R v Howard

General principles of sentencing for Commonwealth offences

1. Ultimately, the Court's task is to impose a sentence "that is of a severity appropriate in all the circumstances of the offence", having considered and specifically taken into account the non-exhaustive list of matters in s 16A(2) of the Crimes Act 1914 (Cth) ("Crimes Act") that are relevant and known to the Court.
2. Section 17A mandates that a Court must not pass a sentence of imprisonment, unless satisfied that no other sentence is appropriate in all the circumstances of the case. At the same time, s 20(1)(b)(ii) creates in this type of offence a presumption in favour of full-time imprisonment. There is an apparent tension between the two provisions which must be resolved by giving s 20(1)(b)(ii) priority, meaning that consideration commences with a presumption in favour of a term of full-time imprisonment, which presumption is only rebutted upon a finding of exceptional circumstances. At that point, s 17A becomes applicable. The combined statutory intent is clear. There is an expectation created by statutory presumption that some period of actual imprisonment will be served other than in exceptional circumstances.

Maximum penalty

1. The maximum penalty is 15 years' imprisonment. This serves as an indication of the seriousness with which Parliament views this offence. It also serves as a yardstick for sentencing and a basis for comparison between the case before the Court and the worst case. Courts must have regard to the maximum penalty and determine the degree by which the Offender's conduct offends against the clear legislative objective of targeting adult Offenders who exploit the anonymity of telecommunications services to win the trust of a child as a first step towards the potential sexual abuse of that child, without losing sight of the fact that the communication itself is almost certainly damaging to a child.

Principles relevant to sentencing for procuring offences

1. The high-level factors of significance to which regard must be had when sentencing for online child exploitation offences, of which this is an example, include: 1. There is a paramount public interest in promoting the protection of children, given their vulnerability online and the need to protect them from sexual abuse by predators using electronic facilities. This is also because such offences appear to be becoming increasingly prevalent with the advent of the internet as a means of allowing predators to use the internet anonymously to forge relationships with children as a first step to luring them for sexual abuse. Appropriate weight must accordingly be given to general deterrence. 2. It must be recognised that there is an intrinsic harm caused by sexual offences towards children. 3. Where general deterrence is of such significance, personal mitigatory factors such as prior good character, age, and prospects of rehabilitation are often given less weight than might otherwise be given. 4. Beech-Jones CJ at CL in Lazarus v R [2023] NSWCCA 214, at [4], explained that the significance of general deterrence was not overturned by the decision in Totaan v R (2022) 108 NSWLR 17. His Honour said that the instinctive synthesis process in Markarian v The Queen (2005) 228 CLR 357 is not something that requires equal weight be attached to all sentencing factors and is not authority for the proposition that appellate courts cannot develop general principles concerning the approach for sentencing particular offences or classes of offenders. 5. Specific deterrence, denunciation and punishment are also important: R v Burdon; Ex parte Attorney-General (QId) (2005) 153 A Crim R 104 ("Burdon") at [108]. 6. While the presumption of harm does not arise where there is no victim, as in this case, where the recipient of the communications is an undercover police officer, that does not lessen the seriousness of the offending. As was stated in R v Gajjar (2008) 192 A Crim R 76 ("R v Gajjar") at [56], after referring to several authorities: "…the legislature viewed conduct of this kind as deplorable. The legislation creating this offence had been introduced as a measure against 'an increasing trend' of paedophiles using the internet as a means of accessing children, and thereby grooming them for subsequent sexual offending. An Offender's conduct was to be regarded as no less morally reprehensible merely because the person to whom the communication was made was, unbeknown to him, an undercover police officer."
2. Specific factual factors that have been considered relevant in assessing the objective seriousness of offending in various cases involving the online grooming of children include: 1. The number, length, and type of conversations between the Offender and victim. 2. The frequency of conversations and the level of persistence shown by the Offender. 3. The nature of any sexual material communicated. 4. The extent to which the intent to future activity with the Offender is exposed and developed. 5. The nature of the sexual activity suggested. 6. Whether any inducements were offered, including alcohol or money, or whether any threats were made. 7. Whether the victim was a real person, although cf. R v Gajjar. 8. Any age or power differential between the victim and the Offender. 9. The Offender's level of awareness and deliberateness in the communications. 10. The planning and sophistication involved in the offence, including any steps taken by the Offender to protect their anonymity.

Nature and circumstances of the offending: s 16A(2)(a)

1. The nature and circumstances of the offence is set out in a detailed Agreed Statement of Facts ("Agreed Facts"), which forms part of Exhibit A. I do not propose to recite those facts in detail.
2. In summary, the Offender used 'Teen Chat' to communicate with an Assumed Online Identity ("AOI") purporting to be a 13 -year-old girl. Between about 1 March 2023 and about 2 June 2023, the Offender engaged in sexualised communications with the AOl. He believed he was communicating with a 13-year-old girl.
3. In particular: 1. The Offender was told, at the outset and repeatedly throughout, that he was communicating with a 13- or 14-year-old girl. The Offender made express reference to the age, for example, "u happy at 13 to be naked for me at my house"; 2. The Offender was frequently reminded of the girl's age and sexual inexperience, and he sought to "teach" her "how to have sex with me"; and 3. The Offender introduced sexual topics and was persistent in his requests to meet for sex, including offering to book a hotel for the meeting to occur. The Offender repeatedly asked if the AOI would go to his house to "get fully naked" and asked if she would "make love to me in your school uniform"; 4. The Offender was aware of the criminality of his conduct, repeatedly asking the AOI to not tell anyone including family, friends and police about their communications.
4. The Crown has reminded me that s 474.29AA of the Criminal Code Act 1995 (Cth) ("Criminal Code") requires certain mandatory factors be taken into account in sentencing an Offender, namely: 1. The age and maturity of the victim or intended victim of the offence. 2. If the victim or intended victim of the offence was under 10 when the offence was committed - that aggravates the seriousness of the criminal behaviour to which the offence relates. 3. The number of people involved in the commission of the offence.
5. There were only two people involved here. However, as I have said, it is a very important fact that the Offender believed the person he was communicating with was aged 13 at the time of the offending. The sentence imposed must take into account the age and maturity of the intended victim of the offence. This is so notwithstanding that there was no 13-year-old on the other end of the conversation.
6. The Offender accepts that offences of this nature are unquestionably serious, but submits there is nevertheless varying degrees of seriousness with respect to the range of proposed sexual activity between sender and recipient for offences of this kind: Tector v R [2008] NSWCCA 151, Hall J at [95].
7. It is submitted on behalf of the Offender that the offending falls below the mid-range of objective seriousness for the following reasons: 1. The communication that took place did not involve threats, pressure, or psychological coercion that is often present in such offences; 2. There is no evidence that the age or power differential between the Offender and the victim had any role in the offending, particularly in the context of a police officer 'role-playing', it would be artificial to take any such factor into account; 3. The recipient was only susceptible to act in the way described by the Offender because of his role as an investigator with NSW Police. The recipient in this matter was an assumed identity as opposed to a real person. In Burdon, McMurdo P held at [108]: "As in Campbell and Kennings, there was no real victim in this case and the sentence imposed cannot be as severe as if he physically carried out his suggestions made over the internet. Nevertheless, denunciation, just punishment and special and general deterrence are important factors in determining sentences in cases like this". 1. There was no level of planning or sophistication to the Offender's conduct. He utilised his own IP address, identified himself by his correct age in the course of conversations, and even used his own name; 2. The Offender made no attempt to conceal and/or mislead the recipient as to his identity. This contrasts from other cases where the sender will engage in subterfuge as to their identity, which in turn makes their detection by authorities more difficult; 3. The suggested meeting, while it is conceded involved a communicated proposal of 'sex' and 'kiss and hug' was not sophisticated or detailed. The communicated proposals did not escalate from less serious conduct to more serious suggestions which is often seen in offences of this type; and 4. There was no monetary inducement offered by The Offender to garner the trust and affection of the recipient.
8. It is emphasised by the Offender that it was impossible for him to actually commit the offence discussed, because the person he was engaging in sexual activity with was not a child but an assumed identity.
9. I am not at all sure that submission has any merit. Such impossibility does not preclude the Offender being charged or provide a defence to the charge. The Offender submits that it must sound in a finding that the objective seriousness is at the lower end of the range. The Offender says it is appropriate to take this factor into account in assessing the objective seriousness, as opposed to referring to it as a mitigating factor.
10. The Offender's ultimate submission is that the combination of all these factors supports a finding that the offending falls below the midrange of objective seriousness.
11. On the other hand, the Crown submits that the facts disclosed represent a "moderately serious example" of an offence of this type, having regard to the fact that it was the Offender who initiated the contact, the Offender believed at all times that he was communicating with a 13-year-old girl, he introduced sexual matters into the communication and was reasonably persistent in his requests to meet for sex including offering to book a hotel, he understood that there was a very significant age discrepancy between him and the person he assumed was a 13-year-old girl, and offered to "teach" her "how to have sex with me". Finally, the Crown emphasises that the Offender was clearly conscious of the criminality of his conduct because he repeatedly asked the AOI to not tell anyone about the activity.

Resolution as to objective seriousness

1. Taking into account all the matters identified by both the Crown and on behalf of the Offender, I consider that the offending here falls somewhere around the mid-range of offending of this type.
2. The fact that the victim was not a real child, but rather a police officer impersonating a child, is largely irrelevant to this question. The simple fact is that the Offender believed that the person he was communicating with was a 13-year-old child. The fact he was wrong about that is, to my mind, irrelevant to the objective seriousness of the offending. This was made reasonably clear in R v Gajjar, where it was emphatically stated that the conduct was to be regarded as no less morally reprehensible merely because a person to whom the communication was made was, unbeknown to the Offender, an undercover police officer. The remarks in Burdon relied on by the Offender are not to the point. It is true that the suggestions made were not carried out, but if they had been that would constitute another (other) serious offence(s). The offence of procuring is complete, regardless of ultimate success. I do not consider the fact that the person receiving the messages was not a 13-year-old girl to be relevant to the question of objective seriousness.
3. Nonetheless, the offending was incredibly unsophisticated, clearly not planned, and no attempt at all was made by the Offender to conceal his identity. It is also true that no threats or coercion was used, nor was any money or other inducement offered. Moreover, to the extent that I am satisfied that the Offender moral culpability is reduced because of his cognitive impairment and mental health issues, this can be relevant to the question of objective seriousness. For reasons I will come to I have taken those matters into account for the purpose of any assessment of the objective seriousness of the offending as well as in the Offender's subjective case.

A plea of guilty: s 16A(2)(g)

1. The Offender entered a plea of Guilty in the Burwood Local Court following a case conference. Whilst no percentage is mandated in Commonwealth legislation, as is the case in the State regime, I can see no reason not to afford the Offender a 25% reduction of what would have been the penalty.

The character, antecedents, age, means and physical or mental condition of the person: s 16A(2)(m)

1. The Offender, who is 53-years-old, presents with a strong subjective case. The starting point is that he has no relevant criminal history.
2. Most importantly, all of the mandatory considerations of s16A(2)(m) and the ultimate sentence fall to be assessed through the prism of the Offender's intellectual disability and complex psychiatric and medical conditions. These mental conditions and intellectual disabilities are significant and include: 1. Borderline intellectual disability; 2. Attention deficit hyperactivity disorder; 3. Pervasive developmental disorder; 4. Generalised anxiety disorder 5. Major depressive illness 6. Bipolar disorder
3. His physical health conditions include Crohn's disease, diabetes mellitus, gastro-oesophageal reflux disorder and arthritis.
4. I have read the following reports tendered in the Offender's case: 1. Report of Dr Tony Mastroianni 2. Report of Satish Dayalan 3. Report of Dr Amanda White
5. The Offender has a diagnosis of a reasonably significant, albeit borderline, intellectual disability since his childhood, attention deficit hyperactivity disorder, pervasive developmental disorder (an umbrella category that comprises autism spectrum disorder and other related disorders), and comorbidly significant mental health impairment, including Generalised anxiety disorder, Major Depressive Illness, and Bipolar disorder (on a background of a strong genetic disposition to Bipolar disorder due to a family history in both his father and paternal grandmother.)
6. Dr Mastroianni states that the Offender's engagement with online chatlines appears to be a maladaptive coping mechanism associated with extreme anxiety around significant events such as the death of his mother and later his father, COVID, the Offender's physical health conditions including immunotherapy for Crohn's disease, and his online relationship with Tamika, another intellectually disabled person which subsequently ended.
7. Dr Mastroianni also opined that periods of physical ill-health have had the effect of unsettling the Offender's mental health and have made him regress in behaviours.
8. Dr Mastroianni notes that in the context of his arrest and charging, the Offender was acutely suicidal, indicative of his level of shame in his conduct.
9. Dr Dayalan endorses a diagnosis of borderline intellectual functioning, autism spectrum disorder, attention deficit disorder and bipolar affective disorder type 2. Dr Dayalan considers that the Offender's borderline intellectual functioning contributed to impairment in his judgement at the time of the offence and stress associated with relationships and his physical health would have exacerbated mood instability associated with his bipolar disorder.
10. On the basis of Dr Dayalan's report, it is clear enough that the Offender's depressive illness around the time of the offending materially contributed to his offending.
11. As was emphasised in Moiler v R [2021] NSWCCA 73 at [59] (per Button J): "Care should be taken not to take too prescriptive an approach in a process of instinctive synthesis, whereby mitigating features such as mental illness or cognitive impairment are thought to require establishment as the direct or precipitating cause of an offence before they can operate to reduce the appropriate sentence".
12. As I have said, general deterrence usually plays a significant role in the sentencing process for offences of this kind, see R v Asplund [2010] NSWCCA 316 McClellan CJ at CL [50]: 'the offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity".
13. However, the role of general deterrence is significantly moderated in circumstances where the Offender has suffered from a persistent depressive disorder, which I do think contributed to his offending: see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; R v Israil [2002] NSWCCA 255; and R v Mueller [2015] NSWCCA 292 ("Mueller").
14. Because of his mental conditions the Offender is not, in my opinion, an appropriate vehicle for general deterrence: see Mueller.
15. The issue of the Offender's moral culpability is an important one in this sentencing exercise. The mental conditions suffered by the Offender are relevant, both individually and cumulatively, to my assessment of the Offender's moral culpability for his offending.
16. I find that the moral culpability of the Offender is significantly reduced, relative to other Offenders in respect of whom there is no cognitive impairment.
17. The question of reduced moral culpability may be taken into account when assessing the objective seriousness of the offence, given that moral culpability is a relevant consideration in making that assessment: Tepania v R [2018] NSWCCA 247 at [71], [112], [121] - [123]; BM v R [2019] NSWCCA 223 at [15]. See also DS v R; DM v R [2022] NSWCCA 156.
18. The Offender has submitted here that his reduced moral culpability sounds in a finding that the objective seriousness falls in the low-range. I have already determined, taking into account the Offender's mental health, that the objective seriousness of the offending is towards the mid-range. Perhaps more importantly, I consider the Offender's mental and physical conditions to be significant as part of the Offender's subjective case. They also have a significant part to play in my assessment of his prospects of rehabilitation and ultimately, the question of an appropriate sentence.

The Offender's prospects of rehabilitation: s 16A(2)(n)

1. In my opinion, the Offender has good prospects of rehabilitation and therefore of not reoffending, noting extensive and appropriate interventions are in place. Dr Amanda White says at p16-18 of her report: "Mr Howard currently has significant protective factors in place to mitigate his risk of sexual based reoffending. He has no access to the internet unsupervised. He is compliant with anti-androgen medication that is, according to all reports, suppressing sexual urges and related behaviours. He has stable, long-term co-ordinated supports and comprehensive wrap-around services. He is well connected to mental health services and has stable living arrangement and daily social contact through his team, who are all aware of his behaviour and work together to support Mr Howard. He is forthcoming about his behaviour and actively seeking assistance with same. He has some insight and awareness into his behaviour, although this requires further development and reinforcement, and is likely limited by his cognitive capacity. He does not present with features suggestive of systems of belief or values consistent with sexual violence. He does not present with general antisocial values or attitudes. He is compliant with and actively motivated to engage in treatment and supervision. He has no substance use issues. The prospect of a legal consequence, and particularly gaol, is a significant deterrent for Mr Howard and a strong motivator to not reengaging in previous behaviours. While such intensive support and measures are in place and effective, his risk of sexual reoffending is significantly reduced and considered to be relatively low. Importantly continuation of anti-androgen medication and no unrestricted access to the internet are the most pertinent measures in reducing his risk of reoffending and repeating previous patterns of behaviour of engaging in online chat services with underage persons. If these interventions are relaxed or removed, his risk of reoffending is expected to increase accordingly."
2. The Offender enjoys good support via the NDIS, a team of medical professionals, and his family. He has acknowledged his offending was wrong and he has taken positive steps to stop it happening again. He has continued to engage with his treating doctor, Dr Tony Mastroianni, and has complied with mood stabiliser medication and anti-libidinal medication prescribed. This treatment appears to be successful.
3. I am satisfied that the Offender's prospects of rehabilitation are good. I consider it highly unlikely that he will reoffend.

General and specific deterrence/Adequate Punishment: s 16A(1) and s 16A(2)(j)-(k)

1. It is important that, when stepping back and considering an appropriate sentence for any offence, that the need for adequate punishment for breach of the criminal law is not lost sight of.
2. In cases of this nature, notwithstanding the Offender's powerful subjective case, the need for general deterrence remains significant. However, as I have explained, that need in this case is mitigated by the reduced moral culpability of the Offender.

Presumption of actual imprisonment: s 20(1)(b)(ii)

1. The offence is a 'Commonwealth child sex offence' as defined in the Crimes Act. Section 20(1)(b)(ii) of the Crimes Act provides that, if a Court determines to sentence a Commonwealth child sex Offender to imprisonment but releases them on a recognizance release order, there is a presumption that they will serve some period of actual imprisonment unless there are exceptional circumstances that justify the Offender being released immediately on a recognizance release order and only if the sentence in totality is less than 3 years.
2. This amendment to the legislation was intended to ensure that "child sex Offenders receive sentences that reflect the exceptionally serious nature of their crimes". This presumption applies in relation to an order made on or after 23 June 2020 when sentencing a person in respect of an offence committed on or after 23 June 2020 and is therefore enlivened in the present sentencing exercise.
3. In R v Bredal [2024] NSWCCA 75, Dhanji J considered the meaning of "exceptional circumstances" within s. 20(1)(b)(iii) and, noting it was not defined, he said: "Citing Cornhill CJ in R v Kelly (Edward) [1999] 2 All ER 13 at [20]: "To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered" at [60]; "A combination of factors, each not in itself exceptional, may in combination demonstrate that the circumstances of the case are exceptional: [citations omitted] The factors that combine to make a particular case exceptional will all be factors relevant to the determination of sentence more generally. The purposes of sentencing will remain at the forefront. It is the impact of the particular factors on those purposes that will make the case either exceptional or unexceptional" at [61]; and "The term "exceptional" used in its present context thus requires the circumstances to be sufficiently "exceptional" such that, despite a period of imprisonment being required, the Offender should not be required to serve any part of that sentence in actual custody. While a finding in relation to exceptional circumstances is a step in the sentencing process (after determining the s 17A threshold has been crossed, and determining the length of the sentence), the instinctive synthesis remains engaged" at [63]."

Mandatory Conditions to Attach to a Recognizance Release Order for Child Sex Offenders

1. Section 20(1B) of the Crimes Act requires that a court making a recognizance release order for a child sex Offender must attach certain conditions to the order. This differs from the requirements for other Commonwealth offenders who, although they must comply with the general condition to be of good behaviour, may or may not be subject to conditions.
2. Section 20(1B) provides that: (1B) If at least one of the offences the person is convicted of is a Commonwealth child sex offence, the court must specify under paragraph (1)(b), as mentioned in subparagraph (1)(a)(iv), the conditions that the person will, during the specified period: (a) be subject to the supervision of a probation officer appointed in accordance with the order; and (b) obey all reasonable directions of the probation officer; and (c) not travel interstate or overseas without the written permission of the probation officer; and (d) undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

ResolutioN

1. The simple fact is that the Offender is reasonably significantly mentally impaired. I am satisfied that this diminished mental capacity, together with his depressive illness at the time, were significant contributing factors to the offending.
2. Since the offending, the Offender has shown real insight, remorse, and a determination to not let such conduct happen again. He has voluntarily undertaken a significant degree of medical supervision and has complied with a treatment program which appears to be succeeding. In that regard, I accept Dr Amanda White's opinion, an extract of which I have set out at paragraph [41] of these reasons.
3. I am satisfied that the chances of the Offender reoffending are extremely low, taking into account that treatment plan and the strong support he has from medical professionals and his family.
4. Section 17A of the Crimes Act commands that a Court shall not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in all circumstances of the case. However, s 20(1)(b)(ii) presumes a sentence of actual imprisonment for Commonwealth child sex offences and provides that, even if a term of imprisonment is imposed, release on a recognizance release order can only be ordered without some period of actual imprisonment being served, unless there are exceptional circumstances to justify immediate release.
5. Because the Offender has already served one days' imprisonment and any sentence of full-time imprisonment would be backdated to count that day, perhaps the need for a finding of exceptional circumstances is not required. Nonetheless, I am satisfied that the circumstances of the Offender are exceptional for the reasons I have already sought to explain, but also because I believe his mental and physical health is such that it would be very difficult for him to survive any significant time in custody, and if he did, the effect on him would be much worse than on a person without his disabilities.
6. I am acutely conscious of the need for the courts to send a consistent message of general deterrence to the public. Crimes of this nature are morally repugnant and represent a significant and serious breach of the criminal law. Ordinarily, offenders can expect stern punishment involving significant periods in custody.
7. Nonetheless, in all the circumstances, I have determined that the appropriate order is an order under s 20(1)(b)(ii), and that taking into account the discount for the plea of guilty, an appropriate term of imprisonment is 2 years to commence yesterday.
8. I propose to make such an order, but to wholly suspend that sentence and order the immediate release of the Offender on a recognizance release order with conditions.

Orders

1. I make the following orders: 1. The Offender is convicted. 2. Taking into account the plea of guilty and all other relevant considerations, the Offender is sentenced to imprisonment for a period of 2 years commencing 31 October 2024 and expiring 30 October 2026. 3. Order, pursuant to s 20 of the Crimes Act 1914 (Cth), that the Offender is to be immediately released upon a Recognizance Release Order, in the amount of $2,000, without surety, for 2 years expiring on 30 October 2026, on the following conditions. That the Offender: 1. Be of good behaviour; 2. Be subject to the supervision of community corrections for a period of two years; 3. Obey all reasonable directions of his Community Corrections Officer, including not to travel interstate or overseas without the written permission of his Community Corrections Officer; 4. Not use the Internet unless supervised by his treating team, including his disability support workers and/or his brother Matthew; 5. Continue to engage with Dr Mastroianni on a weekly basis or as otherwise directed and accept any direction made by him as to medication; 6. Continue to take anti-libidinal medication as prescribed by his doctor(s); 7. Continue to take mood stabiliser and antidepressant medication as prescribed by his doctor(s); 1. Order that, pursuant to s 23ZD of the Crimes Act and upon the application of the Director of Public Prosecutions, the following items are forfeited to the Commonwealth: 1. Lenovo Laptop (NSW Police Barcode No. X003062850) 2. Samsung Galaxy S8+ (NSW Police Barcode No. X0003062851) 3. Dell PC (NSW Police Barcode No. X0003062856)

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: 05 November 2024