R v Fleming

[2021] NSWDC 453

District Court of NSW|2021-07-02

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At a glance

Source facts

Court

District Court of NSW

Decision date

2021-07-02

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

Introduction

Bryce Fleming was born in 1999. He is for sentence today for six offences that occurred between July and October 2019. The complainant in this matter, Scott (a pseudonym), was born in October 2004. Earlier this year, Fleming was arraigned and pleaded guilty to five counts of sexual intercourse with the young person, then aged 14, in circumstances of aggravation, namely, that Fleming took advantage of the young person, being under the influence of a drug, in order to commit the offence. All of those matters are pursuant to s 66C(4) Crimes Act (NSW) 1900. They carry a maximum penalty of 12 years imprisonment, and for an offence, which taking into account only objective factors, falls in the middle of the range, there is a standard non‑parole period of five years. Count 4 charges sexual intercourse with a person aged 14 to 16: s 66C(3) Crimes Act, maximum penalty, ten years.

[2]

Form 1

When I sentence Fleming for Count 1, he has asked that I take into account two other matters; commit an act of indecency and incite an act of indecency: s 61N(1) Crimes Act (NSW); maximum penalty two years. It is appropriate that I do so. I do not sentence for those matters, but they could lead to a longer sentence for the matter for sentence to take into account the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115. Here, these matters were preparatory to the offence in Count 1. They formed part of what the Sentence Assessment Report (SAR) referred to as "grooming behaviour." Because I have taken them into account when I formulate the objective seriousness of the offence for sentence, any Form 1 increase would be notional as I could not double count such matters.

[3]

Agreed facts

There are agreed facts before the Court. I will summarise them, trying to avoid prurient details. The offender, as was his right, was on a social media site Grindr. I am informed, and accept, that it is primarily used for adults to meet for sexual purposes. The young person, Scott, was also on that site, despite access to the site be notionally limited to those aged over 18.
In their communications, Fleming told Scott that he looked too young to access the site. Scott confessed that he was 13 years. The two agreed to meet. The Form 1 matters, relate to an incident in 2017, the first time they met in person. On this day Fleming, another man, and the young person were at his home. Cannabis was smoked in Scott's presence. Fleming masturbated, and made a request that Scott "suck his dick." The other man told the offender to leave him alone, which Fleming did.
The sexual relationship, detailed in the agreed facts, commenced in in 2019, probably early September; by this time Scott was 14. They met, and both smoked methylamphetamine. Fleming requested fellatio, Scott agreed, and each performed fellatio on the other. Later that morning they went to watch the sunrise and Scott performed fellatio on Fleming while they were on a bush trail where. Scott then asked to be taken home: Counts 1, 2, and 3.
The following night they met again behind Fleming's home. Scott again agreed to and performed fellatio on the offender: Count 4.
In mid‑October 2019 the two met and went by train to Sydney. They stayed in a motel. Fleming provided champagne and wine. Scott was well affected by alcohol. After some physical touching, Fleming performed fellatio on Scott and then Scott performed fellatio on the offender: Counts 5 and 6. At this point the offender asked Scott to have "sex" with him; he declined, and became distressed.
The agreed facts are short on detail after this. It appears that the child tried to make his way to a train station. There was an argument, and Fleming called Scott's mother. He also called the police, telling Scott he did not care if he went to gaol, he just wanted to get him home safely. Scott was obviously distressed by what occurred, and ran in front of a taxi, though he was not hit. The police came and took Scott to a police station, where his father picked him up.
Scott later disclosed the sexual encounters and the use of drugs to a number of people. A formal complaint to police was made on 17 October 2019. There was a covert call between the child's mother and the defendant in October 2019, during which Fleming made an admission to one act. The offender appears to have made a distinction between oral intercourse and other forms of sexual intercourse. He was arrested on 8 January 2020.

[5]

Objective seriousness

The maximum penalty for each of the offences, and the standard non‑parole period attached to the five counts, are stark statements by Parliament as to how serious sexual offences against children are regarded. Any contact of a sexual nature with a child is totally forbidden. The offender, from all the material before me, was well aware of this fact. The courts are enjoined to respect the direction given by the maximum penalty and the standard non‑parole period.
Recognition must be given to the real possibility of both immediate physical and psychological harm to a child exposed to premature sexual activity. There is a real risk that any psychological harm can continue for many years. Accordingly, court must impose sentences that appropriately punish, but also exact a measure of retribution in order to bring home to this offender the seriousness of their crimes, and to signal to others in the community that they will be punished, and punished severely should they offend in a sexual way against children.
Five of the matters for sentence have, as an element, the aggravating circumstance that the offence was committed by the offender taking advantage of the young person being under the influence of a drug in order to commit the offence. Again, the law is very clear: exposure to drugs, whether they be methylamphetamine, illegal, or alcohol, legal, can have an immediate and lasting physical and psychological impact on a child. The protective function of the Court requires a significant punishment in most such matters.
The acts themselves involved oral intercourse; skin‑on‑skin touching. The child was alone with the offender. The relationship had been fostered by the offender. I am prepared to accept that their relationship was, in a sense, protective as the offender himself had suffered considerable distress at coping with and understanding his sexual identity and was concerned that a person as young as 13 was on the 'Grindr' site. At the same time, their relationship was exploitative. An adult took advantage of a child in a sexual manner. This is evident from the, as is evident from the facts before me, and demonstrated by there being a sexual act by this offender when they first met in person - the Form 1 matters.
The Sentence Assessment Report and the other material before me put the offender's own perspective - he was somehow looking after the interests of the young person. But it is also clear that he was prepared to use a child for sexual purposes. Whatever sympathy he thought he was showing Scott and whatever protective role he thought he was playing, each matter for sentence involved the exploitation of a child for prurient sexual purposes. And, in five of them, the exposure of a child to drugs and alcohol were before he was old enough to make any rational choices about such matters.
I have to give content to the standard non‑parole period, but here there are reasons for departure from it, not the least being the plea of guilty and the absence of further aggravating further circumstances. While there is no Victim Impact Statement before the Court that fact alone cannot mitigate. The agreed facts indicate how distressed the child was following the last encounter and demonstrates the danger on immature young people of early sexual activity and intoxication with alcohol.
The offender was older than his victim. It is however clear from all the material before me that he was, at the relevant time, very immature. He should not be sentenced in accordance with his actual age. That said, there is a considerable difference between even an immature 20‑year‑old and a 14‑year‑old. A 14‑year‑old is usually in their first or second year of high school. He has probably only just reached puberty. A 20‑year‑old is an adult, permitted to drive, to drink, to work, to vote. All those marks of adulthood applied to this offender. It may be that he was still only learning about relationships, and it may well be that the young person envied him and his adulthood. That difference can be significant: Nelson v R [2016] NSWCCA 130, Rothman J at [62] to [65].
The law has established an arbitrary age below which consensual sexual relations are impossible, and that age is 16. That means a child below the age of 16 cannot consent to consent to activities set out in the agreed facts. The presence of absence of consent can be irrelevant in the assessment of objective seriousness of a sexual offence: Dawkins v R [2018] NSWCCA 278, Wakeling v R [2016] NSWCCA 33, Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150. In most circumstances to describe sexual activities involving children as "consensual" is both erroneous as a matter of principle and fact: Nelson per Basten J at [16].
The absence of consent is not an element of or inherent in s 66C offences. Forced intercourse without consent would be relevant as a matter of aggravation, if care is taken not to infringe the principles set out in The Queen v De Simoni (1981) 147 CLR 383, but the absence of an aggravating feature does not mitigate the seriousness of the offence.
A better approach was suggested by the Court of Criminal Appeal in Bell v R [2019] NSWCCA 251. The issue of consent should be taken into account by approaching each offence on the basis that each act of sexual intercourse was "non‑oppositional." And, that is a matter that I can take into account when assessing the seriousness of the offence, balancing that will all other matters, particularly the age differential to which I have already referred.

[9]

Other subjective features

The offender was very young; he was very immature. Immaturity is a relevant factor on sentence. It is clear from all the material before me, including the references that he has thought to better himself. And has obtained qualifications. When he was young person he was treated as someone who required special education. He was told he was unteachable.
His progress, since arrest, by entering university and completing his university courses indicates that he has matured. He is capable of focusing, and has demonstrated a capacity to lead a productive life in the community. A dependency on marijuana and other drug use blighted his teenage years. Instead of protecting Scott from this, he introduced him to the drugs, which does him no credit. But to his credit there is material before the Court that, with the help of Illawarra Drug and Alcohol Service, he appears to have stopped the use and abuse of illicit drugs.
He tells me, although it was not on oath, that he is doing everything he can to improve himself. He has expressed remorse. This is, as the Sentence Assessment Report points out, qualified because - to use their terminology - "he has minimised his own agency." His initial intentions, he states, were innocent, and he said he felt upset he had been portrayed as a predator.
Speaking directly; Mr Fleming, your behaviour was predatory towards this young person. It is one of the reasons why the Sentence Assessment Report annexure, from the senior psychologist, indicates that there are matters of concern so far as your risk of reoffending is concerned; matters that must be addressed, if possible, in custody and certainly post release by access to programs.
Given the time served, and given the leniency that I intend to extend to him, Fleming may not have an opportunity to complete a program in custody, but it is clear that when he is released it would be in his interest that he see his GP again for a referral to a private psychologist.
It may be some other programs will be made available to him. He has the benefit of strong pro‑social support from many family and friends. He, himself, has had to deal with a number of particular problems growing up, and has done so successfully. For the moment I do not regard the previous convictions as of particular relevance. I am reasonably confident that with assistance he will not offend again.

[12]

Orders

In relation to each of the matters, the offender is convicted. I have to indicate sentences for each matter and standard non-parole periods for each of the s 66C(4) offences.
I indicate that my starting point for Count 1, taking into account the Form 1, would have been four years and six months. For the Counts 2, 3, 5 and 6, it would have been four years; for Count 4, two and a half years. There has to be some rounding down, I do not believe it is necessary that there be days and week set out for indicated sentences. 1. In relation to Count 1, taking into account the matters on the Form 1, as it carries a standard non parole period I indicate a sentence of 4 years with a non parole period of 2 years 3 months 2. In relation to Count 2, I indicate a sentence of 3 years 7 months with a non‑parole period of 1 year 11 months 3. In relation to Count 3, I indicate a sentence of 3 years 7 months with a non-parole period of 1 year 11 months. 4. In relation to Count 4 I indicate a sentence of 2 years 3 months 5. In relation to Count 5 I indicate a sentence of 3 years 7 months with a non- parole period of 1 year 11 months. 6. In relation to Count 6 I indicate a sentence of 3 years 7 months with a non‑parole period of 1 year 11 months.
There will be an aggregate sentence in this matter of 5 years and 3 months, indicating a special circumstance finding - 55% of the sentence should be spent in custody.
The non‑parole period will be 2 years and 10 months, commencing on 28 January 2021. Fleming will be eligible for consideration for release to parole on 27 November 2023.
There will be a parole period of 2 years and 5 months. It is to commence upon the expiration of the non-parole period on 27 November 2023 and expire on 27 April 2026. The total sentence expires on 27 April 2026. Whether the offender is released to parole will be up to the State Parole Authority.
I direct that the Registrar, Wollongong District Court forward with the warrant a copy of the reports of Dr Yee and Dr Lee.