R v Abbott

Submissions

1. A number of Crimes Act 1914 (Cth) provisions must be taken into account here. I thank the Commonwealth Director of Public Prosecutions for their statement of general principles provided and the specific references made in the detailed submissions of Mr El Hage, Solicitor. I thank Mr Howell, counsel for Abbott, for his comprehensive responses.
2. In this matter, the facts of which I will shortly refer to, the Commonwealth concede no actual children were victimised by the offending but place considerable emphasis on the difficulty of detecting these offences, offences that can be committed with relative ease. This they submit is another reason for giving great weight to principles relating to general deterrence: R v Fuller [2010] NSWCCA 192 at [26].
3. They submit that only a full-time gaol sentence is appropriate in all the circumstances. They refer me to s 16A(1) and s16A(2)(k) Crimes Act. In their submission, to do otherwise than imprison Abbott would render nugatory the purposes of sentencing relating to; accountability, deterrence, denunciation and acknowledgment of the harm done by offences such as this. While they accept that the facts here reveal an offence that falls at or below the mid‑range of objective seriousness, they submit that option is the only one available.
4. Mr Howell asked that I focus my attention on the specific provision to which the plea of guilty was entered. The section speaks of an intention of making it easier to procure the recipient to engage in sexual activity with himself. It is noted that a range of matters covered by this offence may not be generally as serious as for other offending, which justify sentences reflecting the maximum penalty available. He notes that this was, on all the facts before me, an isolated and aberrant offence by a person of otherwise good character with excellent prospects for rehabilitation. He also submits that this case reflects an uncommon combination of both objective factors and subjective factors that make it; out of the ordinary, unusual, special, and therefore exceptional.
5. Mr Howell submits that while imprisonment is, given all the material before me, the only option, there remains the option of allowing the offender immediate release. He referred me to Judge Buscombe's decision of R (Commonwealth) v Nafarette [2022] NSWDC 225.

The guilty plea

1. The offender's guilty plea had utilitarian value. There was also, from the outset, co‑operation with the course of justice. The offender was co‑operative and made partial admissions on arrest. From the outset he showed remorse. This is supported by material before me.
2. The Director concedes the plea was entered at the earliest opportunity and that there is evidence of remorse and contrition. When I synthesise all relevant matters I give full weight to the plea, this extends beyond its purely utilitarian value.
3. For transparency's sake, and in accordance with the advice of the Court of Criminal Appeal in Xiao v R [2018] NSWCCA 4 at [269] to [278]. I will reduce the otherwise appropriate sentence by 25% to reflect the utilitarian value of the plea. Other values will be synthesised in my determination of the appropriate sentence.

Agreed facts

1. There are agreed facts before the Court, they are comprehensive. What follows is a summary.
2. A proactive investigation was being carried out by police on a chat website. Police officers were utilising the assumed identity of a 14-year-old female. That assumed online identity (AOI) received a message from Abbott utilising his nom de plume or username.
3. From the outset the AOI, said that she was in Year 9 at school and was new to the chat group. The offender suggested to her that they could muck around in a car or something that she would be comfortable with. By "muck around" he later explained he meant kiss or have sex. He made some suggestions as to the type of sexual intercourse that he had in mind and how he could teach her or only kiss her if that was fine with her.
4. He requested a photo. She responded as if she was a child who was being monitored by her mother. The offender told her that he was "nervous" and questioned whether she was "definitely real".
5. He then progressed the communications to another online chat service. He requested photographs. He asked for a photograph without a shirt. He also requested that all trace of the earlier conversation be wiped.
6. The conversation was restarted that night. He sent a photograph of himself clothed. He again asked for an "interesting" photograph with no shirt.
7. There the conversation continued. He talked about and advised her in relation to masturbation.
8. The conversation resumed the following day, 4 February 2022. A suggestion was made she watch porn and masturbate. A request was made to delete the conversation. An image was sent by the AOI and received by the offender.
9. On 6 February 2022, Abbott commenced a conversation with asking, "Free to get out of the house for a bit this morning?" A response came from the AOI eight hours later, by which time it appears that the offender had had some second thoughts. His comments include, "I don't think we'd be able to make it work", and he was not "going to be around." He ended the conversation asking that she promise to delete the conversation. Following the conversation, no further messages were exchanged.

Objective seriousness

1. In any sentencing exercise it is necessary to make an assessment of the objective seriousness or gravity of the offence. It is common in New South Wales, at least for parties, and here the Commonwealth, to suggest a judge use labels that nominate a point at where an offence lies on the hypothetical range. I fall into the class of judges that find difficulty in labelling something which does not have inherent meaning. Such labels do not add to the public's, or my understanding, of the gravity of the offending. I prefer to focus on the particulars of the case, an approach which is at last receiving recognition by appellate courts, see for example: R v R E [2023] NSWCCA 184 at [35].
2. There are no prescribed set of descriptors that must accompany an assessment of objective gravity. I trust that matters critical to that assessment will be readily apparent in this judgment. Here, critically are a number of factors that must be considered: 1. The offending involves six conversations over three days. 2. There was an undercover officer posing as a 14-year-old. 3. The offender, despite some reticence, believed that he was talking with a 14-year-old in Year 9 and thus immature. This was confirmed to him by the picture that was sent. 4. The content of the conversations was explicit and included: 1. Requests for intimate photographs; 2. Masturbation instructions; 3. Discussions about the possibility of engaging in sexual activity; 4. Suggestion she watch pornography. 1. The offender did terminate the contact. 2. There was no sophistication in his behaviour. He was not pretending he was someone he was not. 3. There is no pattern of behaviour as revealed by an analysis of the other electronic devices.
3. That all said, the clear import of the conversations was that he engaged in them for his sexual gratification.
4. Mention was made in the Commonwealth's submissions that this offence involved grooming. Grooming is a very broad term or label. This matter lacked many of the aggravating features which commonly attract that epithet. There was no bombardment with indecent suggestions. There was no sending of graphic sexual images or gross interference with the child's privacy, nor was there an abuse of power or the formulation of some destructive relationship. There was no attempt to manipulate the presumed child in the internet exchanges.
5. The absence of common aggravating features is important when it comes to assess the level of seriousness of this matter. For example, in R v Asplund [2010] NSWCCA 316 at [48] the presence of such aggravating features led to a conclusion that that matter involved a high level of criminality.
6. Absence of aggravating factors does not mitigate. This was still a serious offence; it requires a custodial sentence be imposed. So much is conceded by the defence. Given the range of matters that could be dealt with by the section it is at a lower level of what are all serious offences.

Record

1. The offender has no prior criminal history but in matters such as this, that often has less weight. Often the seriousness of the offence can outweigh personal circumstances, even in the case of a first offender: DPP v Smith [2010] VSCA 215.

Subjective case

1. Although the offender did not give evidence, his subjective case is relatively uncontroversial. It is supported by psychological reports and many detailed references from people who know him well; his family, his partner, his employer. They go to Abbott's personality, character and background.
2. It is uncontroversial that he is a father who lives with his second partner and supports and provides for his children. He is the main provider for his family and his children. His current relationship is, despite the commission of this offence, stable. Publicity has impacted on his extended family and children; they have been forced to experience his shame.

Sentence Assessment Report

1. A Sentence Assessment Report (SAR) confirms the other material before me, particularly his full-time employment and supportive family. In the SAR he makes statements about his internet use, which may be regarded as showing insufficient or full insight into the extent of his offending behaviour, but he is willing to engage in treatment programs. The specialist report attached to the SAR indicates that he would be ineligible for community or custody-based programs. The supervision plan proposed does not seem to require it.
2. The overall impression I get from the reports from Community Corrections is that this offender would be a low priority for intervention given that there are people who require those services and resources more than him.

Psychological reports

1. I have the benefit of reports from two psychologists, Dr Doran and Mr Randall.
2. Dr Doran provided a comprehensive forensic report, which set out his reported testing results. I do not believe that he simply parroted matters that fell from the offender. Rather, he applied his training experience to the test results.
3. I also have the benefit of two reports from his treating psychologist, Mr Randall. He initially diagnosed a Depressive Disorder. He states that after extensive treatment Abbott is responding well. He has continued with that treatment up until today. He has had considerable success in dealing with a number of underlying problems and conditions. It is not suggested that those underlying conditions in any way contributed to the commission of this offence. It is however suggested, that if they are dealt with that the chance of reoffending would be reduced.
4. Dr Doran indicates that there is no evidence of any paedophilic or hebephiliac interest by the offender. He notes appropriate shame and that Abbott's pre‑existing depression may have led to poor decision making and reduced consequential thinking. Dr Doran concludes Abbott has made considerable progress in the community. He has shown some insight as he has received assistance from a psychologist and that treatment is offence focused. He notes the offender has a supportive family network, pro‑social peers and a strong employment history. He says there are very few risk factors, but many pro‑social protective factors. He also notes that the risk factors are being addressed.

References

1. The references all show to the strong support Abbott has had. He had, until the commission of this offence, lived a blameless life in the community. He was respected. His family are respected. He has worked, he has provided for his family. He has had adverse events in his life, particularly the breakup of a relationship, that would have caused anyone distress, but he now has a new partner. He has made arrangements for his children. He has accepted responsibility for his action and shown, I find, genuine shame and remorse for the harm he has caused his family. But they have effectively forgiven him.
2. All the material reflects that the conclusion that this was an aberrant incident in an otherwise pro-social life.
3. The Commonwealth suggested that, given that the preconditions for his offending might be repeated, I have to be guarded of his risks of offending in the future. But I am prepared to accept that his arrest, his time on bail, his shame, his treatment, mean that it is very unlikely that he would ever offend again, given the protective factors that are now in place. As was noted by Dr Doran at pars 76 and 79 of his report. I accept Dr Doran's conclusion at par 72 that his chance of reoffending is low.
4. Abbott's rehabilitation is well underway. It would be impeded by a period of custody as it is unlikely he would receive treatment during that time. The most recent report from Mr Randall indicates that Abbott has, as best he can, been preparing himself for a period of custody and that the supports that he has would continue and resume on his release.
5. I have received a number of other cases from the defence; Rzeminski, R v Pederson [2021] NSWDC 535; R v Finch [2022] NSWDC 578; and Bajracharya [2022] ACTSC 276. The Commonwealth attached a table of other cases to their submissions.
6. The consistent application of principle must always be considered, and the guidance offered by appellate courts and other decisions is always welcome, but each case and each offender are individual. Sentencing is a discretionary judgment. The mix of facts that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74].
7. I note that the options available to a court are either full time custody or release subject to a recognisance. In matters such as this there is no option of imposing an Intensive Correction Order: s 67(2) Crimes (Sentencing Procedure) Act 1999 (NSW).

Synthesis

1. I have had regard to and sought to address s 16A and other related provisions of the Crimes Act. Having considered s 17A Crimes Act I formed a view, which is not in dispute, that a custodial sentence has to be imposed. It does not need to be a lengthy custodial sentence, but it must be of a length sufficient to reinforce specific deterrence and meet the purposes of sentencing relating to denunciation and retribution. By those terms I mean that others in the community have to understand that if they behave as Abbott did, they risk a custodial sentence and they should think and think again before they engage in any form of sexualised communication using a carriage service, such as the internet, or other such services.
2. The sentence, given all the material before me, would be significantly less than 3 years. The real issue remains, as it was at the outset, is when I fix the Recognizance Release Order. That requires a close consideration of the important provisions, in particular s 16A(2)(2AAA) Crimes Act, and the presumption that once a period of full-time custody is to be imposed there must be a period of custody absent exceptional circumstances: s 21B(ii)(iii) Crimes Act.
3. The intention of Parliament as reflected in the maximum penalties and the legislative interventions from 2020 reflect earlier decisions of appellate courts that while a sentencing court have a discretionary power as to whether a custodial penalty is to be imposed, I cannot direct immediate release unless certain criteria are met; here, that is the criteria of exceptional circumstances.
4. The term "exceptional circumstances" was not defined or described by the legislature. This as McCallum J noted in R v Bajracharya [2022] ACTSC 276 does not undermine the breadth of the sentencing discretion of individual judges. But the principles which were developed, and have been continually developed, by the Courts of Criminal Appeal across the country, for all these matters and matters of similar weight involving child pornography, indicate that prior good character and positive personal antecedents are relative common place among such offenders and that significant weight should be given to general deterrence with corresponding less weight to matters personal to the offender.
5. Undue focus should not be placed upon the fact, that is a common feature, for the defence to tender material indicating that an offender has gone to counselling and received assistance with their rehabilitation. While this aspect is important it should not be at the expense of other legitimate sentencing considerations, including denunciation and general deterrence. A summary of such matters was provided in the child pornography case of R v Porte [2015] NSWCCA 174 at [51] to [81].
6. Sentencing courts have an obligation to express to the community disapproval of the offending. Sentencing courts also have an obligation to protect the community from future offending, in particular, to prevent offending against the vulnerable from repetition of the type of offending by others: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 [52] to [58].
7. I am quite confident that this offender will not reoffend again but the stress that has to be placed on principles of denunciation and general deterrence reflect the harm that these offences cause individuals and the community. As I said, the community has to understand that they cannot behave as Abbott did.
8. Ultimately my duty as a sentencing judge requires an attempt to translate the complexity of the human condition and human behaviour to the mathematics of punishment: Weininger v The Queen (2003) 212 CLR 629 at [24].
9. Denunciation, I believe, can be achieved by imposing a custodial sentence, even if no gaol time is served. Specific deterrence can be met by a custodial sentence with a lengthy recognizance to be of good behaviour even if no gaol term is served. I am then left with the three highly relevant considerations; of general deterrence and rehabilitation and restoration to the community.
10. There is no hierarchy of these considerations, but the persuasive power of appellate decisions must be given considerable weight. Where highly relevant considerations are totally incompatible, as the ones noted here, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative: Hopkins v R [2004] NSWCCA 105 at [22]. This requires consideration of the term 'exceptional circumstances':
11. I must consider the statutory context. I considered the helpful citation from the Queensland Court of Appeal in Tootell v R [2012] QCA 273 at [18], taken from R v Kelly [1999] UKHL 4; [2000] 1 QB 198 at [208]: "We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."
12. I note the helpful definition provided by Judge Buscombe in Nafarette: "In my opinion, the word, "exceptional", in the statutory context means out of the ordinary course or unusual or special or uncommon. Circumstances do not have to be unique, unprecedented or very rare, but cannot be circumstances that are regularly or routinely or normally encountered to meet the requirement of the provision. A combination of factors, in my opinion, can amount to exceptional circumstances."
13. I remind myself that the word 'exceptional' is a stringent requirement: Re Zoudi (2006) 14 VR 580 at [589]; [2006] VSCA 298 at [28(5)]. While a stringent requirement, it is not an impossible one. In my view, the following factors make this matter exceptional. Those matters relate to the objective and subjective factors before me: 1. I note firstly, the offender is otherwise an outstanding member of the community; 2. I note my finding that this was at the lower level of still very serious offending; 3. I note the brief period over which the offending occurred; 4. There is no indication that this was a pattern of otherwise unlawful activity; 5. I note the voluntary cessation of his interaction with the assumed identity presumed to be a 14-year-old; 6. I note the very strong pro-social supports; 7. I note my conclusion this was an aberrant, but seriously criminal, blemish on an otherwise blameworthy life; 8. I note that there are solid proactive actions being taken and are underway to ensure that it will not occur in the future; 9. I note Abbott and his family's public humiliation; and 10. I note that he is a parent and provider. I do not underestimate the impact gaoling a parent can have on children: s 16A(2)(p) Crimes Act; Totaan v R [2022] NSWCCA 75.

Orders of the Court

1. In relation to the matter before the Court you are convicted. Taking into account the utilitarian value of the plea alone in this matter there will be a sentence of 1 year and 6 months.
2. The formal orders are you are convicted and sentenced to a term of imprisonment of 1 year and 6 months without hard labour. That sentence is to commence today and expire on 17 February 2025. I direct you be released today on entering into a recognizance, that is a promise pursuant to s 21B Crimes Act to be of good behaviour, yourself in the sum of $400 without surety.
3. The terms of the recognizance are that you are to be of good behaviour for a period of 3 years from today. You are to appear to receive sentence if called upon to do so at any time in respect of any breach within the said period. You are to accept the supervision and guidance of an officer of Community Corrections New South Wales for 12 months or as long as they deem necessary. You are to report to the Wollongong Community Corrections office within 7 days. You are to accept and comply with a Community Corrections supervision plan and you are to continue with psychological treatment.
4. There are standard conditions that apply in matters such as this pursuant to s 21B Crimes Act: 1. You will be subject to supervision, and you must obey their reasonable directions; 2. You are not to travel interstate or overseas without the written permission of the probation officer; 3. You will undertake such treatment of rehabilitation programs as they reasonably direct.
5. I advise you that you will be subject to a child prohibition order. I can tell you from experience that the officers that enforce such orders are practive and stringent in their requests and insistence on compliance with the order. If you breach that order, you could go to gaol. If you are not of good behaviour, you will breach your recognizance, your bond, and you can go to gaol. If, however, you keep in contact with your parole officer and maintain your present progress, I doubt if I will ever see you again.
6. I have already made a 23ZD Crimes Act forfeiture order.
7. You will have to enter those orders in the Court office. I thank everyone involved for their assistance and co-operation.

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: 14 November 2023