Asplund v R [2010] NSWCCA 316
Hutchinson v R [2018] NSWCCA 152
Tector v R [2008] NSWCCA 151
Source
Original judgment source is linked above.
Catchwords
Asplund v R [2010] NSWCCA 316
Hutchinson v R [2018] NSWCCA 152
Tector v R [2008] NSWCCA 151
Judgment (11 paragraphs)
[1]
Solicitors:
Kells (for the offender)
Director of Public Prosecutions, Commonwealth
File Number(s): 2019/00326566
[2]
Introduction
Mr Chick, in relation to the two matters before the Court you are convicted. I will not be sending you to gaol today instead you will be subject to very strict orders. I can assure you that should you breach any of those orders, there will not be any compunction about gaoling you. You will get a second chance today. Do you understand? Take a seat. I have to give my reasons for my decision.
Daniel Chick was born in 1975. He has never been accused of a criminal offence until he was arrested for the current matters.
In August and September of 2019 he engaged in internet "carriage services" communications with a person he assumed was a 14-year-old girl. On six days over about a month he sent highly sexualised messages and images to that 'girl' including images of his penis and a video of him masturbating. He repeatedly asked her for pictures of herself, pictures that had they been sent as requested would have been child pornography.
Full and explicit details are set out in the statement of facts tendered. It is not necessary for the purposes of sentencing to set out the content of the communications, other than to record that his words and actions were, highly sexualised and directed to his own sexual gratification and to the inducing, that is soliciting, the 'girl' to join with him in similar actions and send the requested images.
His actions were restricted to online activity. He declined the offer to meet up with the 'girl' saying, in one instance, "Maybe in a few years lol".
The person he was communicating with was not a 14-year-old girl but a police officer using the assumed identity, whose job it was to detect such illegal activity.
As a consequence of his actions and his early plea of guilty Chick is to be sentenced for two serious offences. The first, pursuant to s 474.2A Criminal Code 1995 (Cth), use a carriage service to send indecent material to a person less than 16 years old carries a maximum penalty of seven years imprisonment. The second, use a carriage service to solicit child pornography material, s 474.19(1) of the Criminal Code carries a maximum penalty imprisonment for 15 years. It is accepted that the more serious offence is the 474.27A(1) offence which rolls up six communications.
[3]
Seriousness
The need to protect children and young persons from predators who use electronic facilities has been recognised by Parliament in providing for these offences and setting the significant maximum penalties. The guidance offered by those maximums is required to be enforced by the Courts with sentences of appropriate severity: R v Asplund; Asplund v R [2010] NSWCCA 316.
There is a significant public interest in protecting children from conduct that inappropriately sexualises them before they are old enough to protect themselves or respond appropriately in their own interests. This justifies targeting adult offenders who exploit the anonymity of the internet to win the trust of children as a step on the road to perhaps future abuse of them or, as here, utilise them for their own sexual gratification: Tector v R [2008] NSWCCA 151; 186 A Crim R 133 at [85]
That the person Chick thought he was communicating with was not a real 14-year-old girl is relevant to my assessment of the objective seriousness of the offence as the impact on an actual child would have made the offence so much worse. I am required in appropriate cases to take into account the impact upon a child victim but here no child was harmed. Courts do however have to take into account in applying its protective role the intrinsic harm that could have been caused had there been a real communication with a child. That communication could have had a profound effect.
It is clear, however, that Chick's actions were deliberately restricted to online activity as he declined offers by his victim to meet up. But that said, as he thought he was communicating with a child his moral culpability is no less because a police officer was involved: Gajjar v R [2008) VSCA 268. His actions were gross and criminally inappropriate. His actions were directed solely towards his own sexual gratification.
Despite his later protestations I find beyond reasonable doubt that so far as he was he was aware the 'girl' was under age and, as she stated, 14. He knew there was an age disparity between them. He knew what he was doing was wrong. He persisted regardless. This persistence indicates, at least apart from the first case, some premeditation.
[4]
Subjective case
Mr Chick gave evidence today and affirmed the material provided to his psychologist, Ms Cowen. He was questioned by Mr Kanagasabapathy, who appears for the Commonwealth Director of Public Prosecutions and myself about some aspects of his attempts to rationalise his criminal activity. I do not regard these rationalisations as going significantly to show his bad character, in fact, they reflect the material before me. He certainly did not seek to traverse his early guilty pleas.
I have the benefit of references from his parents and others that show he has strong family support, which he reciprocates by caring for family members, including a sister who has had problems and now his grandmother. He has the trust of a small group of friends. Although he remains socially awkward they still trust him with children. His friends were understandably shocked and angered by his offending, but they still have a belief in him.
He has worked most of his adult life, most recently as a store night manager. His arrest for this matter has rendered him unemployed.
Ms Cowen, a psychologist who is providing treatment to him, reports that she sees him fortnightly. She sets out his personal history, some of which has some self-serving aspects, particularly as to what the offender was thinking when he first engaged with the undercover officer and his belief she was over 18 and role playing. But Ms Cowen concludes that it was his decision to continue to interact with the person he believed was under age. Further, in her report she clearly sets out her own scepticism about such claims and how she is seeking, in her treatment program, to assist the offender in understanding his actions and their criminality and not rationalise them.
Her testing reveals Chick is a withdrawn and introverted man. He has no significant mental health problems but a number of significant personal problems that are amenable to treatment and lifestyle change. If he continues with his treatment, those changes will reduce significantly any prospect of reoffending. He is currently responding to treatment and while he still has little insight into his offending he has greater insight into the problems he has relating to women and making judgments as to who and how he relates with online.
Ms Cowen concludes he does not fit the profile commonly associated with sex offenders and that he has learnt and has a capacity to improve. In her professional opinion any progress would be impeded by a custodial sentence. From a clinical perspective she concludes gaol would serve no utility, to the contrary so far as her treatment of his is concerned, Chick would benefit from continuing with regular and fortnightly treatment in the community.
The Sentence Assessment Report and other documents are to similar effect. Like that given to Ms Cowen the history set out is uncontroversial. Chick grew up locally. He spent some time in Queensland. He self-describes as "a shy nerd." He has worked and has the capacity to work and form friendships but reports he has never been in an intimate relationship. As he grew older he has suffered continual anxiety about real world interactions. He is a lonely reclusive man spends most of his time on the internet "gaming." He interacts with others mainly online in the context of fantasy worlds associated with gaming as opposed to real world associations.
[5]
Relevant sentencing factors
I have the benefit of the comprehensive written submissions of Ms Humphreys, who appears for the offender, and Mr Kanagasabapathy which also both address the matters set out in s 16A, 17A Crimes Act 1914 (Cth).
Here general deterrence is a critical and important factor given the difficulty of detecting this time of offending behaviour and the need to protect children and young persons from online predators: Minehan v R [2014] NSWCCA 140; R v Hutchinson v R [2018] NSWCCA 152.
Anyone tempted to offend against a child must understand by the severity of sentences imposed by courts the consequences to themselves of such criminal behaviour. Nothing done by Chick was innocent or playful; it was exploitative and potentially harmful. Every act that involves the potential exploitation of a child is serious and it must be understood that there is an absolute prohibition on sexual activity with children, even online, given the psychological harm that can be taken to be caused by premature sexual activity.
Here the fact of conviction, the significant loss of prior good character, the fact he will be forever branded a sex offender, are all relevant matters. In making that comment I do not take into account, as I cannot, that he will also be registered pursuant to the Child Protection (Offender's Registration) Act 2000 (NSW).
Specific deterrence requires my consideration. Chick's prospects of rehabilitation, however, given all the material before me, appear, on balance, to be good. It is unlikely he will reoffend if he continues his treatment regime and if his access to the internet is monitored or controlled.
The following matters are also relevant. There was an early guilty plea justifying a specific reduction, here 25%, for its utilitarian value. His early acceptance of responsibility, albeit in the face of a strong prosecution case, is also some indication of his contrition and remorse and willingness to facilitate the course of justice.
Chick has no prior convictions. He was, until he committed this offence, a person of good character. He is still young and very immature. While these types of offences are often committed by persons of otherwise good character he is entitled to have that matter taken into account, and his loss of that good character taken into account.
There was no attempt here to disguise his offending. It appears he used his own name and he did not, as I have indicated earlier, seek out a meeting. He has strong family support. He has lost his job as a consequence of his offending. He has lost the home in which he lived because he could not, pursuant to his bail conditions, have access to the internet. Continuing restrictions or lack of access to the internet will affect his capacity to find work, even contacting Centrelink now requires internet access. The current blanket prohibition is, I find, causing significant financial stress and other hardship.
His prospects for rehabilitation I have addressed, but they do seem more than reasonable given the material before me. I have more regard to considered psychological opinions of the offender himself rather than STATIC assessment guides.
The report from the Community Corrections psychologist notes custodial sex offender programs would not be available in the circumstances of this case and not a realistic option. If under supervision for a lengthy period community based forensic psychology services may be available. But here, importantly, private community treatment is available and underway.
[6]
Guidance
While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include, as I have indicated, the maximum penalties, also the decisions of other courts and the purposes of sentencing. Here I have had the benefit of summaries of cases being provided to me and I have had time to have a review of them. Referencing two of them: In Kristensen v R [2018] NSWCCA 189, there was a sentence of one year and six months for multiple actual victims as a rolled up charge. In Nahlous v R [2013] NSWCCA 90, the Director relied on the fact the victim was a real child not an undercover police officer posing as a child. The Court in rejecting the Director's appeal noted that a suspended sentence is a sentence of its own right and while custodial sentences will be required in many cases such as this they are not always required, particularly if the sentencing judge finds chances of reoffending are slight. The Court in that case, and in Kristensen did not seek in any way, as I must not and do not, to minimise the seriousness of this type of offending.
[7]
Submissions
The Director submits that only a full-time custodial sentence with a minimum period of custody of some length could meet all of the purposes of sentencing and is appropriate to the seriousness of principal offence. Ms Humphreys, counsel for the offender, stressed that a non-fulltime custodial sentence would meet all of those principles and given that prior good character is a reasonable indication of future behaviour this offending could be treated as aberrant. Accordingly, she submitted that it was not necessary in all the circumstances, particularly given Chick's engagement with treatment, to send him to gaol. As I indicated at the outset of these reasons that I accept that submission.
[8]
Synthesis
The transmit indecent material offence requires the imposition of a custodial sentence. Serious though his request for child pornographic material was, looking at that matter independently, despite its relationship to the other conversations, I could not say that custody is required; noting as I must s 17A Crimes Act 1914 (Cth)
While general deterrence is an important consideration here community protection can be served by Chick remaining in the community and being supervised, undertaking treatment and resuming work.
[9]
Use carriage service to send indecent material to person <16 offence
You are convicted. So far as the transmit indecent material offence is concerned there will be a sentence of one year and ten months. That sentence reflects a reduction of approximately 25% to take into account the utilitarian value of your early guilty plea: I have rounded down.
I direct that you be released forthwith upon you entering into a recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) yourself in the sum of $400 without surety. With the following conditions;
1. There is a period of good behaviour for a period of two years from this date; to appear to receive sentence if called upon to do so at any time in respect of any breach within the said period.
2. To accept the supervision and guidance of an officer of Community Corrections New South Wales for two years and obey all reasonable directions, especially in regards to sex offender programs, for as long as they deem necessary.
3. To report to Wollongong Community Corrections within seven days.
4. Register with New South Wales Police all computer, phone or other devices to which you have access for a period of two years.
[10]
Use carriage service to solicit child pornography
In relation to the child pornography material you are convicted. I defer passing sentence upon you. I order you to enter into a recognisance pursuant to section 20(1)(a) of the Crimes Act 1914 (Cth), yourself in the sum of $400; to be of good behaviour for a period three years. The other conditions are the same as those imposed for the other offence, including the period of two years.
To explain- Before you get access to a computer you will have to register your computers an you must get the permission of New South Wales Police to do so.
You cannot on my bond use the internet until your devices are registered with New South Wales Police. New South Wales Police will register you under the Child Protection Act. They will put their own conditions on you. I cannot and have not taken those matters into account on sentence, but I think I need to explain them to you. I have no say on those but a breach of those conditions is, in fact, a crime and would mean you are not of good behaviour. If you breach those conditions or mine I will sentence you. That can cause you problems. The police conditions are very strictly enforced. Ms Humphreys can explain to you any challenges that you might make to those reporting conditions.
So far as my orders are concerned, you have been convicted of two offences. You have a deferred sentence for the lesser matter but you are on the bond to be of good behaviour for three years. So far as the principal matter is concerned there is a suspended sentence, effectively, of one year and ten months. There is a bond of two years. If you breach that bond I will impose that sentence. It is a condition that you report to Community Corrections and obey all directions of that service, especially in regards to sex offender programs. If they cancel your supervision then that's for them, but that the orders are for a period of two years.
[11]
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Decision last updated: 28 October 2020