-P v R

Attorney General's Reference Pursuant to s. 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (Guideline Judgment on Form 1) [2002] NSWCCA 518 Attorney General's Reference Pursuant to s. 37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 (Guideline Judgment on Assault Police) [2002] NSWCCA 515C -P v R [2009] NSWCCA 291 CTM v The Queen [2008] HCA 25Han v R [2009] NSWCCA 300Ibbs v The Queen (1987) 163 CLR 447Kenny v R [2010] NSWCCA 6 Pearce v The Queen (1998) 194 CLR 610 CASES CITED: R v Borkowski [2009] NSWCCA 102 R v Cahyadi [2007] NSWCCA 1 R v Doan (2000) 50 NSWLR 115 R v PGM [2008] NSWCCA 172 R v Ryan (2003) 141 A Crim R 403 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Zamagias [2002] NSWCCA 17

REPRESENTATION: Ms. K. Holloway for the Director of Public Prosecutions Mr. M. Cronin, Solicitor, Messrs. Pogson Cronin, Solicitors for and with Mr Tulk

JUDGMENT 1 On 11 October 2010 the offender pleaded guilty to three counts of Sexual Intercourse with a Person aged Between 14 and 16 years contrary to section 66C(3) of the Crimes Act 1900. In dealing with the first of those charges the offender asks that I take into account two further charges of Sexual Intercourse with a Person aged Between 14 and 16 years and one charge of Incite Person under the age of 16 years to an Act of Indecency. 2 I am satisfied for the purpose of proceeding to sentence that the pleas of guilty were entered at the earliest opportunity, and accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the plea - see for e.g. R v Thomson; R v Houlton (2000) 49 NSWLR 383 and R v Borkowski [2009] NSWCCA 102 at [32]. The Crown did not argue to the contrary.

Facts 3 As is customary in the Local Court of New South Wales the matter proceeded by way of tender of a set of Agreed Facts. For the sake of completeness I will recite those facts: "On Friday 12 April 2010 the complainant BB born 22 November 1994 was interviewed at the Albury Joint Investigative Response Team's (JIRT) office.

During the interview the complainant stated that he initially met the accused David Tulk born 8 July 1961 over the internet chat line "tagged". In the initial contact the complainant indicated that he was in Year 10 of school and the accused admitted he was 40 years of age. The complainant and the accused both exchanged mobile phone numbers.

Between 1 February 2010 and 1 April 2010 the accused and the complainant arranged to meet at the accused's home on two occasions. Sequence 1

On the first occasion the complainant attended the home of the accused where the accused led the complainant to his bedroom. The accused and complainant undressed and laid on the bed. The accused rolled the complainant on to his stomach and inserted his penis into the anus of the complainant where they have had penile/anal intercourse. After a while the accused withdrew his penis from the complainant's anus.

The complainant rolled onto his back and the accused has put his mouth over the complainant's penis. The accused moved his mouth up and down on the complainant's penis. After a while the accused stopped and removed his mouth from the complainant's penis and went to the bathroom to have a shower. Whilst this was occurring the complainant got dressed. The complainant and the accused said the farewells and the complainant returned home.

Approximately one (1) week after the initial incident the accused and complainant have again contacted each other and organised to meet again at the accused's home.

On this occasion the accused led the complainant to the living room area where they have kissed. The accused undid the complainant's shorts, which he removed. The accused put his mouth over the complainant's penis. The accused moved his mouth up and down on the complainant's penis. After a while the accused removed his mouth from the complainant's penis.

The complainant bent down and removed the accused's pants. The complainant placed his mouth over the accused's penis and has moved his mouth up and down on the accused's penis. After a while the complainant removed his mouth from the accused's penis

The accused then led the complainant to his bedroom where they removed their remaining clothes and laid on the bed. The accused then inserted his penis into the anus of the complainant and they had penile/anal intercourse. After a while the accused withdrew his penis from the complainant's anus.

The accused asked the complainant who was lying on the bed to masturbate. The complainant masturbated his own penis and ejaculated in the presence of the accused.

The complainant was asked if he wanted a shower by the accused which he replied he did. The complainant went to the shower and rinsed off. The accused and complainant dressed. The accused dropped the complainant at school.

On Wednesday 14 July 2010 the accused attended Albury Police Station where he was arrested, cautioned and taken to the charge room where he was introduced to the custody manager. The accused was asked if he wished to be interviewed in relation to the incidents, which he declined.

The accused was fingerprinted, photographed and charged with the matters now before the Court. Assessment of the Criminality 4 The gravamen of the offences on which I have to pass sentence is sexual Intercourse with a person between 14 and 16 years. It is implicit in the plea of guilty, given the decision of the High Court of Australia in CTM v The Queen that the accused was at least reckless as to the fact that the complainant was under 16 years of age. The Agreed Facts indicate clearly enough that the offender knew that the complainant was in Year 10 at school. So far as the nature of the sexual activity is concerned Mason CJ, Wilson, Brennan, Toohey and Gaudron JJ said in Ibbs v The Queen 163 CLR 447 at 452: The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum, at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined … 5 Further on this aspect, Fullerton J. giving the leading judgment of the Court of Criminal Appeal in R v PGM [2008] NSWCCA 172 at [26] said: While there is no hierarchy of sexual acts that constitute sexual intercourse for the purposes of the criminal law, it is generally accepted that some forms of sexual activity may be regarded as more serious than others (see Ibbs -v- R (1987) 163 CLR 447). This is of course necessarily modified by the context in which the offence occurred, and other circumstances of the particular offending to which Simpson J referred in AJP at [24]-[26].

6 In the circumstances of the case presently under consideration I am of the opinion that the difference in the sexual acts performed on the complainant by the offender apart from the last matter on the Form 1 Schedule is of little if any consequence. However, in this matter the age difference between the offender and the complainant was 34 years. The complainant was 15. There is no suggestion that the complainant was subject to any coercion. The sexual activity was restricted to two meetings some few weeks apart. Doing the best I can, I am of the opinion that this matter falls below the half-way point on the scale of objective seriousness for matters of this kind that routinely come before the court.

Criminal History 7 It is common ground that the offender is of previous good character. However, given the nature of the charges upon which I have to pass sentence that good character does not have the same weight as it might with some other offences.

Maximum Penalty 8 The maximum penalty for an offence contrary to s. 66C(3) if dealt with on Indictment is 10 years imprisonment. This in itself is indication enough of the seriousness with which the Parliament views this type of offending. The matters on which I have to pass sentence are matters to which the principles enunciated in R v Doan (2000) 50 NSWLR 115 apply. In that case Grove J. in giving the leading judgment (Spigelman CJ and Kirby J. agreeing) in that decision said at [35]: The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a 'worst case'.

9 I also note that the Court of Criminal Appeal (a bench of five) followed and affirmed this matter of general principle in Attorney General's Reference Pursuant to s. 37 of the Crimes (Sentencing Procedure) Act 1999 No. 2 of 2002 (Guideline Judgment in Assault Police Matters) [2002] NSWCCA 515 at [27].

Matters of General Principle 10 Initially, I note that I am being asked to deal with three matters on a Form One Schedule. In respect of the approach to the taken in such matters, Spigelman CJ giving the judgment of the Court of Criminal Appeal in Attorney General's Application under s. 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 [2002] NSWCCA 518 said at [42]: The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another. 11 This approach has been adopted and followed on a number of occasions by the Court of Criminal Appeal including the decision of C-P v R [2009] NSWCCA 291.

12 The offender met the complainant on an Internet "chat room". The irresistible inference is that the offender was trawling such sites in order to meet young men such as the complainant. In Kenny v R [2010] NSWCCA 6 Howie J (Basten JA arriving at the same conclusion but giving separate reasons, Johnson J agreeing with Howie J and the additional comments of Basten JA) said at [36]-[40]:

36 The first ground of appeal refers to comments made by the Judge during the course of his sentencing remarks. The Judge quoted the following passage from my judgment in R v Dagwell [2006] NSWCCA 98: [41]............ The offences of which the respondent has been convicted and the method of procurement of the supposed consent of the complainant are both serious and insidious. Users of Internet chat rooms should be well aware that crimes committed in such circumstances are treated with great concern by the criminal justice system and will be dealt with severely. Children must be protected from themselves and from those who prey on their vulnerability by gaining access to them through means such as that used by the respondent. The only way that this policy can be achieved is by the courts imposing condign punishment upon those convicted of such offences in the hope that others who are minded to act in the same way might fear the consequences if they are caught.

37 His Honour then went on: For that policy to be implemented as stated, sentencing courts must pay particular attention to general deterrence when sentencing offences of sexual intercourse with children in circumstances where that sexual intercourse is procured through the use of the Internet.

To my mind to properly reflect the community's disapproval of this sort of activity and the policy outlined above by the Court of Criminal Appeal, this court is required to impose a sentence of full-time custody with respect to these offences. However it should immediately be acknowledged that the circumstances of this case are not on all fours with that in [Dagwell]. In that case the offences to which the offender pleaded guilty were more serious charges carrying a lengthier maximum penalty. The girl involved there was 13 years old, whereas in this case the complainant was 15. In [Dagwell] the court was dealing with a case involving two distinct occasions of intercourse, whereas here the offender had sex with the complainant admittedly in a number of different ways on the one occasion. 38 The submission made on behalf of the applicant is as follows. The agreed statement of facts was based upon the proposition that the applicant had a belief, albeit an unreasonable one, that the complainant was 16 years of age. The Internet was not being used to prey upon the vulnerability of the complainant arising from the fact that she was under the age of consent because the applicant believed, unreasonably, that she was over the age of consent. Therefore, the use of the Internet was not a relevant factor. 39 I am unable to accept the argument. The applicant, aged 33, entered a chat room designed for persons between the ages of 15 and 18. There was a substantial risk, therefore, that one or more of the participants would be under the age of 16. The applicant was clearly seeking out a young person for the purposes of sexual activity. He was told that the complainant was aged 15, although the agreed facts indicated that he had forgotten that communication. Presumably this was part of the reason why he accepted that his belief that she was aged 16 was unreasonable. 40 By his use of the Internet the applicant developed the relationship with the child and it was always a risk that she might misstate her age. If a person uses the Internet to both meet and then groom a person for sexual purposes, general deterrence applies if, as a result, he has intercourse with an under-aged child in circumstances that amount to a criminal offence. I do not see why the courts should not discourage such conduct. I see no error in what the sentencing judge said in this regard.

13 The matters presently under consideration are however, different to the situation in Kenny as the "chat room" in that case had a specific demographic of persons of the complainant's age. The "chat room" that the offender was using in the matters on which I have to pass sentence apparently had a more general audience. I could not be satisfied to the requisite standard that there was the planning that was present in the matter of Kenny.

14 There could be little doubt on the facts on which I have to pass sentence in this matter that the complainant was a willing participant in the sexual activity. The fact remains, however, he was under the age of consent. With unfeigned respect I echo the words of His Honour Judge Blackmore SC, the learned judge at first instance in Kenny that children must be protected from themselves (see [36] of CCA decision, [41] of ROS). On the material with which I have been provided I am satisfied that there is no substantial emotional harm to the complainant.

Pre Sentence Report 15 A comprehensive Pre Sentence Report prepared by the Albury Office of the Probation and Parole Service assists me. I have no difficulty in accepting the contents of that Report. The offender recently resigned from employment with the Taxation Office, he having been in such employment for 24 years. He is currently employed with a motor repair business, and that employment will be open to the offender upon release if a custodial sentence is imposed. To the significant credit of the offender he made no attempt to "abrogate his responsibilities as an adult undertaking these activities". The offender is 49 years of age and lives with a long-term partner and a teenage son. The Report maintains, and I accept that the offender is genuinely remorseful.

16 The Report assesses the offender as being a "low risk of re-offence", and accordingly, supervision is seen as unnecessary.

17 The offender is suitable for Community Service. However, despite his being assessed as suitable, I am of the opinion that such a disposition would be manifestly inadequate.

Psychological Report 18 On 29 November 2010 at a mention of this matter before me, Mr. Cronin on behalf of the offender handed up without objection a report prepared by Dr. Susette Sowden, Clinical Psychologist. Dr. Sowden reports that the offender took full responsibility for his criminal behaviour and expresses genuine remorse.

19 However, at p. 4 of the report, Dr. Sowden notes: Mr. Tulk said he met the victim on line in a chat room. Mr. Tulk said he portrayed himself as being younger than he was, with the victim not appearing to be phased by the report that he was 40 years of age. The victim seemed to want to persist with the sexualised on line discussions. Mr. Tulk said he met with the victim on two occasions during which the sexual activity occurred. He said the victim's mother reported the activities three to four weeks later.

20 Whether or not the victim wanted to persist with the sexualised discussions rather overlooks the fact that the offender was aware from a very early stage that the complainant was in Year 10 at school.

21 In the course of giving the offender's family and personal history Dr. Sowden noted that the offender lost his father to cancer when the offender was 21. The offender has a difficult relationship with his mother, and he "never felt good enough" for his mother. The offender married in 1982 and his wife remains supportive of him.

22 The report gives an account of the offender's older sister initiating oral sex with him when he was 12. There could be little doubt that this would have had a profound effect on the offender.

23 There is no history of inappropriate use of alcohol or drugs.

24 Dr. Sowden administered a battery of tests. She opines (p. 7 of the Report) that the offending behaviour has its psychogenesis in the offender's disturbed attachment with his mother and incest with his sister. She further opines that the offender is genuinely remorseful and has responded well to treatment. Dr. Sowden is of the opinion that the offender "has a moderate risk of sexual recidivism in relation to his static (historical) risk factors, although his stable and acute risk of sexual recidivism is considered to be in the low range. On the basis that he continues with appropriate therapeutic intervention, and in the light of his remorse and his insight into his offending his likelihood of reoffending is considered to be low". There is no reason not to accept the conclusions of Dr. Sowden.

Subjective matters put in mitigation 25 I am indebted to Mr. Cronin for a very helpful and comprehensive plea in mitigation. Initially there were submissions as to how the matter came to be reported to police. Apparently email entries were observed. It was put and I accept that the actions of the complainant were at all times voluntary. It was put and I accept that there was no breach of trust. The issue of the chat room was then raised. I accept that the chat room the offender was using had a more general demographic than was the case in Kenny. It was submitted that the offender was reckless as to the age of the complainant, but that he was aware that the complainant was in Year 10 at school. I note that in this regard the facts indicate that after one of the meetings the offender dropped the complainant off at school. The significant difference in age between the offender and the complainant was appropriately acknowledged.

26 The offender is 49 years of age and has been married for 30 years. His wife and children are still supportive of him. I observe that he is very fortunate to have this family support. He left school in Year 11 and served in the Army for some time. He worked at the Australian Taxation Office in Albury for many years, and only resigned from that employment when the offences on which I am passing sentence were reported. He has gained other employment. I note that there is a reference from his current employer with the papers. I also note that the offender's current employer will re-employ the offender upon his release.

27 I accept that the offender has made a significant contribution to the community through sporting clubs and other community involvement. He was responsible for raising a considerable amount of funds for the Cystic Fibrosis Foundation. Mr. Cronin submitted, correctly, that because of these matters the offender will not be able to pursue many of those interests.

28 It was put and I accept that the offender is genuinely remorseful. There is ample material in the Pre Sentence Report and the Report of Dr. Sowden to ground that submission. I also accept that the offender has insight into his offending.

29 Mr. Cronin went on to highlight a number of matters contained in Dr. Sowden's Report, but in particular the conclusion that the offender has a low risk of reoffending. I accept that there are good prospects of rehabilitation.

30 It was ultimately accepted that no other sentence that custody was appropriate. However, it was strongly urged on me that given the prior good character of the offender and the very strong subjective case it would be appropriate to suspend the sentence imposed. Mr. Cronin correctly submitted that the "starting point" of the sentence would be well within the Court's jurisdictional limit. That submission is made good.

Crown's submissions 31 The Crown's representative began by reciting from the Record of Interview given by the complainant. With respect this should not have occurred - see for e.g. R v Palu (2002) 134 A Crim R 174. I made it clear in the course of submissions I would ignore what was put in this regard.

32 The Crown appropriate conceded that the matter fell below the mid-point of objective seriousness. The Crown submitted that the sentence should not be suspended.

33 The Crown appropriately conceded that the offender was entitled to the full 25% discount for the utilitarian value of the plea.

34 The Crown also submitted that there should be some partial cumulation given that the offending occurred over two different meetings. I indicated at the time of submissions, and remain of the opinion that this is an appropriate case to impose concurrent sentences.

Statistics 35 I have had recourse to the statistics kept by the Judicial Commission. Of a sample of 44 matters of this type dealt with by the Local Court, 5 received dispositions pursuant to s. 10, 12 were dealt with by s. 9 bond, 14 were dealt with by way of suspended sentence and 13 dealt with by full time custody. Of those 13 sentences, the terms ranged between 7 and 20 months imprisonment, with 6 matters having a sentence of 12 months imprisonment imposed.

36 Of course, I caution myself about the use of statistics that they provide indications of general sentencing trends and standards and assist in assuring consistency - see R v Ryan (2003) 141 A Crim R 403 at 411 and Han v R [2009] NSWCCA 300.

37 For what they are worth those statistics are annexed to these remarks. I merely observe that the Court in Kenny was dealing with two counts contrary to s. 66C(3) and two similar matters and an Aggravated Indecent Assault on a Form 1 Schedule with the plea being entered during the course of a trial after the complainant had given evidence. The sentence imposed was a non-parole of 1 year 3 months and a balance of term of 9 months. The Court of Criminal Appeal did not interfere with that sentence.

General Remarks 38 I am obliged to give proper regard and effect to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. It is inappropriate for this or any other Court to impose any sentence of imprisonment unless that court first comes to the conclusion that no other sentence other than a sentence of custody is appropriate. In all of the circumstances of the matter presently under consideration, I am firmly of the opinion that no other sentence other than a sentence of custody is appropriate.

39 That conclusion having been reached, the next issue to be determined is the manner in which the sentence is to be served. In R v Zamagias [2002] NSWCCA 17 at [32] Howie J in giving the judgment of the Court said: The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate". 40 In the matter presently under consideration, I am of the opinion that it is not appropriate to suspend the sentence because of the issues of the need for general deterrence, taken with the criminality in the matter.

41 Further, I am obliged to give effect to the decision of the High Court of Australia in Pearce v The Queen (1998) 194 CLR 610 and impose an appropriate sentence in respect of each matter and then consider the issue of totality and cumulation or partial cumulation. The principle relating to sentencing for multiple offending was explained in Cahyadi v R [2007] NSWCCA 1 at [27] as follows: "27…there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is no regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both".

42 In the matter presently under consideration the offending on the two occasions was very close in time. I am satisfied that in all the circumstances of the present matter the sentence for one offence can reflect the criminality of the other two charges on which I have to pass sentence, and accordingly, I will impose wholly concurrent sentences.

43 I am of the opinion in this matter that there are special circumstances within the meaning of s. 44 of the Crimes (Sentencing Procedure) Act 1999. The offender is middle aged, and this is his first time in custody. Incidentally, I note that it is also his first time before a Court. The offender will need supervision and treatment in order to ensure that there is no re-offending.

44 In all of the circumstances, taking all of the matters to which I have referred into account I am of the opinion that the starting point for the sentence in this matter is in the vicinity of 18 months from which I will deduct the 25% discount for the utilitarian value of the plea, and round down in favour of the offender.

Formal Orders 45 In respect of each of the matters to which the offender has pleaded guilty he is convicted. Consequent upon those convictions I impose the following sentences: In respect of Sequence 1: Taking into account the three matters on the form one document, you are sentenced to a non-parole period of six months to commence on 14 December 2010 and to expire on 13 June 2011. Thereafter, I specify a balance of term of 7 months to commence on 14 June 2011 and to expire on 12 January 2012. Parole is to be supervised.

Gordon Lerve Magistrate Albury Local Court 13 December 2010

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