R v Harford - [2023] NSWDC 6 - NSWDC 2023 case summary — Zoe

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R v Harford

[2023] NSWDC 6

District Court of NSW|2023-01-27|Before: Riley CJ, Spigelman CJ

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At a glance

Source facts

Court

District Court of NSW

Decision date

2023-01-27

Before

Riley CJ, Spigelman CJ

Catchwords

[2002] NSWCCA 518 Gifford v R [2016] NSWCCA 302 Bahar v R (2011) 45 WAR 100
[2011] WASCA 249 R v Pot, Wetangky and Lande (Supreme Court (NT), Riley CJ, 18 January 2011, unrep) DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194 Bugmy v R (2013) 249 CLR 571
[2013] HCA 37 Nasrallah v R (2021) 105 NSWLR 451

Source

Original judgment source is linked above.

Catchwords

[2002] NSWCCA 518 Gifford v R [2016] NSWCCA 302 Bahar v R (2011) 45 WAR 100[2011] WASCA 249 R v Pot, Wetangky and Lande (Supreme Court (NT), Riley CJ, 18 January 2011, unrep) DPP (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194 Bugmy v R (2013) 249 CLR 571[2013] HCA 37 Nasrallah v R (2021) 105 NSWLR 451[2021] NSWCCA 207 R v AWF (2000) 2 VR 1

Judgment (23 paragraphs)

[1]

Solicitors: Solicitor for Public Prosecutions (Commonwealth) (Crown) Ross Hill and Associates (Offender) File Number(s): 2021/325245

[2]

Judgment

James Gray Harford, the offender, appears for sentence in respect of 11 counts on an indictment to which he has pleaded guilty. Counts 1 to 9 inclusive are offences under the Commonwealth Criminal Code ("the Code") and counts 10 and 11 are offences under two state Acts being s 13(1) of the Child Protection (Offenders Prohibition Orders) Act 2004 ("the Prohibition Orders Act") and s 17(1) of the Child Protection (Offenders Registration) Act 2000 ("the Registration Act") respectively.

[3]

The offending

The common element of each of the Commonwealth offences is the use of a carriage service. As can be seen from the table, six of the Commonwealth offences involve the use of a carriage service seeking to procure a person under 16 to engage in sexual activity or to groom a person under 16 to make it easier to procure that person for sexual activity. Two further offences are of using a carriage service for sexual activity with a person under 16 and using a carriage service to transmit indecent material to a person under 16. The remaining charge is of using a carriage service to solicit child abuse material: Criminal Code s 474.22(1). The two state offences are of non-compliance with the relevant legislation because on 14 April 2021, being a date about the time the offender left the community support facility at Malabar, orders were made by the Waverley Local Court requiring the offender to report details of email addresses and Internet usernames and the like (pursuant to the Registration Act) and prohibiting him from communicating or attempting to communicate with a person under the age of 18 through electronic communication (pursuant to the Prohibition Orders Act).
Before recounting the facts of the offences by summarising the facts in the Agreed Statement of Facts in exhibit A and assessing the objective seriousness of the various offences, it assists to first set out the types of considerations established by the authorities for assessing objective seriousness of offending. There was no dispute between the parties as to those considerations. Similar considerations such as the nature and volume of the child abuse material are relevant in considering the s 474.22(1) offence. The written submissions of both parties were of great assistance in determining this case, not only in this regard but also in respect of the correct approach to the minimum sentence provisions.
In terms of the relevant factors to consider I adopt the matters set out in the Crown submissions without repeating the citations for the relevant authorities. Numerous of those factors were identified in the course of the oral submissions, namely: 1. The nature of the words used in the communication and of other material communicated. 2. The age of the recipient. 3. The length of the communication, both in terms of the period over which it occurred (in so far as can be determined), the volume of words, and also the number of communications. 4. Whether the recipient can be found to be in fact a person aged under 16. 5. Whether imagery was also sent by way of the carriage service. 6. The level of engagement, that is, was there communication other than text messaging, for example voice messages.
Other factors identified in the written submissions included, so far as is relevant to the present case: 1. The extent to which the intent for future activity with the victim is exposed and developed. 2. The age and power differential between the victim and the offender. 3. The offender's level of awareness and deliberateness in the communications. 4. The nature and degree of any planning on the part of the offender.

[5]

Count 1

Section 474.26(1), in short form using a carriage service to communicate with someone under 16 with the intention of procuring sexual activity: this offending occurred in the period 30 September 2021 to 8 November 2021.
The facts for this offence emerged from the Snapchat application where there is a conversation between the offender and a recipient known as R (a pseudonym).
The offender says to the recipient that she is "ridiculously sexy" and he would like lots of photos of her. He asked if she likes older guys. She says she is 14 and it depends how old. He asked if 23 is too old (remembering that he at this time is 36 or 37).
He asked if it bothers her that he wants to kiss her and she says no and he continues that it might not even stop there and that he might start touching her a little bit and she says "go for it."
The offender says "I'm going to fuck you when I see you".
When she says, in effect, "good night" he pleads with her to come back and that he needs to come for her and asked if she would let him "eat [her] pussy" if he was there. He then says he is older than 23 and asks "Do you want to see my cock hunni".
Both parties submitted this was below the mid-range of objective seriousness. I note the communications occurred over a period of approximately five weeks. The recipient was 14 so towards the upper end of the age required to make out the offence. That said, it cannot be said beyond reasonable doubt that was the age of the person, a point agreed between the parties (1). That is, it is only in relation to the offending relating to the recipient "Sunflower" who provided a Victim Impact Statement that the age is known beyond reasonable doubt so as to be able to be taken into account. The words of the section require the sender to "believe" the person is below 16, which is what is established, and that is common to all of the offences in counts 1 to 9 inclusive, but for count 7 (and with it in fact being the case concerning "Sunflower", counts 3 and 5). No imagery is sent in this count by the offender with the communication being limited to text message and voice message. The recipient did send a video of a female aged between 13 and 15 pouting her lips. The words increase in their explicitness culminating with the offender apparently describing himself masturbating and explicit words seeking cunnilingus. The offender is at this time 36 or 37 so there is a significant age differential which is common to all the offending as to his age and the age he believes the recipient to be (2), and also what may be termed a power imbalance, in that it is a man of adult years engaging with who he believes to be a child (3). The offending is very deliberate and clearly intentional and given its conduct over the five-week period I find not impulsive, but in my view there is no significant or detailed let alone sophisticated planning (4). The platform Snapchat was used. I accept the submissions as to this being below the mid-range given the above factors. That said, I find it is not at the very bottom of the range, a relevant consideration when considering the impact of the minimum sentences provided for. The matters identified by numbers in parentheses are referred to in these reasons as "the common features", with (1) and (4) being matters not adding to objective seriousness, and (2) and (3) adding to objective seriousness, moreso (2).

[7]

Count 3

Section 474.26(1): in short, using a carriage service to transmit a communication to the recipient believed to be under 16 with the intention of procuring the recipient to engage in sexual activity.
In addition to what is referred to above concerning this count, there was a further conversation of a similar type on 8 October 2021. The offender says things such as "I need to eat your pussy rn as I crave your juices so badly". He said he wanted to "dominate [her] sometimes".
On 13 October the offender spoke with the recipient and said he needed to make love with her and that he wanted to make her wet. In a later conversation he said, "Even if you're bleeding I'm still making love with you". He talks of how "[her] first time will hurt" and asked if she can shave for him before they meet.
The offender transmitted images of himself and his penis.
Notably it was stated by the recipient early on that she was 13 years old. Further this count involves the person known as "Sunflower" who is the one recipient where it is established that she was an actual 13-year-old girl.
Apart from the factual difference concerning the age of the recipient, a difference which adds to the seriousness of this offence, the same common features as were present with count 1 are present here. The clear distinction of this count to counts 1 and 2 is the heightened explicit nature of the words used and the degree to which the intended sexual activity is described. By way of example it extends to the offender saying "I'm going to destroy you in the bedroom my cock is very very thick as you already know". He then encourages her to "force three fingers in that sexy tight pussy". The communications show an intention to be exploitative and damaging. On 6 October, remembering that the first communication was 5 October, the offender says "marry me" and when the recipient asks how he says "Five years' time. I'll wait." The offender also said, "I want to cum inside you" and "I want to make you pregnant." The offender also wanted to know the suburb of Brisbane where the recipient lived so he could stay somewhere close to her. Of course, just whether the offender planned on doing this is unknown but at face value it is an intention of inappropriate conduct and suggesting, at least to the recipient, that there will be some continuing involvement.
The offending occurred between 5 October and 28 October. The explicit nature of the language used, the imagery it conjures up and the statements as to future intentions in my view places this offence into the mid-range of objective seriousness.

[9]

Count 5

Section 474.25A: in short, engaging in sexual activity using a carriage service with a child, namely "Sunflower", the recipient relevant to count 3. The indictment specifies the date of the offending as "on or about 7 October 2021", so not over a period of time as with some of the other charges.
The evidence of this is an audio recording and video recording. The recipient was recording the chat log and also an audio chat which was recorded a short time later. The audio chat conversation continues in a similar fashion to the earlier chat (count 3) but with moaning sounds coming from both the recipient and the offender which is relied on and accepted to establish sexual activity, which, although not expressly stated in the facts, must be either masturbation or lesser sexual stimulation arising from the clearly sexual communications. The offender tells the recipient to "tickle your clit" and says of himself "I'm as hard as a rock".
Although the Crown's submissions refer to these communications occurring over a period of weeks, which is correct as between the offender and the recipient, the facts of count 5 relate to just one occasion. The facts of count 3 provide context, but the facts being sentenced on for this offence are those at par 15 of the facts, and on or about 7 October, as noted above. This approach was confirmed by the parties in answering a query raised after submissions.
I accept the Crown submission that this offence is designed to capture sexual activity occurring over a carriage service, particularly with the advent of readily accessible video. Yet here the offender did not use video to show himself masturbating, or to see the recipient masturbating or otherwise being stimulated so as to moan, rather the video was as described above, and recorded by the recipient. Whilst again noting the different offence charged, the words used in this offence are lesser examples of such conduct than say counts 1 or 3. On a scale of sexual activity, masturbation / stimulation transmitted by audio groaning is low. For these reasons and noting the common features but for the matter of age, here more adverse to the offender, I reject the Crown submission of this offence as being significantly above the mid-range, and assess it as below mid-range, which I note is the offender's submission.

[11]

Count 7

Section 474.22(1): This section provides for a number of ways of committing an offence, with the relevant offence here being that the offender used a carriage service to solicit child abuse material (see indictment). The offence occurred on a particular occasion on or about 23 October 2021. Unlike the other Commonwealth offences it is not necessary for there to be involved a person under 16 other than the person depicted by the child abuse material. That said this offending did involve another recipient believed by the offender to be under the age of 16, namely 12-14 which is an agreed fact, and by recipient it is meant a person the offender was communicating with and it was from that person the child abuse material was solicited.
The recipient here is a 12- to 14-year-old female using the screenname P (a pseudonym).
The offender asked the recipient to forward a naughty photo of herself and when she sent a photo of her face with a filter of love hearts around her hair, he asked her if she had any other photos than the one she uses on "kids chat".
As acknowledged by the Crown this is a non-intimate image. The offence is made out where child abuse material is "solicited" albeit not received. The offender fairly notes in relation to this matter the young age of the person being purportedly communicated with and the age difference. The soliciting was however unsuccessful, and whilst the offender pressed for another photo, he did not do so in an aggressive or overpowering way. For that reason I assess it as being of low objective seriousness.
Schedule matter: In sentencing for this offence the court is to take into account the schedule matter pursuant to s 16BA CCA which is offending pursuant to s 474.27A(1) of the Code, an offence of transmitting indecent material to a person the offender believed to be under 16. Here the offender believed the recipient to be a 12- to 14-year-old female and sent her on 7 November 2021 two images of an adult penis. I note the maximum sentence for this offence is 10 years. The common features are again present. There is again the power imbalance reflected by the age disparity (the recipient is again P), whether real or false (i.e. 26 or 36), it remains the fact that the 36-year-old was dealing with someone he believed to be 12 to 14. On a scale of explicitness the image is plainly indecent without being grossly so. In accordance with the approach outlined above this offence will be taken into account but to assist in exposing the reasoning I consider this offence to be below the mid-range.

[13]

Count 9

Section 474.27(1): this is the fourth of the charges under this section, to use a carriage service with the intention of making it easier to procure someone believed to be under 16 years of age to engage in sexual activity.
The indictment states the offence occurred on or about 10 November 2021. This is at odds with the facts and with the basis on which the parties have made submissions. The agreed fact is the offending occurred between 25 October 2021 and 7 November 2021. When this was raised with the parties, by consent the indictment was amended to be in line with the agreed fact. The offender was then re-arraigned on that one amended count.
Again it cannot be said the recipient was in fact a child but the belief of the offender was that she was aged 10 to 11 years. The deceit of the offender here is different and perhaps more gross as he pretends to be a female and sends the recipient an image of a female aged between 13 and 15.
On 25 October he sends an image of a vagina spread open with fingers to the recipient, saying "so you're not into my vagina at all" and "can I see yours". The offender says he would love to see the recipient naked and discussed masturbating. He also asked if she had seen a "dick" before. She says no and that she was a lesbian. She sent him a video of a 10- to 11-year-old female dancing. The offender asked the recipient to send him a photo of her "tits" and she says no. The offender replied "sorry I was horny when I wrote that".
This method of offending differs from the other occasions of grooming. The explicit language is not of the grossly explicit type. The nature of this deceit is both different and, I consider, more serious and would appear to be an obvious ruse to see a child's vagina. Curiously the communication ends with an apology. The reference to looking at the recipient while she is at school is disturbing. So far as intended future contact is concerned that does not seem very likely given the apology and the fact that obviously the fabrication of being at school and being female will never occur; put another way he has not made any suggestion as to when they actually meet without discounting the fact that sexual activity can occur online. On balance however I consider this to be below the mid-level of objective seriousness.

[17]

Subjective Case

The offender relied on a report of Dr Furst, a psychiatrist, dated 11 January 2023. The history given is of the offender growing up in Thirroul and attending school until midway through year 11. There was some bullying. There are no indications of intellectual disability or specific childhood psychiatric disorder.
His relationship with his father was not close and there is reference to apparent verbal abuse but not physical abuse. There is a history given, which I note the Crown does not dispute, of physical and sexual abuse by the principal of the offender's primary school at age 9 or 10. This was apparently the trigger for drinking and drug use in childhood.
At age 24 he was admitted to Wollongong hospital with apparent psychotic symptoms which emerged on the background of regular use of methylamphetamine and cannabis. He received psychotropic medication that was discontinued not long after discharge from hospital. In his mid-30s he was prescribed an antipsychotic mood stabilising medication by his GP. On arrest in 2017 that medication was reduced initially from 1000 mg to 100 mg and then raised to 300 mg whilst in custody.
He was also treated with antidepressant medication in custody in 2018 which he says helped him to cope although he still had symptoms of depression and anxiety.
The history included referring to a voice he called Kevin which Dr Furst considers is not a true psychotic symptom but indicative of depression.
The substance use history is smoking cannabis from age 10 and drinking alcohol from age 11. Ice was used from age 19 until the admission referred to above at age 24, which would be 2008. The report says there was a relapse into drugs and heavy drinking in 2017 which suggests a substance abuse-free period of almost 10 years, though in submissions that was not maintained. The offender injected Suboxone in custody.
It is said he relapsed into drinking fairly heavily and was using drugs in 2021, that is in the leadup to the offending. The drug use was of non-prescribed Suboxone and heroin and drinking about three longnecks of beer and about 4 litres of wine each day.
There was some use of cannabis by his parents though neither had a major mental illness.
The report canvasses the offender's criminal history which is also evidenced by exhibit A. It is convenient to refer to it now. The offender was first incarcerated in respect of a sexual offence in Queensland in 2013 where the charge was assault with intent to rape. The offender said he was very drunk at the time and received a three-year sentence and was released on parole after 15 months.
In 2015 in New South Wales there was an offence of indecent assault together with 2 counts of using a carriage service to menace/harass/offend. Again the offender says he was drinking heavily at the time. The view was expressed that the offending indicates most likely sexual deviance. For this offending he received an 18 month sentence with a 12 month non-parole period.
He was released on parole on 15 October 2016 and reoffended in May 2017 with the offence of procuring a child for unlawful sexual activity for which he received a 4 ½ year sentence with a 3 years 4 months and 2 weeks non-parole period. The victim was a 14-year-old girl. Of this offence he said it was more of a lonely thing and he had no friends on the outside and was seeking company. He said he got what he deserved in reference to the sentence. I have referred to the actual release dates for this offending above. I note the facts of this offence at tab 7 of exhibit A show the offender communicating with a 14-year-old girl in much the same manner as the communications of the present offending, though without the more explicit language now used in some of the offending. The present offending based on the number of recipients and the increase in the explicit nature of the language is an escalation. That said in the earlier offending he came closer to an actual meeting, albeit somewhat contrived by the victim's boyfriend.
The report notes that the offender does not have exclusive interest in underage girls, having had relationships with adult females.
Dr Furst considered the medical documentation available including from Justice Health. He notes a drinking history of approximately 5 litres of alcohol per day 5 days a week and 3 litres on the other two days in late 2021 and a 20-year history of drinking between 2 and 5 litres of alcohol a day when not in custody together with the earlier noted drug use. Justice Health also noted the prior history of post-traumatic stress disorder due to childhood abuse, depression and anxiety.
The diagnosis arrived at was of persistent depressive disorder, alcohol and substance use disorder, personality disorder (borderline and avoidant features) and paraphilia disorder (not otherwise specified).
The expression "paraphilia disorder" is an umbrella term to describe sexual irregularity or deviance without necessarily indicating paedophilia and it is perhaps to be assumed that this is a case of paedophilia, though it would assist if it could be clarified, which it is not. It can certainly be said on the evidence that the offender has a history of sexual deviance involving children. It is said there was evidence of sexual preoccupation and the contribution of alcohol or involvement of alcohol was also noted. Significantly, at page 8 it is noted that sexual abuse victimisation is associated with an approximately eightfold increase in the risk of future offending amongst male victims of childhood sexual abuse.
In terms of the risk of reoffending, on the static test the offender was found to be well above average risk. On the dynamic test a total of eight significant dynamic risk factors were identified. Dr Furst's conclusion at page 9 was that overall, considering both the static and dynamic risk factors, the offender's risk is well above the average risk of reoffending. Just how much greater a risk is assessed due to the dynamic testing beyond the static is not stated. In my view, the offender is (in the language frequently seen in Sentencing Assessment Report) able to be described as a moderate to high risk of reoffending. The psychiatrist does try to express it in a percentage way by saying the likelihood of reoffending within five years of release is most likely around 25% with the greatest risk being the first two years after release.
The report concludes by recommending assessment for eligibility for participation in the high-intensity sex offender treatment program in addition to other measures set out at page 9. Those recommendations in my view are well-founded and I would recommend that this report be provided to Corrective Services to assist in the management of the offender.

[18]

Consideration

Section 17A of the CCA provides that there shall not be a sentence of imprisonment unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
In this case the Commonwealth offences are offences which carry minimum sentences as set out in the schedule to s 16AAB. The operation of s 16AAB was considered in the case of Delzotto. The submission of the Crown, accepted by Mr Norrie for the offender was that Delzotto establishes that the approach adopted by the Court of Criminal Appeal is that established in the case of Bahar v R (2011) 45 WAR 100; [2011] WASCA 249 ("Bahar"), and not the approach set out in the case of R v Pot, Wetangky and Lande (Supreme Court (NT), Riley CJ, 18 January 2011, unrep) ("Pot"). That approach is set out at [32] and it was summarised at [24] where it was said (citations omitted): "The Bahar approach involves the sentencing judge having regard to the minimum penalty from the outset as prescribing the bottom of the range of appropriate sentences in the same way as the maximum penalty is used to prescribe the upper limit of the range of appropriate sentences. It follows from the principle that the sentence must be proportionate to the objective gravity of the offence that the mandatory minimum sentence applies as a predetermined baseline for cases which involve the least serious offending."
I note the final line of the quote at [32]: "The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied."
I note the hypothetical in submissions was raised as to whether there could be a case of offending either trivial or touching upon trivial which would escape a four year sentence. Ultimately in this case none of the offences are trivial so it is not necessary to consider that further.
Importantly the adoption of the Bahar approach in preference to the Pot approach means that the way I do not approach setting the appropriate sentences or indicative sentences is to set a term in line with general principles and if the term arrived at is less than four years, then the term becomes four years. As was helpfully put by the Crown, Mr Berents, the entire sentencing regime can be seen to have been lifted up, or put another way the maximum and minimum terms set a ceiling and a floor respectively as described in Bahar itself.
The next issue to address is the submissions made concerning the background of the offender and whether Bugmy principles are engaged. There was no reference to this issue in the written submissions of the offender though in oral submissions there was reference to his background as set out in the report of the psychiatrist with the emphasis being on his long history of drug and alcohol abuse. The submission was that there had been a degree of dysfunction in his youth which I take to be a reference to firstly the physical and sexual abuse suffered at the hands of the teacher and secondly to the very early use of alcohol and drugs that appear to have followed those traumatic events. His depression and personality disorder are also relevant background features.
The submission was that the substance abuse condition diagnosed by the psychiatrist and the condition of paraphilia should be taken into account with reference being made to DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 ("De La Rosa") though with the obvious significant countervailing consideration of the need, as recognised in De La Rosa, to protect the community as a result of such conditions.
In this case the evidence does not make out an environment of childhood deprivation in which abuse of alcohol and alcohol-fuelled violence are endemic, which was the circumstances being considered in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 (as summarised by Bell CJ in Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 ("Nasrallah") at [11]). The point being made in Nasrallah was that although there may be cases in which the degree of deprivation addressed in Bugmy may not exist, that does not mean that in cases where the deprivation was not "profound" that those same circumstances do not have relevance to the sentencing exercise. In the passage from Nasrallah just cited the Chief Justice allowed that there may be a conceptual distinction between the circumstances in Bugmy and a case where a child has been subject to a traumatic event. Bell CJ then notes the authorities which suggest that Bugmy principles are concerned with the impact on sentencing of a history of disadvantage or deprivation but then notes that the boundaries of Bugmy have not been clearly or definitively delimited. The Chief Justice then goes on to note that the consequences of sexual assault including a single sexual assault may be relevant and cited R v AWF (2000) 2 VR 1; [2000] VSCA 172 where it was said at [34] (Chernov JA): "The fact that the appellant was abused as a child was clearly relevant in this case to the appropriate sentencing disposition. That fact bears upon the offender's personal circumstances and thus, goes to the issues of moral culpability and rehabilitation. Obviously, the childhood experience does not excuse the offending conduct. Moreover, what weight is to be given to it is another matter. But that such a factor is relevant to sentencing consideration is, to my mind, clear."
From that same Victorian case, in the judgement of Ormiston JA, it was said that where there is evidence to link an event of abuse to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence should have a smaller part to play in the overall sentencing process, then that condition will have a greater relevance and significance.
In this case the evidence of the abuse suffered is found in the report of Dr Furst, where the offender gave a history of having been abused by the teacher. The reference (although short) at the top of page 8 is to both physical and sexual abuse, suggesting more than one event. There is then the history of the drug and alcohol abuse which follows at a very young age which, although also self-reported, might be expected to follow the traumatic event. It is also supported by the Justice Health medical records which, as noted at page 7 of the report of Dr Furst, contained a prior history of post-traumatic stress disorder due to childhood abuse, depression and anxiety. Again that is a matter of self-reporting to Justice Health at an earlier time but there is at least a consistency there in a case where the Crown does not challenge the offender's assertion, although the Crown did indicate the matter was one for the court to be satisfied of. I am acutely aware that a false story becomes no more true by repetition however in the material before me, given the medical records bearing out a history of prescription for various drugs related to mental health, and the unchallenged history of long-term and significant alcohol and drug abuse and the repeated reporting of the childhood abuse I accept the offender's self-reporting in that regard. I find the offender suffered physical and sexual abuse as a child and this his personal circumstances now and at the time of the offending are per the diagnoses of Dr Furst.
I would also note the judgement of Simpson J in R v Millwood [2012] NSWCCA 2 ("Millwood"). That was a case involving an offender with long-term substance abuse. The offender in that case had parents who were both heroin addicts who neglected the family. At 16 he witnessed his mother die from a heroin overdose, and where the offender failed to resuscitate her despite his attempts. His behaviour degenerated at an early age and he began to use alcohol as well as drugs: see at [24] and 25]. At [69] Simpson J indicated that she was not prepared to accept that an offender with that start in life bore equal moral responsibility with a person who had what might be termed a normal or advantaged upbringing. That was not to say such a person bears no moral responsibility. Simpson J then noted the case of R v Fernando (1992) 76 A Crim R 58 ("Fernando") which predates Bugmy but is to a similar effect and held that consistent with Fernando the offender's background is a relevant consideration calling for some "(although limited)" mitigation.
With respect it appears to me that that is entirely the approach that should be adopted here. This is not what might be termed a "classic" Bugmy case fitting within the factual circumstances described in Bugmy. It is a case of a person who has suffered a significant traumatic experience on, on my findings, more than one occasion and this has led to him having substance abuse issues and also as stated by the psychiatrist renders him a person with an increased risk of future reoffending which I take here to be a reference to offending of a similar type as he is being sentenced for: see at page 8. There is also his depression and personality disorder.
The consequence of this is that I do find that there is lesser moral culpability to be attributed to the offender and that he is a person who is not an ideal vehicle for general deterrence. In line with Millwood however that does not mean that the sentence will not reflect some degree of specific and general deterrence. It may also be that the benefit obtained by the offender due to his lesser moral culpability is counterbalanced in either part or whole of the need to ensure the protection of the community.

[19]

Sections 16A CCA and 474.29AA of the Code

Both parties helpfully went through these provisions. It is not necessary to consider every matter set out in the legislation but only those that are relevant to the present case. In the passages that follow I deal with the matters as raised in the Crown's submissions by reference to the various subheadings in those submissions.
The nature and circumstances of the offending has been considered above in assessing the objective seriousness.
As to the harm suffered by the victim, that has been dealt with above. In my view, whilst there is clear harm to the victim of counts 3 and 5, the sentences for the other offending should reflect that no actual harm has been proven but rather only a potential for harm.
The Crown submissions refer to the mandatory factors of s 474.29AA in respect of all the Commonwealth offending but for count 2. This is a reference to: (a) the age and maturity of the victim or intended victim, which I have taken into account in assessing objective seriousness; (b) whether or not the victim or intended victim was under 10, which is not the case here and (c) the number of people involved in the commission of the offence, which on the facts of this case does not add weight to the sentence.
The offender pleaded guilty in the Local Court. In accordance with the state legislation this entitles him to a 25% discount in respect of counts 10 and 11. The Crown accepts that the pleas to the Commonwealth offences were entered at the first reasonable opportunity and that they resulted in a utilitarian benefit to both the community and witnesses in avoiding the need for a trial.
By section 16A(2)(g) the court is obliged to take the plea into account in sentencing. As was decided in Xiao v R [2018] NSWCCA 4 ("Xiao") the utilitarian value of a plea may be taken into account. The Crown says in this regard that the Crown case was a strong one so that the discount should be one that reflects that. Whilst that is arguably so, if the offender put the Crown to proof of each of these offences there would need to be a significant gathering of evidence and perhaps some difficult facts to establish by way of circumstantial evidence, for example to prove that it was indeed the offender who had sent the messages in question and also to establish his state of mind as to his belief of the ages of the people in question, given that some of the communications, although said to be by people under 16, could be interpreted as arguably being written by somebody else. That is, the mere fact that the age is stated may not equate to establishing the belief of the offender. Further, there is no doubt that the plea has avoided the need for the recipient identified as "Sunflower" to give evidence. Xiao also establishes that it is desirable to specify the amount of discount for the utilitarian value of the plea, and in my view a 25% discount should be applied to the Commonwealth offending.
As to contrition, the guilty plea supports a finding of contrition to some extent, though the material does not extend to express statements of contrition or remorse. The offender did not engage in an interview upon arrest due to concerns about his level of alcohol consumption and he does not assert through the psychiatrist's report any remorse. There is, however, an assertion by him that he "got what he deserved" for his earlier offending in 2017 (also a procuring offence), which suggests some degree of insight into the wrongfulness of his behaviour, at least at that time. Adversely to the offender, that degree of insight, however assessed was not sufficient to lead to a change of behaviour. The view I take in this regard is that there is a level of understanding on the part of the offender that his conduct now being sentenced is wrong, but in line with his psychological features such recognition does not prevent the behaviour concerned.
Next the Crown dealt with general and specific deterrence, adequate punishment and prospects of rehabilitation. I note my finding that there is lesser moral culpability attributable to the offender than would otherwise be the case due to his background of trauma. This does lessen the need for general deterrence by reason of him not being an ideal vehicle for that purpose, and also results in some lesser weight for specific deterrence. That said there remains a need for both general and specific deterrence. The sentence will reflect appropriate weight for both specific and general deterrence tempered by the background factors. Adverse to the offender, the fact this offending occurred so soon after release from custody for similar offending, and with a record of earlier misusing a carriage service to harass, gives a basis for greater weight to be given to specific deterrence, and this has been taken into account.
There is of course the need to ensure the punishment is adequate. The number of offences and the impact of the minimum sentences for nine of the offences, even allowing for the effect of the principle of totality, will mean that the sentence arrived at will be significant and in my view adequate.
As to the prospects of rehabilitation, adverse to the interests of the offender they are not good. There is a somewhat circular argument in this case in that one of the factors relied upon in mitigation is a paraphilia disorder yet that disorder is causative of the offending so that it is somewhat paradoxical to lessen the sentence for conduct which can be described as paraphilia by reason of the person being paraphilic. Nor is there reason for optimism for the offender overcoming his substance and alcohol abuse. It is when the offender is intoxicated that his offending often occurs.
Beyond the factors considered above, in relation to the offender's background his case is not assisted by his character, age, means and physical and mental condition. He cannot be said to be of good character. His criminal record does not assist him. He would appear to be of modest if not meagre means though that has not significantly featured in this sentencing process. In broad terms, based on his background, his means or position in life do not enhance his prospects; there is a distinct lack of community, social, family or other support. Further, whilst there is a lesser moral culpability, there is a heightened need to protect the community.
Lastly I note that there has in fact been an earlier offence under the Registration Act where in 2021 the offender failed to comply with his reporting obligations. Just what he failed to report is not clear; it may simply have been his annual review. I do take it into account however when considering the sentence for count 11.

[20]

Outcome

By the operation of ss 19(5) and (6) of the CCA, it is permissible to set an aggregate sentence for the state offences and to then set an aggregate sentence for the Commonwealth offences where the parole period of the state sentence overlaps the non-parole period of the Commonwealth sentence. I propose setting an aggregate term for the state sentences with a non-parole period and to then set an aggregate term for the Commonwealth offences to date from the expiration of the non-parole period of the state sentences. In the terms of s 19(6), and as required by s 19(7), this is because I am satisfied that structuring the sentence this way still results in sentences that are of a severity appropriate in all the circumstances, and better exposes the reasoning for and determination of the sentences.
In order to determine the aggregate sentences it is first necessary to set the indicative sentences for each of the offences both before and after the discount of 25%.
In respect of the state offences and the Commonwealth offences separately it is necessary to apply the principle of totality and then to also consider totality when viewing the length of the sentence overall, taking into account the overall criminality of all 11 counts and the total of the overall sentence arrived at. The non-parole period of the Commonwealth sentence will also need to take into account the overlapping of the parole period or balance of term of the state aggregate sentence with the non-parole period of the Commonwealth sentence.
Set out below in the table are the indicative sentences both before and after the 25% discount. In respect of count 7 the matter set out in the section 16BA schedule has been taken into account in the way discussed above.
Before doing so there are three final points to make. The first is as to totality. The second is to any comparable sentences. And the third is as to the minimum sentences relevant to the Commonwealth offenses.
As to totality I note s 19 of the CCA, which permits the imposition of concurrent sentences. The Crown's argument is that there should be an appropriate degree of accumulation to reflect the total criminality of the offender's conduct because the seriousness of the offences may vary and the conduct involves people believed to be different by the offender. With respect that submission is in line with the well-known passage of Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] where Howie J said: "In any event 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 so 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.
Here whilst there are two state offences and nine Commonwealth offences there was in fact only one real person involved in the Commonwealth offending. There were six different recipients identified, five of whom are not established as "real", but reflect potential harm, which in my view adds to the overall length of the sentence. Tempering that however is the fact that this offending all occurred over a period of approximately six weeks.
As to comparable sentences the Crown submission is that there is an absence of a body of comparable intermediate appellate authority involving the minimum sentence regime. There has in the course of these reasons been reference to a number of cases where the offending is very similar such as Gifford. Any utilisation of comparable sentences must always be very guarded and all that I take from those matters is that, consistent with the establishing of a minimum sentence to be applied in the way to set out in Delzotto, offending of this type effected in the manner and degree as by this offender attracts substantial punishment, to be determined of course having taken into account not only the objective but all relevant subjective factors.
The third matter referred to above is that of the minimum sentences applicable to the Commonwealth offences. The parties were agreed that once the indicative sentences are set the discount may be applied and if the effect is that the term is less than the minimum sentence then in accordance with s 16AAC, the indicative sentences may be less than the minimum sentence.
Taking into account all of the above and bearing in mind the indicative sentences set out in the table below, after applying the 25% discount to those indicative sentences, and having taken into account the s 16BA schedule matter in respect of count 7, I arrive at an aggregate sentence for the state offences of two years with a non-parole period of 12 months. I find special circumstances due to the chronic need for drug and alcohol rehabilitation and treatment of his paraphilia, which would be aided by a longer period of supervision in the community. At the conclusion of that 12 month non-parole period there shall commence an aggregate sentence for the Commonwealth offences of 8 years with a non-parole period of 5 years. This will mean a total non-parole period of 6 years and an overall head sentence of 9 years. The non-parole period of 5 years for the Commonwealth offences was arrived at to structure a sentence that reflected, in state terms, "special circumstances" for the reasons earlier stated. The minimum amount of time in custody of 6 years reflects the minimum period in custody required to reflect the criminality of the offending. In arriving at these conclusions I have, as stated above, taken into account the maximum and minimum sentences. The length of the sentence reflects the impact of applying the minimum sentence provisions in line with Delzotto. But for that consideration the likelihood is that the overall sentence would have been less. This reflects that the minimum sentence provisions raise the floor of the sentencing regime as discussed above.
I note I have determined the date of commencement of the sentence above to be 16 November 2021.

R v Harford

At a glance

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Judgment (23 paragraphs)

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Cases Cited (17)