Jeffrey Henry is a Canadian national born in 1969. He has pleaded guilty at an early stage to two charges in circumstances justifying a 25% discount for the utilitarian value of the pleas. There is also a matter to be taken into account on the Form 1 which will be dealt with in the way suggested by the Chief Justice in the guideline judgment of the matters (Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146).
The first count to be dealt with is an offence of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 which carries a maximum penalty of 14 years imprisonment with a standard non-parole period of seven years. The second count is an offence of intentionally record an intimate image without consent contrary to s 91P(1) of the Crimes Act 1900 which carries a maximum penalty of three years imprisonment, with no standard non-parole period . A second offence contrary to s 91P(1) is to be dealt with on a Form 1 in relation to that second count.
The purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 have to be considered and the maximum penalty and where applicable the standard non-parole period are important yardsticks in the sentencing process.
He has been in custody since his arrest on 19 June 2020. It is common ground that full time custody is required and that it is unnecessary for me to consider any alternatives.
The agreed facts show that the offender, who was 50 at the time of the offences, was living at Robertson in the Southern Highlands and working at the Robertson Hotel. The victim was a 17 year old girl. About two years before the offences she posted an advertisement on Facebook offering her services for dog walking. About three or four years before the offences, the offender created a fake Facebook profile under the name Lauren Shultz using a profile picture of a young girl. He created the profile to befriend young girls and have sexual relations with them. In January 2020 he used that profile to communicate with the victim.
Sometime before 10 February 2020, he contacted the victim using his personal Facebook profile responding to her dog walking advertisement. The victim provided him with her mobile number and the offender contacted her using his personal mobile number.
On 10 February 2020, a few weeks after the victim started communicating with the fictional "Lauren", the offender contacted the victim via text regarding do walking. He lied to the victim, telling her that he and his partner lived in Bomaderry and that he owed dogs even though he didn't own any dogs. The offender also told the victim that his partner was Lauren Shultz.
By 12 February the conversations between the victim and the offender were progressing to the point where he was proposing a threesome with her, the fictional "Lauren" and himself. He told her that he was a sugar daddy. He was also messaging the victim using the fake Facebook profile which led to the victim eventually blocking Lauren's profile because it made her feel uncomfortable. She unblocked the name and began a new conversation with "Lauren" on Facebook on 18 February.
The offender and the victim ultimately met up at Stocklands at Nowra on the morning of 19 February 2020 and she asked where Lauren was. He told her that Lauren had a hangover and couldn't make it. They went to the Kangaroo Valley pub, he bought her a double vodka with orange juice. He was aware that she was only 17 years old. He then took her to the Robertson Hotel to show the victim his work. He purchased a bottle of vodka and took her back to his house at Robertson. He kept using the fake Lauren profile to maintain the ruse that Lauren was a real person. He poured her four more drinks of vodka and orange which she was drinking quickly. She became intoxicated and passed out. She was still fully clothed
While she was unconscious or asleep due to her level of intoxication, the offender removed her clothing and sexually assaulted by penetrating her vagina with either a double-ended dildo, his fingers or his penis. Notwithstanding Mr Scragg's submissions that I should find that the digital penetration occurred due to his statement to the author of the presentence report, I am not able to be satisfied of the form of penetration and proceed on the basis of the agreed facts, that it was not able to be determined as to which of the three alternatives occurred.. He then took a photo of her lying on a bed wearing a top but no underwear. She was not aware that she was being photographed and she was distressed when she was later shown the photograph by the Police.
He sent a further message to her from Lauren's profile encouraging her to have sex with him.
When she eventually woke up and found herself naked, she began screaming. She was highly intoxicated. She had vomited and urinated on herself and he took her to the bathroom so that she could shower.
The second offence contrary to s 91P to be dealt with on the Form 1 arises out of him taking her photo while in the shower. Three photos were taken.
The offender washed the victim's clothes; in the meantime he gave the victim his own clothes to wear, as well as a g-string belonging to his friend. He asked her to have sex with him a number of times, telling her that he would help her find her phone if she did. She refused. The offender told her that he had already had sex with her twice. She told him that she was not conscious and therefore he had raped her. He responded "No it was consensual"
About 9.30pm he phoned the police and advised that his ex-partner was at his house and was refusing to leave.
The Police arrived and the offender told police, "I'm like her sugar daddy, I pay for things, we slept with each other but it was consensual. I even helped her shower after she threw up and washed clothes for her". Police took the victim to the Police Station and then to Wollongong hospital where a SAIK examination was undertaken.
The next day police attended and spoke to the offender. He said that he had sexual intercourse with her but it was consensual. He said he had sex in his bedroom for an hour and a half or "a couple of rounds". He said he didn't wear any protection, and he didn't ejaculate. He confirmed that Alicia was his sugar baby and he intended to pay her for sex, but said "we didn't actually have full intercourse because I was so drunk that I couldn't get hard".
He then went to the Police Station. He still was not under arrest at this stage and he participated in an interview. He made a number of admissions as to the sequence of events which I have already reviewed. He did say there was no intercourse "because I had so much to drink I couldn't get hard" and then he said, "Did she get a rape kit done?" after saying there was no sexual intercourse. When asked whether there would be any DNA inside Alicia he said, "No absolutely not".
He admitted that he took the photographs of the victim found on his phone and he confessed to police that he created the fake Facebook profile of Lauren three or four years ago in order to meet girls.
The Police conducted a Cellbrite examination on his phone and located the text message chain with the victim and the photographs taken by the offender.
The offender was arrested in relation to the intimate image offences on 26 February 2020. He was conveyed to the Police Station where he participated in another interview. He said "There was no sexual assault, there was no rape, there was no sex, nothing, zero. We'd been through that already. And DNA will prove that there was no sexual assault, no penetration, no semen, nothing, zero." When asked whether she consented to have her photo taken in the shower he said, "Well she didn't say no".
The forensic testing of the victim's SAIK high and low vaginal and vulval swabs detected non-sperm DNA matching the offender. Forensic testing of a double-ended dildo located at his premises returned a positive DNA match for the offender on one end but the other end detected a mixed DNA profile and the victim could not be excluded as a contributor.
Following the positive DNA match he was arrested on 18 June and refused bail.
The offender's record contains the PCA offence in 2011 for which he was given a s 10 bond; a stalk/intimidate and using a carriage service to menace, harass or offend in 2016. The facts of those offences for which he sentenced to a recognisance and a s 9 bond have been tendered and they relate to text messages with a victim.
His subjective case is contained in the Sentence Assessment Report, in a report of a psychologist Mr Reddin and a further report of a psychologist Mr Borenstein. All of those histories are not tested or adopted and are treated with caution as set out in R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144. The Crown takes no point about the reliability of the family background and his history but of course takes issue with some of his statements which are said to exculpatory which have not been tested or adopted.
In short, his family lives in Canada. His parents separated and divorced when he was about five. His mother was said to be abusive and violent. When he was 17 years of age an aunt, an uncle and two cousins were murdered with an axe by a foster son. There is a press report of that incident, which impacted significantly upon him. He was educated to year 10.
His first marriage ended after 10 years. He came to Australia in 2002 and met his second wife. He has an 11 year old daughter but he has not seen her since 2018. He has been working regularly at the Robertson Hotel. He was treated for cocaine dependency in Canada in 2002, and drug and alcohol treatment in 2018 following his offences in 2016.
He had been consuming significant amounts of vodka and beer regularly since 2010 and drinking particularly large amounts in the last three years leading up to the offence. He has completed programs while in custody and has been sober.
He expressed guilt and remorse and empathy to Mr Borenstein and to the author of the Pre-sentence Report, notwithstanding that he minimised his sexual offending towards the victim. He had claimed to the author of that report that she was conscious and consenting but Mr Scragg withdrew those assertions this morning. He was assessed as being at a high risk of reoffending and suffering an alcohol use disorder, currently in remission but he clearly needs treatment for alcohol abuse and he has expressed a willingness to engage in rehabilitation programs.
The presentence psychology report sets out in some detail the recommendations for community and custodial based specialist treatment options which should be pursued.
Turning to the helpful written submissions from the Crown and Mr Scragg for the offender, the Crown notes that the agreed facts show penetration of her vagina with his penis, a double-ended dildo or his fingers, whereas the offender admitted to penetrating her vagina with his penis to the Police but not ejaculating; and admitted digital penetration to the author of the sentence assessment report and either of those are consistent with the presence of his DNA in the vaginal swabs.
As to objective seriousness, there was a high degree of planning to orchestrate a meeting with the victim including the creation of a fake Facebook profile, the relative age of the offender being 50 and the victim being 17 who had offered work, money and wanted to share her love of dogs. He exploited her vulnerability when he be-friended her on social media. He continued to communicate with her via a fake profile.
Once he had brought her back to his premises he provided sufficient alcohol to her to cause her to pass out. He removed her clothing without her knowledge or consent and he had intercourse with her when she was in a state where she was incapable of consenting. He further exploited her vulnerable state by committing the second offence.
At the time of the offence she was a remote location in Kangaroo Valley at his home. Any intoxication, of course, on the part of the offender is not a mitigating factor. I accept that the circumstances of the offence involved a high degree of exploitation. I accept that the offending is around mid-range in light of those factors.
As to the intimate image offences, he took photos of the victim firstly while she was in an unconscious state, which displays a high degree of exploitation. Her clothes were removed and she was posed by the offender, exposing her genital area. The second set of images were taken while she was attempting to shower. The photos show her compromised state of wellbeing. They are below the mid-range in my view.
The principal area of debate in the submissions is an assertion by Mr Scragg that there should be a discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 and/or what is referred to as an Ellis discount (R v Ellis (1986) 6 NSWLR 603) by reason of the fact that the only evidence of sexual intercourse are admissions made to the victim and to the police. He submits that the Crown could not prove its case on the 61I offence by DNA evidence alone, suggesting that it was problematic as the victim had slept in his bed, he gave her clothing to wear including a G-string and he gave her a towel to dry herself and any one of these events could have transferred DNA, quite apart from the fact that she was in his home. He asserts that but for his admission there was no case on the s 61I offence.
As s 23 applies to Ellis discounts, as the Court has recently pointed out in Buckley v R [2021] NSWCCA 6, the Court must state the nature and extent of any reduction of the sentence which would have otherwise been imposed, absent that disclosure of guilt and quantify the discount separately. Mr Scragg submits that s 23(2)(b) and (d) are the avenues for the discount in this case. Mr Scragg's optimistic submission is that there should be a 25% discount for the Ellis and s 23 considerations, acknowledging that that is for all intents and purposes the limit for discounts of this nature. The Crown asserts that there should be no discount under s 23 because there was a significant quantity of evidence independent of his claimed admissions including:
Evidence from the victim that she passed out on his bed fully clothed and she woke naked on his bed;
Evidence from the victim that she hadn't consented to intercourse and hadn't been in a state where she was capable of consenting;
Evidence that she awoke, had a shower and he took photos of her without her consent and while she was in a groggy state.
His admission to her of taking photos of her while she was unconscious showing her in a compromised and unconscious position during the period of sexual assault.
That he had asked her for sex, and told her that he'd already had sex with her twice.
That he had called the police to get the victim away from his property and admitted sexual intercourse with her;
That she underwent a sexual assault medical examination which led to the DNA being located inside her vagina. The Crown submits there is no conceivable rational possibility of secondary transfer of DNA from the bedding or clothing;
Finally, the sexualised conversation with the offender to the victim prior to the offence over social media.
The Crown submits that his statements to Police were inconsistent and unhelpful and rather than assisting them he repeatedly lied.
I acknowledge the merit in both sides of this debate, and can conceivably see some argument that the DNA found on the swabs may not have been sufficient to prove the Crown case. In my view, a modest discount of 5% in addition to the 25% allowed for the utilitarian value of the pleas should be applied to the s 61I count.
I take account of his limited record and that the earlier offending, although not as serious as this, shows that it is not entirely out of character for him. I accept that his prospects of rehabilitation are guarded, particularly in the light of the assessment that he had a high risk of reoffending. Hopefully with the programs proposed by the psychologist while in custody and on his release on parole, that risk will be moderated to some extent.
Although, as I have indicated, he has expressed remorse recently to authors of reports, and those expressions have not been tested, they are qualified to some extent as the Crown submits that his acknowledgments of harm to the victim were belated, prompted and not readily forthcoming. As indicated in the statements which have now been disavowed by his counsel this morning, he continued to assert up until recently that he had consensual intercourse with the victim.
I accept that there is a basis for a finding of special circumstances given that this is his first time in custody and his need for rehabilitation and treatment for longstanding addictions.
There should be a modest degree of accumulation in the sentences given the separate criminality involved.
The orders I make are:
1. The offender is convicted of each offence.
2. Taking into account a total discount of 30% (25% for the plea of guilty, and 5% for assistance) on the first count, the indicative sentence is 2 years and 10 months.
3. Taking into account a 25% discount for the pleas of guilty on the second count, 1 year.
4. I impose an aggregate sentence of 3 years and 2 months commencing 19 June 2020.
5. I impose a non-parole period of 22 months expiring 18 April 2022.
6. I find special circumstances.
Note - These extempore remarks were revised without access to the court file.
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Decision last updated: 30 April 2021