Mr Tuckey (Counsel for the Offender)
File Number(s): 2016/13137
[2]
Judgment
This matter has a lengthy history. It first came before me on 23 November 2017. I set out in the transcript of my preliminary remarks, the charges that were laid against Mr Gilena in relation to two offences under s 474.27(1) of the Criminal Code (Cth) relating to an episode of offending between 29 March 2013 and 30 April 2013, that is about five and a half years ago. For reasons that are unexplained in the evidence, Mr Gilena was not apprehended in relation to this offending until 14 January 2016. Each of the two offences carries the maximum penalty of 12 years imprisonment.
Mr Gilena was born in 1988 and is now 30 years of age. I can indicate that the orders that I am going to make at the conclusion of these remarks is that there will be a sentence of 18 months imprisonment imposed. The sentence in each case will immediately be fully suspended on condition that he enter into a recognisance release order of three years duration to be of good behaviour and to be supervised by community corrections.
The agreed facts show that Western Australian police carried out some investigations into the use of websites Teenchat and Skype. The Police assumed the online identity of Amy Harding a 13 year old female from Perth. The offender initiated contact with that person, the fake person on 29 March 2013 and the agreed facts set out the chat that continued in relation to the offender asking the identity to chat and engage in suggestive activity.
R v Gilena [2018] NSWDC 419 | Case summary | Zoe
On 8 April 2013, he again initiated contact with the identity known as Amy Harding; she reminded him that she was 13. He asked her whether her father was around and whether she wanted to try talking by camera. They continued to chat on Skype, he tried to call her on video on five occasions but the camera was not working. He talked to her about masturbating and gave her detailed instructions and asked her to describe it for him.
On 13 April 2013, investigators assumed the online identity of Emma Sharpe a 13 year old from Perth. The offender initiated contact with her. He sent two photographs of himself to her and they spoke on the mobile phone. She said she was in Year 8 and aged 13. He said he was 25. They continued chatting on line on that day. He asked her to view his webcam and she accepted. He was sitting in a white top and he exposed his penis and masturbated until he ejaculated. Conversation continued with him talking to her in a sexually suggestive way. He then removed his top and appeared completely naked. Then he asked her to view his webcam again and this was accepted and he positioned the camera on his face.
On 14 January 2016 police executed a search warrant at his home at Wiley Park. He was cautioned and he said "I haven't spoken to anyone that young lately". He said that everyone he had spoken to was in their 20's. Obviously he had not spoken to real 13 year old girls but to identities assumed by the investigating police.
He has no criminal convictions and he served no time in custody in relation to these offences.
I have to sentence him in accordance with Part 1B of the Crimes Act 1914 (Cth). The Crown relies on the following matters to demonstrate the objective seriousness of the offences namely his engagement on two occasions with identities that he believed to be 13 year old girls. They were committed using multiple modes of communication and the Crown submits that the offending involved blatant attempts by the offender to sexually exploit these identities. The fact that the identities were Police officers is irrelevant according to s 474.28(8). The fact that the victim was an undercover operative does not make the offence any less reprehensible. The offence was part of a course of conduct committed over a short period.
An early plea of guilty in the Local Court must be taken into account, as set out in the Crown's supplementary written submissions, following the decision in Xiao v R [2018] NSWCCA 4. The Crown submits that general deterrence is significant given the public interest in protecting children from sexual abuse and there is no dispute with that proposition. The fact that these offences are often committed in secret presents difficulties for detection and prevention, and heightens the need for general deterrence. The Crown submits that there should be at least partial accumulation given the two separate episodes of offending.
Prior good character is not unusual in this area of offending and should be given less weight as noted in cases such as that cited by the Crown of R v Gent [2005] NSWCCA 370. His mental condition should be taken into account when I review the evidence on that in due course.
The Crown noted a diagnosis of the offender by Dr Furst of autism spectrum disorder in the initial report, and then a revised suggestion that the symptoms were more in keeping with schizophrenia and he has ongoing deficits and features of schizophrenia. The Crown submitted that the Court should have little confidence in accepting that diagnosis. His risk of reoffending is low according to the Crown's note of Dr Furst's opinion, but again without challenge to Dr Furst, the Crown submits that this should be disregarded. The fact that he has not reoffended in over five years is a significant indicator that he is unlikely to reoffend. The Crown notes that I could only impose a sentence of imprisonment if I am satisfied that it is the only appropriate sentence in all the circumstances.
The first of a number of cases referred to by the Crown in submissions is the New South Wales decision of R v Nahlous [2013] NSWCCA 90 in which the Court dismissed the Crown appeal against the asserted inadequacy of an 18 month suspended sentence in what is described in my preliminary remarks as relevantly similar circumstances. Although as the Crown helpfully pointed out this morning in R v Nahlous [2013] NSWCCA 90 there were 1712 communications between the respondent and the victim and as well an indeterminate number of instant chat messages. Whereas in this case there were, it seems on the agreed facts, less than ten episodes of contact. I also have regard to the matters of R v Costello [2011] QCA 39, R v Rampley [2010] NSWCCA 293 and R v Asplund; Asplund v R [2010] NSWCCA 316 referred to by the Crown but it is unnecessary to set out the details of those cases.
I have had regard to the limited degree of assistance that can be gained from the statistics in relation to this offence.
There is a significant quantity of evidence as to the treatment that has been undertaken by the offender, firstly with Amena Ahmed a forensic psychologist. Dr Furst a consultant forensic psychiatrist initially reported in August 2016. The history that is unchallenged, and is accepted in the light of the fact that the offender has given evidence before me. He was born in Sydney, attended public schools and Canterbury High School until year 8 and then discontinued because of reading and writing difficulties. He was a loner and socially awkward and avoided conflict with others and spent most of his time at home living with his mother and step-father.
When questioned about the events, around the offending he said:
"I must have thought people were who they said they were, they were messing with me and I was messing with them".
He said:
"I don't trust people, they were text on the screen, I must not have paid attention to what they were saying, I must have gone too far messing with people."
Dr Furst reviewed a psychiatric report from Justice Health on 18 February 2016. He considered fitness issues and found that he was fit to be tried. In a subsequent lengthy report of 17 November 2017 Dr Furst provided a reassessment noting that the offender had been unemployed, receiving Newstart allowance, and reporting three days a week. He said that he thought that his autistic spectrum disorder or schizophrenia contributed to the commission of the offence in a material way. He said his offending was likely to have been a sexual outlet for him and the functional impairment associated with the schizophrenic illness and his social isolation likely contributed to his offending actions. He said that he was socially inept, mentally impaired and has poor judgment of social norms. He recommended a treatment plan for treatment in the community.
Dr Furst reported again in April this year and said that assertive case management with his local mental health team at Bankstown was appropriate and his mental condition, including symptoms of anxiety would not be a barrier to his ability to engage in the treatment plan.
Dr Yu, the GP, reported in April that he was reviewed for ongoing management regarding his mental state and there is a mental health treatment plan in evidence to which I have regard.
Mr Gilena's mother has filed an affidavit recently confirming that she lives with him at Wiley Park with her husband and other children. She has been taking Robert to his appointments with Amena Ahmed, the psychologist, each month. He has been on six occasions and has not missed an appointment. She can hear him during the consultation. He sounds relaxed and seems happier when he comes out of the room and he is more relaxed and seems to be coming out of his shell and he has been more socially engaging and he is even able to leave the house and do some shopping as distinct from doing it on line in the past. Mrs Maroon, who works for an animal charity, and volunteers associated with the charity would often attend the house and in the past and Robert would not speak with these people and now he greets them and converses with them. Up until early this year she said Robert seemed to think that everyone was against him including herself but as the years progressed he seems to have improved and does not think people are against him so much and now he talks to her about his problems, which is a positive sign.
Amena Ahmed reported that he has continued to attend on a total of seven sessions up until last Friday, he has attended punctually, focussed on cognitive behaviour therapies, and he is compliant with suggestions made in sessions and attempts to implement strategies in his everyday life. He is becoming more comfortable and opening up and developing better insight into his circumstances.
In July 2018, Mr Gilena was referred to the client assessment referral unit of Legal Aid for assistance in being referred to Canterbury Mental Health Service as recommended in Dr Furst's report. On 26 July a psychiatrist Dr Maharaja confirmed that she had considered Dr Furst's report, consulted with his GP and in consultation with a senior staff she recommends that Mr Gilena be managed by his GP who can initiate medication, if required, and oversee his care. She said the mainstay of treatment for Mr Gilena is psychological therapy and at this stage there is not a need for him to receive care co-ordination through the Canterbury Mental Health Service. Her understanding is, after speaking to his mother and the offender that he is continuing to access psychological therapy with Amena Ahmed.
Some comprehensive written submissions were prepared by counsel then appearing for the offender early this year, and supplemented by counsel today. As is pointed out, in each case the person communicating with the offender was an assumed identity and as a result there was no child receiving the communications which is a relevant factor to be taken into account on sentence under s 16A(2)(d) and (e) of the Crimes Act 1914 (Cth). There was no attempt by him to avoid detection, he was honest about his age andhe gave his own mobile phone number. He did not encourage the other party to communicate only when alone, there was no urging on the part of the offender to keep the communication secret and there was no manipulation, blackmail or threats. Although it is conceded that they were serious offences, the conduct fell at the lower end of the scale for offences of this type, as submitted by counsel. He has displayed evidence of remorse by his actions and his evidence. His plea of guilty is taken into account in the way that I have indicated. He was cooperative with law enforcement agencies when they executed the search warrant. As to the deterrent effect that any sentence may have on him or others, I take account of his mental condition as expanded in length in the medical material to which I have referred. As is said in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 and similar cases, his mental condition lessens the need for general deterrence to be highlighted in this sentencing process.
The offender's previous good character and his personal circumstances have been taken into account, and his continued compliance with court orders, bail conditions and treatment plans over a very long period of time is a relevant factor to be taken into account.
His prospects of rehabilitation which led to the initial adjournment in November last year, at the suggestion of the Crown, can be assessed as very good and his involvement in rehabilitation over an extended period demonstrates that his prospects continue to be good.
Mr Tuckey ultimately put in his written submissions that it was appropriate to suspend any sentence for a number of reasons, namely that imposition of a term of imprisonment, albeit suspended, recognises the seriousness of the offence and the need for general deterrence; the unexplained delay in prosecution since the offences occurred in 2013, in circumstances where the month long course of offending was isolated and there has been no subsequent offending; specific deterrence, having less weight in light of the prior good character and the absence of any further offending, and the mental condition of the offender operates so as to make him an inappropriate vehicle for general deterrence and would make any period in custodial environment more onerous, as opined by Dr Furst.
A conviction and a period of recognisance would adequately punish the offender for his offending and supervision during a suspended order would provide the community with the best assurance that the offender will be rehabilitated and will not reoffend. All of those matters confirm my view that this should be a suspended sentence in the manner to which I have earlier referred, namely that in respect of each offence the offender is convicted and sentenced to imprisonment for 18 months fully suspended on condition that he enter into recognisance release order for three years and to be supervised by community corrections for such period as the service thinks fit.
The orders that I make are:
1. The offender is convicted of each offence
2. In relation to each offence the offender is sentenced to a term of imprisonment of 18 months commencing today. He is to be released forthwith on the condition that he enter into a recognisance, self, in the sum of $100, on the condition that he be of good behaviour for 3 years and supervised by Community Corrective Services and subject to the following conditions:
1. The offender must not travel interstate or overseas without the written permission of Community Corrective Services.
Note - These ex-tempore sentencing remarks were revised without access to the court file.
[3]
Amendments
15 March 2019 - Anonymised unique personal identifier at [1].
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: 15 March 2019