] NSWCCA 4 R v Aniezue [2016] ACTSC 82 R v Jones unrep NSWCCA 30.6.1994 R v Wallace [2007] NSWCCA 63 R v AD [2008] NSWCCA 289 R v Tuala [2015] NSWCCA 8 R v De [NAME] [2015] NSWCCA 183 Kristensen v R [2018] NSWCCA 189 Whybrow v R [2008] NSWCCA 2 R v Daetz (2003) 139 A Crim R 398 Category: Sentence Parties: Director of Public Prosecutions (Cwth) (The Crown) [NAME] ([NAME]) Representation: Solicitors: [redacted] [NAME] (for [NAME]) File Number(s): 2018/338028 Publication restriction: No publication of the names of [NAME] or anything that would identify them.

Judgment 1. [NAME] was committed for sentence from the [ADDRESS] on 25 January 2019 and pleaded guilty to one count contrary to s 474.27A(1) of the Crimes Act 1914 (Cth) namely: That (he) on 8 September 2018 at Narrandera in the Commonwealth of Australia, a person did commit an offence in that he did use a carriage service to transmit a communication to another person, namely [NAME] and the said communication included material that is indecent and the recipient is someone who is under the age of 16 years, namely 15 years and the sender is at least 18 years of age, namely 35 years.

1. The plea of guilty was adhered to in the Wagga Wagga District Court on 17 May 2019. Until relatively recently the approach taken to Commonwealth offending - that in respect of pleas of guilty an [NAME] received consideration for facilitating the course of justice - was conformably with the principles enunciated by the High Court in [NAME] v The Queen (2002) 209 CLR 339 especially at [9]-[13]. See also the decisions of the [ADDRESS] of Criminal Appeal in R v [NAME] and [NAME] [2007] NSWCCA 247 and more recently R v [NAME] [2012] NSWCCA 123 per Hoeben JA (as his Honour then was)([NAME] agreeing) at [58]-[60].

2. However, there is now the decision of Xiao v R [2018] NSWCCA 4, in which at [277]-[278] the court (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum J (as her Honour then was) and Bellew J) said: In providing for the fact of a plea to be taken into account, in our opinion, the legislature intended the encouragement of guilty pleas not only to provide evidence for remorse or contrition but to assist in the administration of justice. The principle of legality should not affect the attainment of that object. In these circumstances it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that [NAME] and the cases which followed it provide to the contrary, they should not be followed.

1. In the circumstances, noting that [NAME] indicated pleas of guilty at the earliest opportunity, [NAME] should be afforded consideration for facilitating the course of justice taking into account the utilitarian value of the plea of guilty in the form of a numerical discount of 25% in respect of the charge to which he has pleaded guilty.

2. The maximum penalty for the offence is 7 years imprisonment.

Facts 1. The facts are before the court by way of a set of agreed facts within the Crown tender bundle, exhibit A on sentence. [NAME] resided with his father in Narrandera until about April 2018. [NAME] referred to in the charge is the daughter of [NAME]'s father's [NAME], who attended Narrandera most weekends to see her father. [NAME] had some interaction with the children during those weekend visits.

2. The [NAME] of [NAME]'s father and [NAME] openly discussed the children including their ages and the schools they attended. [NAME] was aware of the age of [NAME]. [NAME] had a Facebook profile in her own name.

3. At about 1.22am on 8 September 2018 [NAME] using a Facebook profile in the name of [NAME] "waved" eight times to [NAME] on Facebook messenger. [NAME] and [NAME] were not "friends" on [NAME] was not notified of having been contacted by [NAME].

4. At about 1.27am on 8 September 2018 [NAME] sent [NAME] a video file. The file was posted with a message stating, "Keep this to ya self please your dad has seen me wanking and reckons my cock is alright". The video file, which was of 1 minute and 13 second duration, depicts an unknown male (which [NAME] said in evidence at the sentence hearing was not him) masturbating an erect penis, spitting on the penis and ejaculating on to a tiled floor. The video file had an overlay of text stating, "would you suck it?"

5. On 18 September 2018 [NAME] and a female, [NAME], were attending class at school. Ms [NAME] activated the 'hotspot' function on [NAME]'s mobile phone and opened [NAME]'s Facebook application where she saw [NAME]'s message to [NAME]. She watched about 20 seconds of the video before showing it to [NAME]. 6. [NAME] and [NAME] were both 15 years of age and [NAME] was 35 years of age.

Assessment 1. The Commonwealth's representative helpfully referred the court to the decision of R v Aniezue [2016] ACTSC 82 in which at [32] [NAME] set out the factors to be considered in assessing the seriousness of an offence such as the one for which [NAME] appears for sentence. The factors include the nature of the indecent material transmitted including its explicitness, [NAME]'s level of awareness and indecency and deliberateness in communicating, the age differential between [NAME] and [NAME] and [NAME]'s knowledge of that age, the nature of the relationship between [NAME] and [NAME], the period of time over which the communication took place and the number of messages transmitted and whether the person with whom [NAME] communicated is a child or a police officer or other adult impersonating a child.

2. In the matter presently under consideration the material transmitted was a video file of 1 minute and 13 seconds showing very explicit sexual activity of a male masturbating to ejaculation. [NAME] said in his evidence that the person depicted was not him. Therefore he would have had to seek out that material and download it in order to send it to [NAME]. He was not a Facebook friend with [NAME] and therefore would have had to have sought that out as well. [NAME] was 15 and [NAME] 35, with [NAME] being well aware of [NAME]'s age. There was only one communication. There was only one message but it was of a video file rather than "chats". [NAME] was a child. As the Commonwealth's representative submits in the written submissions within exhibit A on sentence, there were two victims in that one of [NAME]'s friends also saw part of the material. Mr Jones for [NAME] submitted correctly that [NAME] was 15 years of age which is very much towards the upper end of the age range contemplated by the legislation. This does not make the matter less serious, rather the matter would be more serious if [NAME] was younger.

3. The Commonwealth also submitted that the matter was sent with a sexually predatory purpose. Mr Jones who appeared for [NAME] submitted that the Court should be cautious about using such language lest the principle enunciated by the High Court in De [NAME] v The Queen be breached. While clearly - given the content of the video file, the associated message and the overlay - there was a sexual motive behind sending the message I could not regard it as grooming type behaviour.

4. I indicated in the course of the sentence hearing that I was of the opinion that given those factors present to which I have just referred, the matter was well within the mid-range of seriousness. I did not understand the Commonwealth to dissent, although I have no note or memory of any particular submission made in that regard. My impression was that Mr Jones on behalf of [NAME] was submitting that the matter was less serious that what I suggested. Given all of the factors to which I have referred including the age of [NAME], I maintain my original opinion that the matter is well within the mid-range.

Criminal History 1. [NAME] was born on [DATE] and accordingly was 35 at the time of offending and is still 35 at the time of sentence. He has no history as a juvenile however he has a number of convictions recorded against him in the [ADDRESS] including Commit Act of Cruelty on an Animal in 2003 in respect of which a fine was imposed and Drive Vehicle within Illicit Drug Present in Blood also in respect of which a fine was imposed. In July 2017 he was convicted of Drive Under the Influence of a Drug in respect of which he received a fine and a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act, 1999 (as the provision then was). On the same date he was convicted of other offences committed later than the DUI being Intimidation, Assault Police and Resist Police. He was released on s 9 bonds in respect of each of those offences but was called up and on 24 August 2018 was released on further bonds to be of good behaviour. The offence for which [NAME] now appears for sentence was committed 15 days after his appearance for the breach of the bonds. He was fined on 24 August 2018 for Possess Prohibited Drug.

2. While the criminal history of [NAME] is not particularly extensive I am also of the opinion that the history is such that [NAME] is not entitled to any particular leniency. While s 21A(2)(j) of the Crimes (Sentencing Procedure) Act does not apply in this matter as it relates to Commonwealth offending, it is uncontroversial that a breach of conditional liberty in a matter of aggravation. See for e.g. R v Jones unrep NSWCCA 30.6.1994; R v Wallace [2007] NSWCCA 63 at [15] and R v AD [2008] NSWCCA 289 at 41].

[NAME]

1. In this matter the court is favoured with two [NAME] impact statements, which are also included within the Crown tender bundle exhibit A. [NAME] was in court for the sentence proceedings but was content for [NAME] impact statement to be part of the record without it being read aloud on to the court record. 2. [NAME] impact statements speak eloquently of the type of harm that the type of insidious conduct in which this [NAME] engaged can have on [NAME]. Not surprisingly [NAME] is now reluctant to visit her father. The effect of the crime on [NAME] is one of the factors that indicate that general deterrence is a real issue in sentencing for offences of this type.

3. However, without deprecating the obvious effects on the young [NAME], given the effect of the decision of the Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8 I cannot deal with the effects on [NAME] as being any factor of aggravation. However the effects on [NAME] are relevant to the consideration of s 16A(2)(e) and s 16A(2)(ea) of the Crimes Act 1914 (Cth).

General Deterrence 1. The Commonwealth submitted both in the written submissions within exhibit A on sentence and orally at the sentence hearing that general deterrence is a "highly relevant" factor in sentencing for offences such as the matter presently under consideration because of the paramount public interest in promoting the protection of children. The authority cited in support of that submission is R v De [NAME] [2015] NSWCCA 183 at [72(h)].

2. Further, on the issue of general deterrence I note what was said by Payne JA (Hulme J agreeing with additional comments, Button J agreeing) in Kristensen v R [2018] NSWCCA 189 at [13], namely: "This is a case where general deterrence looms large: s 16A(2)(ja) Crimes Act and R v Linardon [2014] NSWCCA 247. These types of offences can have a profound impact upon victims who are vulnerable due to their young age. There is intrinsic harm caused by indecent internet communications with children even if the repercussions upon a particular child do not become apparent immediately. In addition, the difficulty of detecting this type of offending behaviour, and the need to protect children and young persons from online predators, means that general deterrence is of great importance…."

1. Further, there is also an issue for specific deterrence to be addressed. [NAME]'s record and the breaches of bonds to which I have already referred, taken with the fact that there have already been attempts at rehabilitation, I cannot find on balance that [NAME] is unlikely to re-offend (see Kristensen at [15]).

2. In submissions in reply Mr Jones on behalf of [NAME] put that [NAME] has made and is making sincere attempts at rehabilitation. Be that as it may, these are still early days. In all of the circumstances, noting the two previous attempts and the admitted use by [NAME] of illicit substances at Easter time, I am not prepared to find at this point on balance that there are good prospects of rehabilitation. Much will depend on how [NAME] engages with appropriate professionals in the future.

Sentence Assessment Report 1. The court is assisted by a Sentence Assessment Report (SAR) dated 17 May 2019, which is exhibit B on sentence. That report sets out that [NAME] has been unemployed since 2013 after having been dismissed due to substance abuse and anger issues. Clearly there were serious substance abuse issues in that [NAME] told the author of the report that at the time of the offending his primary concern was his substance use and he did not care about the impact of his behaviour on others.

2. The SAR also sets out (p 2) that [NAME] has had a substance abuse issue since he was 18. [NAME]'s oral evidence indicated that he may have had the problem at a younger age.

3. An assessment was made using the STATIC 99 tool. The result was above average and [NAME]'s sex [NAME] supervision assessment is low due to the limited number of dynamic risk factors. Overall he was assessed as a medium risk of reoffending. Given this assessment and the breach of conditional liberty the court cannot conclude on balance that [NAME] is unlikely to reoffend.

4. The author of the report indicates (p 3) that [NAME] has a good level of insight into the trauma and distress the offence caused and he appears genuine. This fortifies me in the conclusion that I deal with later in these remarks that [NAME] is remorseful and that he has shown genuine contrition.

Subjective Case 1. An affidavit sworn by [NAME]'s father was read and [NAME] and his father gave oral evidence at the sentence hearing.

2. Going initially to the father's affidavit, [NAME] sets out that he is 66 and retired. He has been the secretary of the Narrandera branch of Alcoholics Anonymous for 28 years and has been a member of the [NAME] for 38 years. [NAME] is one of two children. [NAME]'s mother was diagnosed with Multiple Sclerosis before [NAME]'s birth. There were many difficulties associated with [NAME]'s mother's condition. [NAME] was bullied at school because of the involvement in the church. [NAME] was sexually assaulted when he was 18. [NAME] commenced using meth-amphetamine or "ice" around this time. [NAME] has struggled with an addiction to that substance. The affidavit sets out that [NAME] has had two attempts at rehabilitation, one at the [COMPANY] in Sydney and the other at [COMPANY] on the central coast of New South Wales. Further, the affidavit sets out that [NAME] has been subject to threats and abuse because of this offending.

3. The reference from [NAME], senior minister, confirms that [NAME] and his father regularly attend the [NAME]. [NAME] is receiving assistance from Mr [NAME] and other members of the church with his battle with illicit substances.

4. In oral evidence [NAME] confirmed the contents of the affidavit. He is of the opinion that his son, [NAME], suffers from mental health issues including depression and low self-esteem. [NAME] is now receiving some counselling and in this regard I note the letter from [NAME], an accredited Mental Health and Social Worker, who is seeing [NAME] regularly. The letter sets out the strategies on which she is working with [NAME]. 5. [NAME] also mentioned in his oral evidence the fact of his son being sexually assaulted at the age of 18 years by a man about twenty years older who had befriended his son. He only became aware of this sexual assault after [NAME] had been to rehabilitation. He has discussed the matter with his son and [NAME] wishes to continue with the counselling.

6. Further, [NAME] spoke to his son after his arrest when he was driving him back from his initial appearance at the [ADDRESS]. [NAME] told his father that he felt really bad about it, that he did not know why he did it and that it occurred while he was in active addiction to drugs. [NAME] enjoys the very considerable support from his father. 7. [NAME] gave evidence. His demeanour was quite animated although I attributed this to nerves about the situation in which [NAME] found himself. He said that he was introduced to cannabis at the age of 14 years and to alcohol about the same time. He was introduced to "ice" in his later teenage years. Initially he turned to "ice" as a coping mechanism after the sexual assault. He is not completely abstinent as he used "ice" at Easter time, which is only a few weeks ago. I accept however that this was an isolated incident.

8. The evidence continued that he was under the influence of "ice" when he sent the offending material to [NAME]. He was aware it was wrong and inappropriate and he should not have done it as [NAME] was a minor. When asked why he did it he said that he was not in the right mental frame. He went on to say that he was very sorry for what he did and it was a cowardly act. He accepted that being under the influence of substances did not excuse the conduct.

9. I accept on the balance of probabilities that [NAME] has shown contrition for the offence. He has said not only that he is sorry but he has accepted responsibility for what he did and acknowledges that it was entirely inappropriate. It is somewhat refreshing to hear an [NAME] express contrition or remorse in their own words rather than the more usual, "I am very remorseful" which all too often gives the appearance of being learnt by rote.

10. A little later in his evidence [NAME] acknowledged that he had read [NAME] impact statements and said that reading them made him feel ashamed and upset.

11. Under cross-examination [NAME] maintained that he would continue seeing [NAME] and continue receiving counselling. It would seem from answers given under cross-examination that [NAME] has not done anything in particular so far as pursuing any further course of residential rehabilitation. 12. [NAME] said in evidence that after returning to Narrandera he was assaulted on two occasions. On one occasion he was punched three times which did not result in any particular injury and on another occasion he was confronted in a supermarket and called a paedophile. The father's affidavit refers to two assaults. This evidence was relied upon by Mr Jones to ground a submission on extra curial punishment.

13. In Whybrow v R [2008] NSWCCA 2 [NAME] at [21]-[25] reviewed a number of authorities on the issue of extra curial punishment. One such authority reviewed was R v Daetz (2003) 139 A Crim R 398 where it was made tolerably plain that extra-curial punishment can be taken into account, "where [NAME] has already suffered some serious loss or detriment as a result of having committed the offence".

14. I put to Mr Jones in the course of taking submissions in the sentence hearing that given the evidence I would have difficulty in finding extra curial punishment. However, on closer consideration I am prepared to find that there has been some extra curial punishment. However, the impact on the sentence to be imposed is not in any way significant.

15. Mr Jones put and I accept that there should be a discount for the plea. I dealt with that issue earlier in these remarks. I did not understand the Commonwealth to take issue with the proposed discount. Mr Jones on behalf of his client conceded that the material sent was highly offensive in nature, but also put that other factors such as that there was only one communication and it was not part of an ongoing course of conduct also has to be factored into the assessment of the seriousness of the matter. I have dealt with the issue of the seriousness of the matter in some detail. Also on this issue it was put that there was no high degree of trust and [NAME] was the daughter of a [NAME].

16. It was also put that the offending was spontaneous. While the actual transmission of the material may have been spontaneous, as I have already made clear the offending involved [NAME] locating the offensive material and downloading and keeping it in order to be able to transmit that material. Plainly enough [NAME] had put some thought into what he eventually did.

17. Mr Jones submitted that although given the offending a sentence of imprisonment was appropriate, the court should nevertheless deal with the matter by the imposition of a sentence which was then immediately suspended. I understood the Commonwealth to submit that any sentence should contain a component of full time custody.

18. The Commonwealth's representative helpfully provided the court with comprehensive written submissions that are part of the Crown tender bundle exhibit A. Annexed to the submissions are copies of the decisions in R v Aniezue [2016] ACTSC 82, a decision of [NAME] of the ACT Supreme Court, and Kristensen v R [2018] NSWCCA 189.

19. The parties agree, as do I, that the factual situation in Kristensen is more serious than the matter presently under consideration. Mr Jones on behalf of [NAME] made the same submission in respect of Aniezue. As I understood the submissions, the Commonwealth submitted that it was not as serious as the matter presently under consideration. I am of the opinion given the pre-planning (i.e. the obtaining of the material and retaining it and finding [NAME] on Facebook) and the nature of the material being a video of actual activity rather than "chats", the facts in the matter presently under consideration are more serious than that in Aniezue.

20. In their written submissions the Commonwealth addresses the objective seriousness of [NAME] and the nature and circumstances of the offence. I have already made findings in respect of those matters. I have dealt with [NAME] impact statements but I note that there were two victims, both of whom were 15 year old girls. The submissions then go on to address the various factors within s 16A(2) of the Crimes Act 1914 (Cth). Helpfully, the submissions also include the mechanics of imposing sentences in respect of Commonwealth offending.

21. The Commonwealth in oral submissions reminded the court of the effect of the crime on [NAME]. I have already dealt with that when dealing with [NAME] impact statements. It was also submitted, and I agree for reasons already given, that the offending was not entirely spontaneous. It was put and I agree that the court would be cautious about finding good prospects of rehabilitation. In answer to a question by me, the Commonwealth submitted that given the nature and seriousness of the offending it would be appropriate for [NAME] to spend some time in actual custody. In this regard I note that although [NAME] in [NAME] was released immediately he had spent over four months in pre-sentence custody.

Section 16A(2) Crimes Act 1914 (Cth)

1. Although most of the various matters that require consideration pursuant to s 21A(2) of the Crimes Act 1914 (Cth) have already been dealt with in other parts of these reasons I will go through the section. The nature and circumstances of the offence have been dealt with in some detail. There are no other offences to be taken into account. The offending was not part of a course of conduct. The personal circumstances of [NAME] are set out in [NAME] impact statement. That also sets out the effect on [NAME] and the harm suffered. I have found on balance that [NAME] has shown contrition. The degree to which he has shown contrition is difficult to quantify but in the circumstances of this case, noting [NAME] was in court at the time [NAME] gave evidence, there is little more he could do. There is nothing [NAME] could do to make reparation. Section 21A(2)(fa) is not a consideration. The plea of guilty has been taken into account as set out in the early part of these reasons. Within what is possible [NAME] has co-operated with law enforcement agencies. I have referred to the issues of general and specific deterrence. The need to impose an adequate punishment is part of the instinctive synthesis process of determining the appropriate sentence. The character, antecedents, age, means and physical and mental condition have been taken into account. I add however that little is known about the physical and mental condition of [NAME]. I have made findings as to the prospects of rehabilitation. Section 16A(2)(p) is not a relevant consideration.

2. There is one further matter: At the sentence hearing I was able to carefully observe and listen to [NAME] while he gave evidence. It occurred to me particularly when I began to write these remarks that given experience in dealing with numerous offenders over the years that there may have been an issue with intellectual functioning. In those circumstances I had my Associate contact the parties, in particular the representative for [NAME], and inquire as to whether he wanted to adjourn the matter to obtain some type of expert report noting that none had been tendered. Recently a message was received to the effect that no adjournment was requested. I will proceed to deal with the matter on the material that I have.

3. Section 17A(1) of the Crimes Act 1914 (Cth) provides A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

1. In this matter given the nature of the offending, my findings as the sseriousness of the offending and the need for general and specific deterrence I am firmly of the opinion that no other sentence other than imprisonment is appropriate in all of the circumstances of the case. Mr Jones for [NAME] did not argue otherwise – he submitted that any sentence would be subject to an order for immediate release pursuant to s 20(b) of the Crimes Act.

2. I have given this matter a great deal of consideration since the matter was before me. I remain troubled by the issue of functioning to which I alluded a little earlier in these remarks. However, it is appropriate to deal with the matter on the material available. Given in particular the nature of the offending and the need for general deterrence I am of the opinion that the sentence should have a component of full time custody. However, that period of actual custody need not be substantial.

3. In all of the circumstances I am of the opinion that the appropriate starting point for the sentence is one of 18 months imprisonment from which is to be deducted the 25% for the allowance for facilitating the course of justice and the utilitarian value of the plea. With some rounding down in favour of [NAME], that leaves a total sentence of 12 months imprisonment.

Orders 1. [NAME], in respect of the matter to which you have pleaded guilty you are convicted.

2. Consequent upon that conviction you are sentenced to imprisonment for a total period of 12 months, which will date from today 29 May 2019 and which will expire on 28 May 2020.

3. I direct pursuant to s 20(1)(b) of the Crimes Act 1914 that after a period of four months you be released on recognizance yourself in the sum of $500 for the remaining period of 8 months. The recognizance is conditioned that you:

1. Be of good behaviour; and 2. Accept the supervision and guidance of the New South Wales Department of Community Corrections.

1. I am required to explain that sentence. You have been convicted of the offence that is shortly known as Use Carriage Service to Send Indecent Material to a Person aged under 16 years. You have been sentenced to a term of imprisonment of 12 months. You will serve four months in actual custody after which you will be released on a recognizance, which is another word for a bond, for a period of eight months. That recognizance is conditioned that you be of good behaviour, i.e. you do not commit any further offences, and that you be supervised by Community Corrections (which was previously known as the Probation and Parole Service) while on that recognizance.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 May 2019