DPP (Cth) v HALBISCH

[2021] NSWDC 306

District Court of NSW|2021-06-25|Before: Mr P, Price J, Bellew JJ

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At a glance

Source facts

Court

District Court of NSW

Decision date

2021-06-25

Before

Mr P, Price J, Bellew JJ

Source

Original judgment source is linked above.

Judgment (16 paragraphs)

[1]

Judgment THE COURT REMINDS ALL CONCERNED THAT THERE MUST BE NO PUBLICATION OF THE NAME OF THE CHILD VICTIM OR ANYTHING THAT MIGHT TEND TO IDENTIFY HER.

According to the Notice of Committal document the offender was committed for sentence from the Wagga Wagga Local Court on 10 February 2021 in respect of two charges, namely: 1. H 77696767 Sequence 1: That on 17 March 2019 at Junee in the State of New South Wales, Paul Douglas Halbisch being 27 years of age used a carriage service to transmit communications to the recipient, namely SC, a person under the age of 16 years, with the intention of procuring the recipient to engage in sexual activity with him, contrary to s 474.26(1) of the Criminal Code 1995 (Cth); and further 2. Sequence 2: That on 17 March 2019 at Junee in the State of New South Wales, Paul Douglas Halbisch used a carriage service to solicit material and that material was child pornography material, contrary to s 474.19(1) of the Criminal Code 1995 (Cth).
However, at the sentence hearing the matter proceeded on the basis that sequence 1 was the substantive matter for sentence and sequence 2 was placed on a Form pursuant to s 16BA of the Crimes Act 1914 (Cth). I understood it was accepted at the sentence hearing by both parties that in dealing with a matter placed on a Form pursuant to s 16BA of the Crimes Act 1914 (Cth) the principles enunciated by the Court of Criminal Appeal in The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146 apply.
In this regard I note the decision of R v Lamella [2014] NSWCCA 122 where at [48] Price J (Garling & Bellew JJ agreeing) said: "Section 16BA Crimes Act (Cth) permits the court, with the consent of the prosecutor, to take into account other Federal offences to which an offender has pleaded guilty. There is, in my view, no reason to think that Spigelman CJ's approach in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 to New South Wales offences included on a Form 1 does not apply to Federal offences included on a schedule. Spigelman CJ considered at [42] that offences included on a Form 1 are to be taken into account to increase the penalty otherwise appropriate by giving greater weight to the need for personal deterrence and the community's entitlement to extract retribution for serious offences.

[2]

Facts

The facts are before the court by way of a set of agreed facts to which no apparent objection was taken at the sentence hearing. I will refer to the victim using that word rather than her name. This is not to depersonalise the victim but rather to maintain her anonymity.
In February 2019 the victim who was then 7 years of age was broadcasting on the social media application "BigO" which is a live streaming mobile application relating to gaming that allows users to stream and interact with other users on the platform. The offender while using the application and using the online identity of James Harris sent the victim a "like" followed by a private text message.
The victim cannot recall the exact nature of the conversations that occurred throughout the interactions with the offender while corresponding on the BigO application. However they involved the victim sending the offender photographs of her cat, herself on the bed and on the trampoline. There is no evidence that these communications were sexual in nature.
Between 11 March and 16 March 2019 the victim and the offender who used the username "James Harris" engaged in communication with each other over BigO. On 16 March 2019 the victim suggested that she and the offender commence communicating on the application "Discord". Discord is a social medial application that provides for voice, video and text chat between users.
Between 16 March 2019 and 20 March 2019 the offender using the online identity of "JamesYaBoi73" and the victim engaged in communications via Discord. Paragraphs 6 to 10 inclusive of the agreed facts deal with the solicit offence. Essentially, the offender was soliciting photographs of the victim.
The solicit offence occurred over a number of exchanges on the Discord application that occurred in the afternoon of 17 March 2019. At 1.37pm the victim called the offender and engaged in a conversation with him. The offender responded by text saying, "Hi, lol, I hear you, lol, nice, can you see what I say, can you see what im saying? O.o, do you like talking to me on mic, are you able to vice text chat while you talk on mic, talk here for a second". The victim replied with a text saying "P. Yeah" to which the offender replied with a text stating, "watch the txt chat while your on mic silly". The victim send a text, ok".
The offender told the victim via text that she was "pretty" and "you have a good voice haha". The pair was discussing something unknown. The offender was responding with "Umm, IDK, oh no, ha ha, are you alone in your room O.o. The victim sent the offender an image which was non-sexual in nature.
The offender then asked if the victim liked his dares before and if the victim liked showing him the picture of her in her underwear. The victim then sent a picture of her face to the offender.
At 1.54pm the offender stated to the victim, "I dare you to show me in your underwear now ha ha". The victim sent a picture of her face. At 1.56pm the offender stated to the victim "could just take a picture of belly down ha ha take off your underwear, oh no, Im jk". The victim then sent a picture of her holding up her t shirt exposing her torso and chest. In this photograph the victim's face is partially covered by her hair and her nipples are covered by her hair and t shirt.
At 1.57pm the offender responded to the victim "nice, look good tho, do you like showing me things like that, he honest, I like it". The victim was using the Discord platform call function however it is not known what she was saying but the offender was responding by texting "yes, lol". At 1.58 the offender asked the victim, "what if you showed me your underwear and shorts off", followed by, "Idk, what, no, don't be so mean, plus you should be talking to me:p, yeah good". There were other text messages of a similar nature sent until 2.02 pm. It is not known what the pair were orally discussing at the time the texts were being sent.
The facts then go on the detail the procuring offence. It seems that the two offences are the one ongoing course of conduct on 17 March 2019. At 2.02 pm the offender sent a written message to the victim saying, "my dare I gave you, putting finger in something, yeah, do it now, heh". The offender then stated, "Putting your finger into the hold [hole?] between your legs…that dare". The offender then stated, "no, front one, tell me if it's going in". He then asked, "Did you put it in there tho? How far? Good ha had did you put the finger into your part far? Haha".
Then at 2.07pm the offender stated to the victim, "how did it feel? Dare you to wet your finger and do it, like lick your finger then try, which I could see you put it in haha, video clip, heh".
At 2.12pm the victim sent a text to the offender asking, "Yo want me to call back?" The offender then tried to call the victim and the victim then started a call to the offender. The offender in a written message said, "I figured it out, you can video now, I blocked mine".
At 2.16pm the victim started a call to the offender. The offender stated I can't see you, tape, lol, could I see you do that thing, lol, yes, I cee you, can you do it, needs to be lower, I can't see, lower I can see, wait, bit lower".
At 2.20pm the offender instructed the victim, "and move to the middle, I didn't see, did you even put it in your fanny, should take off your underwear and hold your phone up to it and put it in, like lay down and open your legs lol". At 2.23 pm the offender texted "ok bye" to which the victim replied "Off ;-; Bai". At 2.23pm the victim attempted to start another video call however there is no evidence that the call occurred or if such a call did occur what the substance or the duration of the call was.
At 5.09pm the victim messaged the offender asking the offender to call her. The pair had another video chat at 5.26pm. There is no evidence of any discussion of a sexual nature. At 5.26pm the victim attempted to start another two video calls with the offender however there is no evidence that the calls occurred or such a call did occur what the substance or the duration of the call was.
On 18 March 2019 the pair continued to text and play games on Discord. There is no evidence of any discussion of a sexual nature. On 20 March 2019 at 9.54am the offender sent a message to the victim saying "Hi". At 5.31 pm the victim responded, "leave me alone". On 20 March 2019 the victim's parents discovered the communications between the offender and the victim and reported the matter to police.
On 22 March 2019 a covert operative from South Australia Police resumed the identity of the victim and continued communications with the offender using "JamesYaBoi73" over the Discord Application. During these communications the offender stated that he was a 13 year old boy living in Queensland. On 14 April 2019 the offender sent the covert operative images of a teenage boy that he claimed was him. One photograph was of two boys and the offender said, "me on left". During the communications between the offender and the undercover operative there is no evidence that the offender continued the offending conduct that occurred on 17 March 2019. The offender did not contact or communicate with the undercover operative after 12 May 2019.

[4]

Assessment

Of particular significance to the objective seriousness of the substantive matter is the age of the victim, namely 7 years of age at the time of the offending. There is nothing in the facts that indicates that the offender was aware of the precise age of the child. However the victim sent the offender photographs of her on her bed and a trampoline. It must have been apparent to the offender that he was communicating with a young child. As much is accepted by the offender.
In respect of the solicit offence on the Form the victim was a real child rather than an assumed identity, which makes the matter more serious. A small number of images were solicited. The material would have been new material. The material actually obtained is not particularly graphic and is limited to a photograph of the victim's torso and chest area, noting that her nipples were covered by hair and the shirt. However, the offender did solicit a photograph of the victim with her underwear and shorts off, clearly indicating the genital area. The solicit offence occurred over a relatively short period of time over 4 exchanges over social media. The solicit offence goes beyond the photographs of what was actually obtained and includes the offender asking for photographs without her underwear and shorts. Noting the features of the offending and particularly the age of the child it is a quite serious example of that offending.
The procuring offence is also made more serious by the victim being a real child who is young. The victim is well under the age of 16 years contemplated by the section and indeed was slightly less than half that age. As with child sexual assault offences the younger the child generally more serious the offence will be. The age difference between the offender and victim is substantial being almost 20 years. The communications relevant to the offence occurred over a period of about 20 minutes but included persistent requests by the offender including instructions as to what to do. The requests were sexually explicit.
Mr Swaine counsel for the offender at paragraph 14 of his written submissions (MFI 1 on sentence) put that the offender did not use sexually explicit language in his communications, the offender did not persist in pursuing the victim, there was no subsequent invitation by the offender to meet the victim for sexual activity, no monetary inducement was offered, the age differential (being 20 years with the victim being 7), the offender did not encourage the victim to only communicate with him when she was alone, there was no urging to keep the communications secret, there was no manipulation or threats and the offender was not taking advantage of a pre-existing relationship.
For those reasons it was put that the offending was "below the notional mid-range of objective seriousness" of matters contemplated by s 474.26(1) of the Criminal Code 1995.
The Commonwealth's representative (paragraph 15 of the Prosecution's written submissions) notes that the child was a real child, the age of the child and the age differential between the child and the offender, the offender initiated contact on the "BigO" platform by liking the victim's live stream and sending her a private message, the offender used online identities to conceal his real identity, the offender sought to build trust and rapport with the victim by asking her if she liked talking to him and by telling her that she was pretty, the offender was aware of the victim's young age as the victim sent a photograph of herself, the offender was aware of the illegality of his conduct noting that he asked to victim, "dare you show me you your underwear…" and the instructions to the child to engage in the sexual activity by placing her finger in her vagina was grossly indecent. The Commonwealth also helpfully set out at paragraph 14 of the submissions the various matters that inform the objective seriousness of the matter.
There were a number of communications between the victim and offender over a number of hours on the one day. I am not prepared to find that there was any real persistence by the offender, noting the number of conversations. The nature of the request of the victim to engage in digital penetration of herself was graphic and as the Commonwealth submitted grossly indecent, the victim was a real person aged 7 with an age differential of 20 years between the offender and the victim. There was no prior relationship and no position of trust. On the material before me I could not be satisfied that there was any intention of the offender to go beyond the conduct that occurred on the day of the offence, noting that the offender did not continue communications with the police operative. There were no inducements offered. I could not be satisfied that there was any future sexual activity intended. The communications were definitely deliberate and explicit. There was limited planning but the offender did use on line identities to conceal his true identity. Clearly the offender was well aware of the illegality of the conduct in which he was engaging.
The Commonwealth submitted that the matters were serious. Of that there can be no doubt, but all matters have their place on the scale of seriousness. My note and memory is to the effect that Mr Swaine submitted that the "procure" offence was marginally below mid-range.
Taking the matters to which I have referred into consideration but particularly the fact that the victim was a real child who was 7 and the explicit nature of the communications the procuring matter is at the mid-range of seriousness, but in the lower half of the mid-range. In this regard I note the relatively limited number of communications and the fact the conduct occurred on the one day.
I have set out the facts in detail and made findings as to the seriousness of the matters, which deals with the nature and circumstances of the offences as required by s 16A(2)(a) of the Crimes Act 1914.
I now go to ss. 16A(2)(b) and (c) of the Crimes Act. There is one other offence required or permitted to be taken into account, that being the matter on the Form pursuant to s 16BA of the Crimes Act 1914 (Cth). I have detailed the facts of that matter and earlier in these reasons set out the principles to be applied in taking that matter into account. Both offences involved a number of communications. That has been amply set out in the facts and taken into account in determining the seriousness of both matters. I am not of the opinion that the offences form part of a course of conduct for the purposes of s 16A(2)(c).

[7]

General Deterrence

It is accepted by both parties that general deterrence has a significant role to play in the sentencing for offending of the type involved in this matter. Johnson J observed in De Leeuw at [72(c)]: "General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]-[36]; DPP (Cth) v D'Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34]."
Similar observations were made by Johnson J (Leeming JA, Beech-Jones J agreeing) in R v Porte [2015] NSWCCA 174 at [70]. In EG v R [2015] NSWCCA 21 Hoeben CJ at CL (Harrison and Hulme JJ agreeing) said at [42]: "General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment…"
McClellan CJ at CL (Latham & Price JJ agreeing) in R v Asplund [2010] NSWCCA 316 at [50] said: "The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity."
As I observed in DPP (Cth) v Colaiacovo [2021] NSWDC 218 at [44] "Clearly enough, the public policy behind the fact of the significance of general deterrence when dealing with this type of offending is the protection of children". Further as I observed at [45] of that decision it is plain that intermediate appellate courts in all Australian jurisdictions have made it clear that general deterrence has a significant if not primary role to play in sentencing for the type of offending for which this offender appears for sentence.

[8]

Victim Impact Statements

In passing sentence the court is required by sections 16A(2)(d) and (e) of the Crimes Act 1914 to take into account the circumstances of the victim and any injury loss or damage caused. The Commonwealth relied on the victim impact statements prepared by the victim and the victim's mother. In that regard I note s 16AAAA of the Crimes Act 1914 (Cth) which relevantly provides: Victim impact statements (1) A victim impact statement, for an individual who is a victim of an offence, is an oral or written statement for which the following requirements are satisfied: (a) the statement must be made by one of the following: (i) the individual; (ii) if the court gives leave, a member of the individual's family; (iii) a person appointed by the court; (b) the statement must describe the impact of the offence on the victim, including details of the harm suffered by the victim as a result of the offence; (c) if the statement is written, the statement must be: (i) signed or otherwise acknowledged by the maker of the statement; and (ii) given to both the prosecutor and the offender (or the offender's legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender; (d) if the statement is to be oral, a written or oral summary of the statement must be given to both the prosecutor and the offender (or the offender's legal representative) at a reasonable time before the hearing for determining the sentence to be passed on the offender. (2) However, the court may order that the requirement in paragraph (1)(d) does not apply to a particular oral statement. (3) The Minister may, in writing, prescribe a form for victim impact statements. Such a form does not restrict how victim impact statements may be made. (4) The Minister may delegate, in writing, his or her power under subsection (3) to: (a) the Secretary of the Department; or (b) an SES employee, or acting SES employee, in the Department.
The term 'harm' is defined in s 16 of the Act as including: 1. physical, psychological and emotional suffering; and 2. economic and other loss; and 3. damage.
The Commonwealth sought leave pursuant to s 16AAAA(1)(a)(ii) to rely on the victim impact statement of the victim's mother. That was opposed by Mr Swaine for the offender. The Crown relied on the authorities of R v Alou [2018] NSWSC 221 per Johnson J and R v Khan [2019] NSWSC 594. I read and considered both of those authorities but neither give any particular assistance to the issue and circumstances in the matter presently under consideration. The family members in those cases witnessed the offending.
Mr Swaine's objection was that the victim's mother is not a victim of the offence but is one of the victim's family. Further, as I understood the submission, the harm that is complained of in the mother's victim impact statement goes beyond what a lay person would be able to give evidence about.
The Commonwealth submitted, again as I understood the submission that it is relevant that the victim was only 7 at the time and is now 10 and further the mother's victim impact statement "gives the court a holistic understanding of the harm suffered by the victim".
I granted leave for the Commonwealth to rely on the statement principally because of the young age of the victim. Although she was able to give her own statement it is relevant where the victim is so young to have a parent or guardian also indicate the harm that is caused by the offending.
However, while both victim impact statements are received there is a limit to the use to which those statements can be put. I raised with the parties at the sentence hearing the decision of the New South Wales Court of Criminal Appeal in R v Tuala [2015] NSWCCA 8. I was assured by the parties that there is no authority dealing with the use to which victim impact statements prepared pursuant to s 16AAAA of the Crimes Act 19194 (Cth) can be put. It seems to me that a fair reading of s 16AAAA of the Crimes Act does not impact on the effect of Tuala. Neither counsel were able to take me to any authority on this issue nor have I been independently able to find any. I observe that if the Commonwealth was wishing to rely on a number of aspects of the victim impact statement it was open to the Commonwealth to obtain a report from a treating or qualified medical or mental health practitioner. I note in this regard the child victim had the assistance of a psychologist in the preparation of her victim impact statement.
Section 16A(2)(ea) of the Crimes Act 1914 requires the court to take into account "if an individual who is a victim of the offence has suffered harm as a result of the offence - any victim impact statement for the victim". This appears to have the same practical meaning and effect of s 30E of the NSW Crimes (Sentencing Procedure) Act, 1999. The relevance of referring to the state sentencing Act is that that was the legislation under consideration by the Court in Tuala.
I note in particular paragraphs [77]-[84] of the judgment of Simpson J (as her Honour then was) in Tuala. Her Honour concluded at [84]: "…The victim impact statement could not be used to extend the assessment of the degree of emotional harm, or other loss and damage (including financial loss) beyond that that could ordinarily be expected in the circumstances of the offences, or that which was proved by other evidence. The Crown has not established error in a failure to take into account loss and damage, including financial loss and damage, extending beyond what is encompassed in offences of the kind of which the respondent was convicted."
I will therefore deal with the victim impact statements in accordance with the principles enunciated in Tuala. Clearly the offending has had a long lasting and significant and very adverse effect on the victim. The victim has Autism Spectrum Disorder but the offender was not aware of that. If he was the matter would be more serious than it already is. I accept that the victim is hyper vigilant since the offending. Beyond these matters, noting the absence of any medical or mental health professional's report, there is little further I can make of the contents of the victim impact statements.
These matters and the facts as recited above deal with Sections 16A(2)(d), (e) and (ea) of the Crimes Act 1914 (Cth).

[9]

Evidence from the offender

The offender gave evidence at the sentence hearing. He said that he told Ms Skea, the psychologist and the author of the sentence assessment report (SAR), the truth. The offender was asked, given that he has heard the victim impact statement of the victim's mother read out and he had read the victim impact statement from the victim, what would he say to the victim and her family.
He replied with words to the effect of, "I'm incredibly sorry for what I've done to her and her family". A little later he said that after release from custody he will not re-offend. He said that he has hurt the victim and her family so much and he does not want to that to anyone else. The offender was emotionally (and to my observation) genuinely upset at the time he gave this evidence. I am more than satisfied hearing and watching the offender is remorseful and has shown contrition. As I observed at the sentence hearing it is somewhat refreshing to hear expressions of remorse in the offender's own words rather than the more usual "I am very remorseful", which usually gives every indication of being learnt by rote. Overall I found the offender quite impressive in his evidence.
The offender acknowledged that it was inevitable that he would go to custody. Watching the offender leave the court with the officers from Corrective Services was indication enough that he accepted his fate.
Further the offender accepted that upon his release he would be subject to supervision, that he is prepared to accept that supervision and that he wishes to attend counselling while in custody and on his release. He is prepared to attend counselling in respect of alcohol abuse. It is clear from the report of Ms Skea, Psychologist, that the offender was abusing alcohol at the time of the offending. In answer to a question from me he said he was "drinking a lot" at the time.
Upon release the offender hopes to obtain employment at a solar farm at Bomen, which is the heavy industrial area of Wagga Wagga. He intends to live in his own house in Junee upon his release.
Under cross examination the offender agreed that he told Ms Skea that at the time of offending he was not "pissed or drunk off his head", meaning apparently not overly intoxicated. He agreed that the exchanges with the victim were sexually explicit. He confirmed he would be prepared to receive treatment for the various risk factors identified in the report annexed to the SAR. He confirmed that part of Ms Skea's report that he has been receiving treatment from Dr Roger Blake who he has seen ten or so times. He said that the sessions with Dr Blake were helping. By way of explanation Dr Blake, who is a local psychologist in Wagga Wagga, is known to this court as a very experienced and competent treating psychologist.

[10]

Ms Skea's report

Ms Skea interviewed the offender's mother as well as the offender. The offender's mother reported that the offender struggled with making friends and was socially awkward.
The offender reported an intact memory of his behaviour at the time of offending. He told the report writer that "someone was listening to me". However I note that he knew the child was very young. The offender expressed remorse consistent with his evidence at the sentence hearing. He was drinking at the time of offending and believed that his drinking assisted with building the courage to commit the offences.
The offender described a close and loving relationship with his mother devoid of issues with abuse or neglect, criminality or substance abuse. However he witnessed and experienced emotional abuse from his step-father towards his mother. I explored this with the offender at the sentence hearing. I am satisfied that he offender did witness such emotional abuse on a very regular basis. The principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened but to a limited extent. The moral culpability of the offender is therefore reduced but again to that limited extent.
Further the offender gave a history of being bullied as school. He has had a variety of unskilled jobs. He resigned from the employment he had at the time of the offending because of bail conditions.
The offender told Ms Skea that he considered himself to be heterosexual and he denied being attracted to children. He was in a relationship of two or so years at the time of the offending. The relationship was described as emotionally and physically unfulfilling. \He has one close friend.
According to the report the offender has used alcohol heavily since he was 18 years of age. He thought that his alcohol was a problem. This is also consistent with the evidence he gave at the sentence hearing. However, the offender said to the report writer that he was not "pissed or drunk off my head" at the time of the offending. The offender is presently being treated by Dr Roger Blake, a psychologist of Wagga Wagga.
After administering a number of tests Ms Skea concluded that the offender did not evidence signs of developmental disability. At paragraph 15 Ms Skea reports that the offender performed within normal limits on all aspects of his intellectual and cognitive functioning. There were no obvious signs of depression and there was no evidence of intoxication or psychosis. However social awareness, social cognition, social communication and interaction and restricted interests and repetitive behaviours were identified as underlying areas of clinical concern.
The offender was assessed as being an average risk of re-offending. Ms Skea opines (paragraph 18) that difficulties with social and interpersonal functioning, intimacy deficits, mood regulation and alcohol misuse are dynamic factors that require targeting to minimise the risk of re-offending.
Ms Skea concluded (paragraph 21) that the offender has a long history of social difficulties going back to childhood. Despite concerns over responses from the offender's mother there was "little in (the offender's) presentation to raise concerns about an autism spectrum disorder. She goes on to opine that the offender may be suffering from either a generalised anxiety disorder or social anxiety disorder and she suggests that this should be explored by the treating psychologist.
Finally Ms Skea recommends a period of supervision (such as that which can be provided by Community Corrections) is recommended to support the offender's stable functioning and engagement with treatment in the community.
Clearly enough the offender will need some intensive supervision upon release. I note the effect of decisions such as Hili & Jones v The Queen [2010] HCA 45 that there is no accepted "norm" of the ratio of the non-parole period and the total sentence. However in the matter presently under consideration given the age of the offender, the fact that this is his first time in custody and the need for supervision as identified by Ms Skea I am firmly of the opinion that the period on parole should be meaningful such as to allow the supervision Ms Skea suggests. Also relevant to this issue is the need for supervision to ensure the offender does something meaningful about his issues with alcohol abuse. I note that in the decision of R v Lamella [2014] NSWCCA 122 the judge at first instance was criticised for giving insufficient reasons for determining the non-parole period should be 50% of the total sentence. Price J (Garling & Bellew JJ agreeing) said at [63]: "In my view, a non-parole period of 4 years neither appropriately reflects the seriousness of the respondent's offending, nor does it ensure that the respondent is being adequately punished for his offences and does not take into account the fundamental importance of general deterrence."
The matters referred to in the report are put forward as matters that go to the overall subjective mix. I agree that that is the use to which the contents of the report should be put. There is certainly no evidence of any causal connection between any mental condition and the offending, nor for that matter, is there any submission to that effect.

[11]

Sentence assessment report

The court is assisted by a Sentence Assessment Report (SAR) together with another document entitled "Structured Case Note for Sentence Assessment Report", the latter document being directed towards the issue of the likelihood of re-offending. The author of the latter document did not interview the offender for the preparation of the report. The offender was assessed as being an average risk of reoffending, which is consistent with the findings of Ms Skea.
The SAR notes that the offender is currently unemployed and supported by social security but he had a good employment history until his arrest.
The author of the report notes that the offender "did not minimise or justify his offending" but went on to say that the offender attributed his behaviour to the state of his relationship with his former partner. The SAR notes that the offender felt depressed and lonely and he was "not getting enough affection form his former partner".
The difficulty so far as that is concerned is the nature of the offending. I have already observed that given the offender received photographs of the victim he must have been aware of the young age of the child. Indeed the SAR notes that he was aware of the age of the child. He must therefore have realised that what he was doing was very wrong.
The offender told the author of the SAR that he became active on social media sites not for dating but just to chat to people. Initially this occurred to me as absolutely minimising his offending. He was engaging in sexually explicit exchanges with an eight year old girl. However, after considering the offender's evidence at the sentence hearing and further consideration of Ms Skea's report it occurs to me that the offender may not have at the time of the offence realised the enormity of his offending conduct.
According to the SAR the offender described himself as a social drinker but said that his alcohol consumption had a significant influence on his offending. The report goes on to observe that the offender did not think about the consequences at the time of offending due to his alcohol consumption.
I note that the other document annexed to the SAR notes that the author of that document had reference to a report from Dr Roger Blake, Psychologist. The offender expressed regret about his behaviour and is currently engaging with Dr Blake in a professional capacity. The offender acknowledged to the author of the report that he would benefit from drug and alcohol counselling, but it seems that there has been nothing of a positive nature done in this regard.
The offender has been assessed as being at a medium risk of re-offending, which is the conclusion contained in the document annexed to the SAR. That document also notes that the offender was living with his domestic partner of two years, which ended on the arrest of the offender.

[12]

Submissions of the parties

Both parties provided written submissions, which were accompanied by a table of what were said to be comparable cases.
Mr Swaine for the offender in his helpful and comprehensive submissions sets out the maximum penalty and submissions as to fact finding. There are agreed facts before the court and those are the facts on which the offender is to be sentenced. Extensive submissions were made as to the seriousness of the matters. Those submissions were considered earlier in these remarks when dealing that issue. I agree that the offending does not form part of a course of conduct.
The personal circumstances of the victim have been dealt with when dealing with the victim impact statement. I have set out in some detail the use that can be made of the victim impact statements. I note that Mr Swaine refers to the decision in Tuala.
I have already found that the offender is remorseful and contrite. Section 16A(2)(fa) is not a consideration in this matter. I indicated at the beginning of the remarks that I would allow a numerical discount for the plea, taking into account the utilitarian value of plea of 25%, which was indicated at the sentence hearing. I did not understand either party to dissent from that suggestion. I agree that personal deterrence has little work to do in this sentencing exercise. I have dealt with the issue of general deterrence at some length. I note the provision of s 16A(2)(k) requiring the offender to be adequately punished for the offence.
I have dealt in some detail with the character antecedents, age, means and physical or mental condition of the offender. In that regard I note s 16A(2)(m) of the Crimes Act 1914 (Cth). I accept that the offender has been compliant with bail conditions. I understood that that submission was directed towards a submission that the court can have some confidence that the offender will comply with any order of conditional liberty.
Given the offender's evidence, the fact he now appears to have insight into his offending, the contrition he has shown and lack of prior record I am prepared to find on balance that the offender is unlikely to re-offend. I am prepared to make this finding for those reasons despite the opinions expressed by the psychologists that the offender is at average risk of re-offending.
The offender was, prior to bail being revoked at the conclusion of the sentence hearing, consulting a treating psychologist Dr Blake. Given the offender's evidence at the sentence hearing I am satisfied that he has some insight into his offending. He accepts he will need supervision and he accepts that he will need to do something about his alcohol abuse issues upon release. For those reasons together with the reasons for finding that the offender is unlikely to reoffend I am also prepared to find on balance with some little hesitation that the offender has good prospects of rehabilitation. The hesitation I have is that the offender will need to engage appropriately on his release and accept and participate in the counselling and assistance arranged for him.
Further on the issue of rehabilitation I note the provisions of s 16A(2AAA) of the Crimes Act, which relevantly provides: (2AAA) In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court: (a) when making an order-to impose any conditions about rehabilitation or treatment options; (b) in determining the length of any sentence or non-parole period-to include sufficient time for the person to undertake a rehabilitation program.
Sub paragraph (b) is taken care of by my earlier comments on the need for supervision and the ratio between the total sentence and the period in actual custody. I will make a recommendation that the offender participate in the relevant programmes.
Mr Swaine submitted - at least as I understood the submission - that some consideration be extended to the offender by reason of s 16A(2)(p) of the Crimes Act. Relatives of the offender work at the Junee Correctional Centre and this it was submitted will make it difficult for the offender's mother to visit the offender. At the present time the COVID-19 pandemic means that really no face to face visits are occurring.
As I understand the manner that s 16A(2)(p) has been interpreted going back at least to the decision in Hinton [2002] NSWCCA 405 that the section should be read as including the words "in an exceptional case" before the word probable. More recently there is the decision of R v Zerafa [2013] NSWCCA 222. While the lack of visits is something that can be taken into account by reason of the pandemic - see Valentine v R [2020] NSWCCA 116 at [59]-[62] - this issue does not in my opinion amount to anything exceptional that would enliven s 16A(2)(p) in favour of the offender.
The offender did co-operate with police. Initially he declined to say anything but shortly after being taken into custody he requested a further interview and made substantial admissions. The offender is entitled to some consideration pursuant to s 16A(2)(h) of the Crimes Act.
Mr Swaine submitted that the sentence should comprise of a short period in actual custody with release on a recognizance release order. The effect of this submission is that the total sentence would be 3 years or less.
The Commonwealth submitted that there should be a sentence of immediate imprisonment with a non-parole period. The effect of this submission is that the sentence would exceed 3 years. That submission does not at least superficially appear to sit comfortably with the decision of the High Court of Australia in Barbaro & Zirilli v The Queen [2014] HCA 2.
Further, the Commonwealth submitted that the maximum penalty of 15 years imprisonment is an indication of how serious the Parliament views the offending. The Court was reminded of the provisions of s 16A(2AA) of the Crimes Act, which has been set out above.
In the written submissions, the Commonwealth puts a number of matters that are said to inform the seriousness of the matters. I have dealt with those at some length earlier in these reasons. I have also dealt at some length with the nature and circumstances of the offending and the circumstances of the offender.
I agree with the submission of the Commonwealth that intoxication of the offender cannot be a factor in mitigation. I note at paragraphs 37 and 38 of the written submissions a number of cases are footnoted. There is also the decision of the New South Wales Court of Criminal Appeal in Bourke v R [2010] NSWCCA 22.

[13]

Other cases

I have been referred to a number of decisions of intermediate appellate courts, namely: R v Fuller [2010] NSWCCA 192; McNeice v The Queen [2018] VSCA 186; R v Poynder (2007) 171 A Crim R 544; R v Gajjar (2008) 192 A Crim R 76; and R v Hiznikov (2008) 192 A Crim R 69.
Mr Swaine has also referred me to the decision of my colleague Weinstein SC DCJ in R v McKeay [2020] NSWDC 408.
The respondent to the Crown appeal in Fuller was an ordained priest who was charged with an offence contrary to s 474.16(1) of the Criminal Code. The victim was a 13 year old girl but was an assumed online identity. The respondent arranged to meet the girl. There were 13 on line communications of varying length and content. At first instance the respondent was sentenced to imprisonment for a fixed term of 6 months. On appeal a total sentence of 18 months was imposed with release after 6 months on a recognizance.
McNiece v The Queen involved Commonwealth and state offending. The decision is from a single judge of the Court of Appeal refusing leave to appeal. A total effective sentence of 4 years 10 months with a non-parole period 2 years and 2 months was imposed in respect of a total of 9 charges including three charges of Use Carriage Service to Solicit Child Pornography, three charges of Use Carriage Service to Transmit Indecent Communication, one charge of Procure child to Engage in Sexual Activity outside Australia, one charge of Use Carriage Service to Procure a Person under 16 years for Sexual Activity and one charge of Possession of Child Pornography, the latter being the state offence.
Poynder is an authority going back some 14 years to 2007. The offender (i.e. the respondent to a Crown appeal) was charged with two offences, one being a procuring offence. The offender was sentenced to a sentence of 3 years imprisonment with release on a recognizance release order after 1 year 3 months. One of the offences involved the making of 540 calls. The offender used a telephone chat line and spoke to one male who he believed was 15 and a female who told the offender she was 15. The offender was 50 years of age of prior good character and had been a legal practitioner. At [49] it was observed that in neither offence had there been a process of online "grooming". A number of other sentencing decisions are considered at [58]ff. I note that Rothman J in additional comments said at [97]: "In the particular instance with which Judge Norrish QC was dealing, the offender was committing the offence on a telephone service which overtly encouraged sexual discussion and fantasy, if not more. That fact is, it seems to me, far more relevant as one of the criteria by which a sentencing judge would determine the criminal culpability of the offender. If, for example, the offence were committed on persons who were not voluntarily engaged in sexual discussions, the criminal culpability would be much worse."
R v Gajjar is one of the authorities for the proposition that general deterrence is of paramount importance. I have already dealt with a number of authorities on that issue. The offender was sentenced to a total term of imprisonment of 2 years 6 months with release on recognizance after 8 months. The offender was 28 years of age and pleaded guilty to one count of Procuring contrary to s 474.26(1) of the Criminal Code. The communications were with an on line identity who purported to be 14 years of age. A meeting was arranged and the offender attended the meeting point. The appeal was dismissed.
DPP (Cth) v Hizhnikov was as the citation suggests a Crown appeal. The offender pleaded guilty to a Procuring offence contrary to s 474.26(1) of the Criminal Code and was sentenced at first instance to a suspended sentence for 22 months on entering a recognizance to be of good behaviour for 4 years. It seems that the offender communicated with the same on line identity as did Gajjar. The on line identity purported to be 14 years of age. The offender was 25 and had no prior convictions. The Court (Maxwell P, Nettle JA (as his Honour then was) and Weinberg JA) said at [28]: "Had we been sentencing the respondent, he would almost certainly have been required to serve a term of actual imprisonment. In that sense we accept the Crown's submission that a wholly suspended term of imprisonment was grossly inadequate in the circumstances of this case…"
The offender in McKeay was sentenced in respect of one count of Use Carriage Service to Procure person under 16 for sexual activity contrary to s 474.26(1) of the Criminal Code and one count of Possess Child Abuse Material contrary to the Crimes Act, 1900 (NSW). There were multiple exchanges between an online identity purporting to be a 14 year old girl and the offender over a period of 13 days. Some of the exchanges were very sexually explicit. The offender was 33 years of age and of prior good character. There was a plea of guilty. His Honour Judge Weinstein SC found a number of matters favourable to the offender (see [33]). The offender was sentenced to a total sentence of 2 years 3 months with a release on recognizance after 1 year 3 months. The offence of Possess Child Abuse Material was dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act (NSW).
The Commonwealth was provided a table of what are said to be comparative sentences. Some of those decisions have already been considered. I note that in the matter of R v Kebriti [2019] VSCA 275 the offender was sentenced in respect of Procure offence contrary to s 474.26(1) of the Criminal Code and a charge of Use Carriage Service to Transmit Indecent Material contrary to s 474.27A(1) of the Criminal Code. The Procure charge involved the offender arranging to meet the victim who was 11 but the offender was believed to be 12. It also involved arranging for the victim to attend the offender's home after the meeting. The Transmit offence involved the offender sending two images of his erect penis to the victim. The Procure offence occurred over a period of 40 minutes and was highly sexualised. The sentence of 4 years with a non-parole period of 2 years 3 months was found to be in range. I infer from the table that there was a plea of not guilty and the matter was defended. There was no remorse.
With respect to the advocates, while these authorities are of some limited utility they are not particularly helpful in assisting to determine an appropriate starting point for the sentence in this matter. The matters to which I have been referred are very factually different and involve older victims but different offending.

DPP (Cth) v HALBISCH

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