Mr Bickford (Counsel for the Offender)
File Number(s): 2020/216731
[2]
Judgment
Garry Jones, born in 1963, and has never been charged with any offence before he was arrested on 23 July 2020. He was charge with using a carriage service to procure a person under 16 years for sexual activity between 23 June and 23 July 2020 contrary to s 472.26 of the Criminal Code (Cth). The offence carries a maximum penalty of 15 years imprisonment.
He spent 141 days in custody before being released on strict bail conditions.
He is to be dealt with on a s 16BA schedule for a similar charge in the period between 17 and 22 June 2020.
The ultimate submission by Mr Bickford of counsel for the offender, is that the term of imprisonment of slightly in excess of four months that he has already served should be an appropriate term before his release on a recognizance order. I accept that submission for the reasons that will follow.
The offending was uncovered by New South Wales Police attached to the State Crime Command Child Exploitation Intervention Unit, who commenced a covert online investigation utilising assumed online identity (AOI) of a 14 year old girl.
The offender had posted an ad on a website titled "Genuine Daddy for Real Female 53". The facts set out a lengthy set of extracts of the correspondence between the offender and the AOI in relation to both the schedule offence and the principal offence.
In short, the facts are sufficiently summarised in the Crown submissions, as follows, after posting the initial ad on the website, the offender was told that he was conversing with a 14 year old girl and this was repeated through their conversations. He would have been aware that there was an age difference of approximately 49 years between himself and the AOI. He was persistent in his conduct with her, occurring over the period between 23 June and 23 July.
He communicated with her on various platforms and the offending covered seven communications involving 100 messages exchanged over that period, of which six were initiated by the offender.
The s 16BA schedule offence covers 30 messages sent by the offender over the period between 17 June and 22 June. In relation to that offenc, despite being aware of the AOI's lack of sexual experience, the offender sent an image of his erect penis which demonstrates his sexual arousal. He continued to emphasise the need to keep communications secret, escalated the discussion of sexually explicit topics with explicit reference to an intention to engage in sexual activity, stating that he would teach her how to engage in sexual activity. He told her that he had had a vasectomy and therefore she would not get pregnant, and he offered her $100 to engage in oral sex with him in his car. Those matters, of course, as Mr Bickford points out, do not go to the assessment of objective seriousness of the principal offence.
At about 10am on 23 July, investigators attended the address that had been provided by the AOI at Westmead. They saw the offender driving into an underground car park. He was arrested and cautioned. He was found to have a Viagra tablet and $100 in his wallet. He was arrested and taken to the police station where he participated in a record of interview. He made admissions to being the author of the communications and to sending photographs of his erect penis. He said at first he thought he was dealing with an 18 year old who had just got a little bit excited, and he confirmed that he understood that a 14 year old is a child and unable to consent to sexual activity. He said that he knew it was wrong and he was probably hoping like hell it was a 30 year old just having some weird fetish. He said it was his fault that he continued the sexualised conversations with people who say they are 14 and he said, "I should just every time someone says, 'I'm 14,' you know, delete." He said in evidence today that he honestly thought he was dealing with an adult who was playing games because it had happened to him before.
The offender gave evidence today and, although he was appropriately cross-examined at some length by the Crown Prosecutor, I accept his evidence without hesitation. It was given in a heartfelt and compelling manner and he displayed emotion on several occasions in describing the traumatic experience of his period in custody and in acknowledging his shame and remorse at what he had done, given his recognition that the person he was dealing with could really have been a 14 year old and that was the tragedy of the whole episode.
He affirmed the history set out in two reports of his treating psychologist, Mr Awit, who gave evidence and was cross-examined by the Crown Prosecutor today. They have had some 15 therapeutic conversations or consultations over the period since the initial contact. Amongst the matters taken into account by the psychologist are the treating General Practitioner's reports which show a diagnosis of depression and prescription of antidepressants as far back as 2014, as well as other comorbidities, as Mr Bickford describes them, hypertension, polymyalgia rheumatica and a significant regime of medication for those conditions, as well as for type 2 diabetes.
The diagnosis proposed by Mr Awit, which led him to the opinion that the offender's decision-making ability was impaired at the time of the offence and played a part in the process leading to the offence, was challenged by the Crown.
However, Mr Bickford refers to the relevant passages from DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 and Barbieri v R [2016] NSWCCA 295 and in particular from what was said by Hamill J in Luque v R [2017] NSWCCA 226 as to the approach a sentencing judge should take to dealing with an offender's mental condition, namely at [114] - [116],
The first is that a sentencing Judge dealing with evidence of an offender's mental condition or intellectual impairment ought not to approach the task in an unduly technical or restrictive way. The issue to be determined is not the same as deciding the issue of causation in a civil case. The issue is whether the fact of the disorder mitigates the punishment that ought to be visited upon the offender. In one respect, this involves an assessment of whether the moral culpability of an offender is reduced because their mental condition contributed directly or indirectly to the commission of the offence. In other respects, the impact of an offender's mental condition is not conditional upon any link (causative or otherwise) between the condition and the offending. For example, the condition may mean that the offender is not an appropriate vehicle for a sentence containing a large component of general (or specific) deterrence. Further, incarceration may be more onerous as a result of an offender's difficulties. Those matters do not require the judge to find any link or connection between the condition and the commission of the crimes.
The second matter is that an offender who relies on evidence of psychiatric issues as a matter of mitigation is not setting out to establish a defence of mental illness or substantial impairment and is not required to prove that they did not understand what they were doing, or that they did not know that what they were doing was wrong. The part of the sentencing judgment cited by Button J at [63] comes perilously close to imposing such a burden on the applicant.
The third matter is that the circumspection with which a sentencing Judge may treat self-serving (hearsay) statements made by an offender to an expert witness ought not to equate to a devaluation of the opinion provided by the expert. Nor does that circumspection necessarily apply to the psychiatric history provided to the expert. That is particularly so where, as in this case, there is a substantial body of evidence to corroborate the history provided. As the judgment of Button J shows there was cogent evidence in various forms establishing both a sad history of mental health issues and a connection between that history and the applicant's criminal conduct. Allsop P (as his Honour then was) stated the correct approach emphatically in Devaney v R [2012] NSWCCA 285 at [88]:
"87. The Crown put the submission below and on appeal, and to a degree the submission was adopted by her Honour, that there should be some discounting of the clarity and force of the psychiatric evidence because the applicant did not give evidence. For instance, her Honour thought that there was a degree of manipulation of the psychiatrists by the applicant.
88. It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. The sentencing judge should not have diminished the weight of the psychiatrists who came to the view that the applicant had some insight into his condition."
Here, of course, the offender did give evidence and I have 0no hesitation in accepting the views of Mr Awit in the light of his oral evidence, which is summarised by Mr Bickford in his comprehensive and helpful written submissions as follows, there is a persistent depressive order and generalised anxiety disorder. He was diagnosed with depression initially soon after his heart attack that happened about a week after his wife left him. He was medicated at that time with antidepressants and continues to be so. He told investigators in the record of interview that he had been on his own for the last ten years and just wanted someone to talk to and he had been in a dark place for a long period of time. While his depression appeared to be managed by medication in the period leading up to the offence, his loneliness increased and, once arrested, he reported a significant increase in his symptoms and his psychological condition had worsened, particularly during the period in custody. As I have said, Mr Awit said it was clear and evident that he was suffering a mental health condition during and prior to the offending period and that opinion was further supported by psychometric testing and it has more recently been exacerbated to the extent that he meets the DSM-V criteria for a generalised anxiety disorder.
In addition to the offender's evidence and that of the psychologist, I have a number of references from Mr Lough who has known him for some 15 years and speaks favourably of him, as does Mr Nash who has known him since 1974. As expected, those gentlemen are aware of the offending and they convey the expressions of remorse which he has repeated to them both on the phone from prison and during conversations since his release. Mr Ward, who has also known him for some 20 years, speaks of him as being open, honest and reliable and trustworthy and always acting with integrity.
Mr Awit says that, despite the offence, Mr Jones does not express an ongoing sexual interest in children under the age of 16. The offence appears to be out of character and the risk of being incarcerated again is also acting as a further deterrent from re-offending. He proposes a comprehensive treatment plan and he also opines that Mr Jones has a very low risk of re-offending, an opinion which I accept because, as Mr Bickford puts, that submission is not based only upon Mr Awit's carefully considered professional opinion but also on the evidence as to his expressions of remorse, his prior good character, the salutary effect of the period of custody upon him which led him to describe prison as "the worst place on earth" and that his time in there made him realise the gravity of what he did. I can comfortably accept the submission that he has a very low risk of re-offending. As Mr Awit put it, psychologists can never say that there is no risk of re-offending but that is as favourable an opinion as can be reached on the material.
The Crown's detailed written submissions set out the customary principles of sentencing for Commonwealth offences with some detail added in relation to the particular offending and in particular the amending Act (Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)) which requires the Court to take into account, for example, the objective of rehabilitation when sentencing an offender for a Commonwealth child sexual offence under s 16A(2AAA) of the Crimes Act 1914.
The Crown points out that the reason why there are two sequences charged is because the relevant amendment came into effect on 23 June, during the period of the offending.
The Crown points out that appellate courts have consistently stated that sentencing for grooming and procuring offences require focus on general deterrence due to the increase and prevalence of the Internet and the use of the Internet as a means of allowing predators to contact people anonymously, and that a sentence of immediate imprisonment would ordinarily be required for such offences.
It is not disputed by Mr Bickford that the offending was serious, and his concession that a term of fulltime custody is appropriate is undoubtedly based upon that concession. However, in support of his proposition that the offending falls just below the mid-range of objective seriousness, he puts in summary the matters which I accept, namely,
The purported age of the AOI was 14
There was no real child victim although the absence of a victim will not mitigate it, as McClellan CJ said in R v Fuller [2010] NSWCCA 192;
The period of communication was about one month;
There was no threat, pressure or any real psychological coercion;
He took no active steps to preserve his anonymity;
It was reasonably unsophisticated and easily detectable,
The age differential was 49 years
The sexually explicit messages continued after Mr Jones was told on a number of occasions that the identity was 14 years of age,
He initiated the idea to meet with the identity and drove to the agreed meeting place.
While the communications disclosed a blatantly high level of sexual activity from the outset, which was serious and offensive, it was consistent with his belief expressed in evidence today at the beginning that he would be engaging in a fantasy discussion with a person pretending to be a young woman.
The Crown points to the relevant, mandatory factors to be taken into account under s 474.29AA,
1. the age and maturity of the victim or intended victim of the offence,
2. the number of people involved in the commission of the offence.
As I may have already indicated, I accept that his plea of guilty was conveyed at an early stage and justifies, as submitted by Mr Bickford, a 25% discount on a term of imprisonment in accordance with Commonwealth sentencing principles.
I accept that he has given evidence showing genuine contrition and remorse, and I accept that his prospects of rehabilitation are excellent, given his work with the psychologist and his expressions of remorse and commitment to continued rehabilitation.
He described his period in custody as involving, firstly, 14 day quarantine in a cell with no TV or radio and then a transfer to a facility where there was interaction with other inmates and wardens who referred to him as a paedophile. He described elderly people such as himself being targeted. He described with some emotion fearful encounters with other prisoners and he described episodes of boiling water being poured on other but not himself. On his release he has been under what is accurately described as house arrest, initially from 11 December until 19 March 2021 involving daily reporting, confined to home except for reporting or medical appointments or shopping in the company of his children, not to contact any person under the age of 18 years of age and not to possess any device capable of connecting into the Internet.
Those conditions were loosened slightly from 19 March to three day a week reporting, he was allowed to take his dog for a walk around the block, he could travel directly to the offices of his legal representatives and to a remote property at Glenorie to undertake work three days a week.
I take into account those conditions both in custody and on bail as well as the significant evidence presented by Mr Bickford, without challenge and the summaries in the extract from the Bugmy Bar book dealing with COVID-19 and the risks and impacts for prisoners and communities which are becoming well known to judges of this Court in light of the evidence that we hear on an almost daily basis as to the restrictions upon prisoners during the period of the COVID pandemic. These restrictions include a lack of visits, restrictions on phone calls and the ever-present anxiety as to the possibility of contacting the COVID virus while in a custodial environment.
I accept that his term in custody, along with other prisoners at that time, was more arduous than would be for the case for prisoners who had served sentences outside of the COVID pandemic and it is an important factor to be synthesised, along with the other sentencing principles in this case.
Both parties have referred to statistics and a number of comparable cases on the schedule provided by the Crown. Mr Bickford points in particular to R v Fuller [2010] NSWCCA 192 and DPP (Cth) v Singh [2017] VSCA 146 as reasonable comparators.
The statistics, of course, can only be a broad guide or check or a yardstick against which a proposed sentence is to be measured. The relative statistical extract shows that some 12 cases out of a total of 62 cases on the range or 19% were dealt with by s 20(1B) release, that is, without any term of imprisonment at all.
As I have indicated at the commencement of these remarks, the appropriate term of fulltime custody to be actually served is approximately equal to that which has been served, and for those reasons the orders I make are:
The offender is convicted of the offence.
1. Taking into account the section 16BA schedule, I impose a sentence of imprisonment of 12 months to commence on 7 June 2021.
2. Pursuant to s 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released forthwith, taking into account the period of 4 months already served, on the condition that the offender enters into a recognisance, self, in the sum of $100, subject to the following conditions:
1. The offender is to be of good behaviour for 8 months;
2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.
3. The offender is not to travel interstate or overseas without the permission of the Community Corrections Officer.
4. To undertake the mental health treatment plan as outlined by Mr Chafic Awit, psychologist or the Community Corrections Officer.
5. The offender is to report by telephone to the OIC in Gosford CCS by 5pm Thursday 14 October 2021.
1. Pursuant to s23ZD of the Crimes Act 1914 and upon the application of the Director of Public Prosecutions the following item is forfeited to the Commonwealth:
1. Apple Phone 11
[3]
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Decision last updated: 07 January 2022
Parties
Applicant/Plaintiff:
R
Respondent/Defendant:
Jones
Legislation Cited (2)
(Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020(Cth)