R v Knott

Sequence 3 ‑ groom child under 14 years for unlawful sexual activity

At the time of arrest, the offender was in possession of a black Alcatel mobile phone. On examination, police located 43 photographs contained in the, "bin" folder of the phone. Of the 43 photographs, 15 photographs depicted the offender and the complainant engaged in intimate sexual poses. These photographs fall under Category 2 of the Interpol Baseline Classification. Several photographs located on the offender's mobile phone were the same as the printed photographs found in the photo album located next to the complainant's bed at the Quest apartments.
On Saturday 8 September 2018, police were granted a search warrant to search Room 18 at the Green Door Motel.
The search warrant was executed at 7.10pm. During the search police seized a black Apple iPhone and a backpack containing a number of personal items belonging to the offender. Police also seized two pink sex toys and lubrication.
The Alcatel and Apple iPhone belonging to the offender, along with the complainant's ZTE mobile phone that had been seized during the investigation were sent to the State Electronic Evidence Branch for examination.
The examination of the complainant's mobile showed messages and photographs exchanged between the offender and the complainant from 15 July 2018 to 1 September 2018. Throughout the Instant Messager and SMS text messages, they state their love for each other and refer to getting married and starting a family together. There is a large amount of sexual content and photographs were exchanged of themselves naked and in sexual poses.
At 9.36pm on 2 August 2018, the complainant sent two photographs to the offender via Instant Messenger of her wearing a white G‑string and a T‑shirt. The complainant was in a sexual pose with the T‑shirt lifted slightly up. The offender responded to these photographs by sending a thumbs up image.
The complainant sent another photograph with her top lifted further up to underneath her breasts. The offender encouraged the complainant to send more photographs, stating, "Get it off, baby, U sexy thing", and told her that he wanted to see her, "Beautiful tits". The complainant sent further photographs to the offender, where she had removed her top and her breasts were exposed. The offender again encouraged the complainant to send him further photographs, stating, "I am already getting hard". The complainant continued to send further photographs which were more sexually explicit, with her naked on a bed, touching her vagina.
The complainant sent the offender two videos of her masturbating. The offender responded by sending an image of his erect penis to the complainant, stating, "I want U to touch yourself. I want to CU wet, and I wish U were sucking me". The offender sent another picture of his erect penis to the complainant, with the text, "I'm growing".
The complainant responded by sending a further photograph to the offender, which showed her touching her vagina. The offender told the complainant that she needed to be closer, stating, "I want to C close up, like my face was buried in you". The complainant sent further sexually explicit photographs of herself and a video of herself masturbating.
The offender sent the complainant another picture of his erect penis, and several messages stating what he wanted to do with the complainant sexually. He then sent a further a picture to the complainant, which shows the tip of his erect penis, which had fluid coming from it. The offender stated, "U could taste me now, I'm leaking".
The offender and the complainant continued to exchange several more messages of a sexual context before speaking with each other through video chat for a period of 36 minutes.
About 10.43pm on Sunday 26 August 2018, the complainant sent the offender a series of photographs of herself dressed only in a black bra and underwear posing in sexual positions on a bed. The complainant then sent the offender two photographs of her vagina, and three videos of herself masturbating. The offender responded to these pictures and images by sending the complainant a picture of his erect penis.
The complainant continued to send the offender further videos of herself masturbating, and of her vagina. At 1.10am on Monday 27 August 2018, the offender sent another picture of his erect penis to the complainant.
At 11.10pm on Monday 27 August 2018, the offender initiated the chat conversation by sending the complainant a picture of his erect penis. Shortly after this message was sent, the complainant sent the offender five videos of herself masturbating, and a picture of her vagina.
Call logs show that at 11.45pm on Tuesday 28 August 2018, the offender and the complainant spoke with each other over the phone for a period of 40 minutes. During the time of the conversation, they exchanged several photographs of themselves.
At 11.57pm on Tuesday 28 August 2018, the complainant sent the offender a picture of her vagina. Shortly after, at 12.01am on 29 August 2019, the complainant sent the offender a video of herself masturbating. At the same time, the offender, through Instant Messenger, sent the complainant a picture of his erect penis. The offender, then using SMS text messages, sent the complainant two more pictures which show the top of his erect penis and his face in the background.
The complainant proceeded to send further videos of her masturbating to the offender at 12.14am. The offender sent the complainant another picture of his erect penis with the foreskin pulled over the tip of the penis. At 12.21am, the offender sent the complainant a picture of a hand wrapped around the tip of a penis, both are covered in semen.
From early August to 1 September 2018, the offender sent the complainant seven photographs of his erect penis. The conversations at the time he sent those pictures were of a sexual nature. The offender, knowing that the complainant was 13 years old, encouraged her to send him sexually explicit photographs of herself exposing her vagina and breasts. He also encouraged her to send videos of herself masturbating. These photographs and videos that the offender encouraged the complainant to send are classified as child abuse material.
The examination of the offender's black Apple iPhone showed that on 27 August 2018, the offender saved one photograph of the complainant's vagina and four videos of herself masturbating that the complainant had sent him through multimedia messages. The picture and videos, which are stored in the offender's photo gallery on his Apple iPhone, are classified as child abuse material. The picture and videos fall under Category 1 of the Interpol Baseline Classification.
The offender bought the complainant several gifts during their relationship, including a silver necklace and a pendant, of the initial "E", and also bought her several rings, and underwear including a green G‑string. The offender also bought the complainant phone credit and cigarettes.
In November 2018, the complainant disclosed to police that on all occasions, she visited the offender at the motels she had penile‑vaginal sexual intercourse with him. The complainant stated that the offender never forced himself on her, and that she loved him. The complainant stated that the offender made her feel special, and good about herself. The offender constantly told the complainant how pretty she was and that her scars were beautiful.
The agreed facts demonstrate a continuing course of conduct commencing in the early months of 2018, when the offender cultivated a relationship with a naive, vulnerable 13 year old who had behavioural issues and who had been placed in the temporary care of Family and Community Services due to those issues. The offenses were not opportunistic. The complainant was groomed over time and led into a physical relationship which was entirely inappropriate for a 13 year old, by an offender who at the time was 41 years of age.
The relationship developed with the 13 year old engaging in sexual conduct with the offender and being encouraged to provide child abuse material to him, being photographs and videos of herself in various states of disarray and in sexual positions, including masturbating herself. The offender at all times knew that what he was doing was wrong, and that the complainant was significantly underage: that is, he knew that she was 13 years of age. That he was aware of those things is evidenced by the nature of their relationship, the complainant only sneaking out of the premises of Mr Clarke after Mr Clarke had gone to sleep in order to spend time in the offender's caravan, and also the offender engaging the complainant to make bookings at motels, and to apparently sneak away from her carer at the Quest apartments, in order to spend hours with him in sexual contact at the motels referred to in the facts; that is, he avoided, by having her make the arrangements to book motels or accommodation, arousing suspicion by doing it himself.
His grooming of her resulted not only in her providing the child abuse material but also an ongoing sexual contact. The facts make clear that the actual offences before the Court, in terms of sexual intercourse, are perhaps the tip of the iceberg. They are, however, the only offences in relation to which the offender can be sentenced. It is apparent from some of the limitations of the facts provided to the Court that without there being any expressed statement that the complainant has had some reluctance in providing details because she loved him and thought they were going to get married, as unrealistic as that proposition may have been, hence there is no information contained in the facts beyond what can be ascertained particularly from photographs.
Two of the counts, being Counts 19 and 20, appear to have been based on the complainant's agreement that she had had sexual intercourse, being penile‑vaginal intercourse with the offender, and the content of photographs taken on those occasions. The facts and those inferences demonstrate that the offending was not a one‑off, spontaneous event. The offences occurred as part of a continuing course of conduct, prearranged, premeditated, and in respect of which the offender persuaded or convinced the complainant, in effect, to be complicit in reducing the possibility of detection of the offender's offending.
In those circumstances, I regard the offences of groom child under 14 years for unlawful sexual activity, and use child under 14 to make child abuse material, considering that some of that material was in fact photographs and/or videos of them engaged in sexual activity, as falling towards the midrange of objective seriousness, if not at the midrange of objective seriousness.
In respect of each of the three offences of sexual intercourse with a person over ten and under 14 years of age, I note that the complainant was 13, that is, she was at the upper end of the range covered by the section. There is no evidence before the Court of any force or even any duration for any of the events, nor is there any evidence as to whether or not the offender used, or did not use, a condom. Nor is there any evidence there was any particular duration of the sexual offending. No doubt the complainant could have supplied relevant information in relation to all of those aspects. The fact that there is no such information contained in the agreed facts indicates that she did not, possibly as some form of misconceived duty to protect the offender from his conduct. I further note in this matter that there is no Victim Impact Statement.
As to each of the offences of sexual intercourse, submission has been made by Mr Harris on behalf of the offender that they fall moderately below the midrange of objective seriousness. The Crown in submissions has accepted that as an appropriate designation of the objective seriousness of the offences, and I accordingly proceed on that basis. I also note in relation to the child abuse material that there is no evidence that it was disseminated beyond being provided either by or for the offender and/or the complainant, that is, there is no evidence of it having been disseminated elsewhere, such as on the internet.
There is no evidence that it was created for any purpose other than the offender's sexual gratification. An aggravating feature in relation to this matter is that at the time of the offending, the offender was on parole, having been released on 27 October 2017 in relation to offences of supply cannabis, more than an indictable quantity, but less than the commercial quantity, and possess prohibited plant, more than a commercial quantity.
The commission of offences whilst on parole is a significant aggravating circumstance. "Parole is a privilege, and abuse of that privilege calls for a higher punishment.", R v McVittie [2002] NSWCCA 344, R v Fernando [2002] NSWCCA 28 at 42; "Offences committed while on parole demonstrate that rehabilitation, which parole is designed to assist, has failed, and the Court cannot proceed on the same expectation of rehabilitation that is open in other circumstances. "
Greg James J in R v Huynh [2003] NSWCCA 239 stated that: "It is a consequence of having enjoyed conditional liberty upon an undertaking to be of good behaviour, that if you breach that undertaking, you aggravate your culpability for the offence you commit, which constitutes the breach, you surrender the prospect of liberty, which you have enjoyed conditionally upon your not committing a breach, and you must expect to serve in custody the sentence from the custodial nature of which you have been liberated conditionally."
In R v Moffitt (1990) 20 NSWLR 114, it was held that the offender should not only suffer the revocation of his parole, and the consequent need to serve out the balance of the original sentence, but should also suffer a significant punishment for the later offence to mark the gravity of his conduct in abusing his parole.
I recognise that the sentencing discretion includes the ability to make the sentences imposed in this matter concurrent, partially concurrent with, or wholly cumulative upon the sentence to which the offender served as a result of the revocation of his parole, for the reasons referred to by Simpson J in Callaghan v The Queen [2006] NSWCCA 58. In addition, at the time, the offender was the subject of a good behaviour bond.
There is in respect of this matter a significant overlap between all of the offences. Nonetheless, the offending is in each case of a different nature, and so there must inevitably be some accumulation in respect of sentence. Basten JA in R v Nelson [2016] NSWCCA 130 at 23 said: "The Court should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self‑worth and self‑respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self‑destructive behaviour."
The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm understood to be caused by premature sexual activity, as referred to in Clarkson v The Queen; EJA v The Queen [2011] 32 VR 361. The serious regard with which offences such as this are held are reflected by the maximum term of imprisonment that is available, in respect of each, as well as by the prescribed standard non‑parole period, which in each case is substantial.
In Minehan v The Queen (2010) 201 A Crim R 243 at (94), the Court of Criminal Appeal identified a number of factors as being relevant to an assessment of the objective seriousness of a range of offences, including possessing, disseminating and transmitting child pornography. Mr Harrison in his written submissions has outlined each of those matters, and in my view, appropriately assessed them, and I do not intend to repeat them, other than to say that I accept the submission as made by him.
As to subjective matters, before the Court is the offender's New South Wales and Victoria criminal history; a New South Wales Department of Corrective Services Conviction, Sentence and Appeals Report. In addition, there is a Sentencing Assessment Report under the hand of Fiona Flynn, dated 11 October 2019, provided together with a document referred to as a Structured Case Note Full Pre‑Sentence Report, and a Psychological Report prepared by Samantha Ainsworth, senior psychologist at the Junee Correctional Centre, dated 11 October 2019, and a Psychological Report tendered on behalf of the offender under the hand of Patrick Sheehan, dated 9 July 2019. The subjective matters are drawn from that material.
The offender was born and raised in the Snowy Mountains to migrant English parents and is the youngest of three siblings. The family unit remains intact. The defendant has no history of childhood sexual abuse or familial problems with substance abuse, domestic violence, crime, or mental illness. He was apparently well cared for and was close to his mother, and was apparently a reasonably well adjusted child, although he became increasingly disaffected in adolescence.
He moved from the family home aged 17 years to pursue employment, but has maintained close links with his parents. In his early twenties, he returned home to care for his father, who was suffering from dementia and cancer. His father died in 2001, his mother suffered a stroke approximately 20 months ago, and currently resides in a nursing home in Victoria, and is aged in her late 70s. He has only intermittent contact with his siblings, who have apparently gone on to be well adjusted adults.
He attended the Batlow Catholic primary school, where his experience was unremarkable, with normal literacy development and no behavioural problems, and positive social adjustment. He later attended the McAuley Catholic High School in Tumut, where he said, "It went all downhill". He became disengaged; he did not like the people or the school and was apparently bullied because of his weight.
His grades suffered and he began acting up. He was suspended on one occasion, but completed Year 11, aged 17, before electing not to return to study. As to his adult life, he estimates having worked for approximately 50% of his adult life, mostly in seasonal employment for various orchards in New South Wales and Victoria, but he has remained basically in labouring roles without any sense of career progression or consolidation. He has often relied on unemployment benefits for period of up to 12 months. In his view, it is his mental state and drug abuse that has been the main barrier to any career progression over the years.
As referred to, his last occupation was working at the pub where he first met the complainant. He has been in custody since the date of his arrest, 7 September 2018, and he is currently working as a sweeper in remand. He is said to have had poor social adjustment in high school and to have gravitated towards nonconformists, with his drug use becoming more prominent. Despite that, there have been some positive connections to the community in times, having volunteered with bush fire fighters in 2011 and 2012, but he has become increasingly isolated over the past five years, and is reported as having no close friends.
He has had a number of intimate partner relationships in his life, but rarely cohabited with his partners. He has never married and he has no children. His most significant relationship persisted for six years; however the relationship ended dramatically when restraining orders were made. He has been single since 2016. He is said to have commenced sexual activity with peer age females at about the age of 12, and he denies any paraphilic interests, abusive sexual interests, or any previous sexual interest in children.
As with substance use, he commenced using alcohol at 16 years of age, binge drinking on weekends, cannabis use from 17 years, escalating to one ounce of cannabis per week between the age of 18 to 25, and he commenced using amphetamines from the age of 21, in respect to which he progressed to daily use and dependence, injecting the drug intravenously. At times he has engaged in crime to support his use. His longest period of abstinence from prohibited drugs was four years in his early 30s, while he lived in Victoria in the stable relationship I have referred to.
He relapsed in 2016 in response to psychosocial stressors, and he served 13 months in prison and was abstinent prior to release, however, unfortunately, he relapsed after only one week on parole in November 2017, and I note the facts refer to his use of prohibited drugs together with the complainant. He has had a long history of polysubstance abuse, but has never participated in any form of alcohol or other drug intervention.
Physically, he suffers from some chronic back pain and arthritis secondary to a motor vehicle accident in his late twenties, and he has been at one period on Disability Support Pension as a result. He is said to otherwise have an unremarkable health history in relation to physical health problems. As with mental health, he has had mood oscillations between high and low, becoming intolerable in 2015 when he sought help from a general practitioner and was prescribed the antidepressant Escitalopram, which he continued taking until his release to parole in October 2017, however when released he ceased medication and relapsed into stimulant abuse.
He has noted in the past some psychotic symptoms, such as hearing voices and seeing flashes of people who are not real, and that those perceptual disturbances have persisted even when he ceased using methylamphetamine, with the symptoms waxing and waning in response to levels of stress. When admitted into custody he was placed under observation and treated with an antidepressant and an antipsychotic, which he apparently continues to receive while in custody.
He was placed, while in custody, into the Special Management Area Protection, or SMAP, as it is known. He has given evidence today on sentence, and indicated that he has been bashed in custody on two occasions, once in Parklea and once in Junee, on each occasion appearing to be as a result of not being prepared to tell other prisoners what charges he was facing.
It has been long recognised that offenders who are facing charges or have been convicted in relation to sexual offending against children can expect to be dealt with roughly within the system even in the general population, and it is almost inevitable that they are placed into protection. He gave evidence of the assaults, neither of which appears to have had any significant sequelae, and both of them apparently occurring while he was in protection. He has spoken in his evidence about the limitations which go with being in protection, and I accept that his evidence of those limitations was correct. I have frequently heard such evidence from others. However, on the other hand, there is less risk of an offender being set upon by others while in protection, rather than in the general population, where the risk of being assaulted or abused is far higher.
Mr Knott said that he was initially unable to provide much by way of insight into his behaviour, saying that it, "Just happened", further indicating and acknowledged that he developed age inappropriate feelings for her, saying, "She made me feel safe. She didn't just judge me, I didn't think of her as a kid". It is opined by Mr Sheehan that Mr Knott's social inadequacy would appear to have played a role in his identification with a child, viewing the complainant as less intimidating than adult partners.
At the time the offender is said to have distorted views of equality between himself and the complainant, attributing adult qualities to her, but since his arrest he has challenged those views, and said, "I'm ashamed of myself, I put her in that position, I shouldn't have let it happen at all", and acknowledging that the power dynamic was not equal, the complainant not being in a position to make informed decisions, and acknowledging that she had been vulnerable, and that she would probably feel differently about the relationship as she matured, feeling that it was wrong.
The Sentence Assessment Report under the heading of "Insight into Impact of Offending" states as follows: "Mr Knott demonstrated a good insight into the impact his offending had on the victim, he stated she would have felt scared, hurt, angry, stressed, anxious, used, ongoing trust issues and possible ongoing psychological issues, before he then unfortunately made a superficial remark, 'I'm sorry to her for what's happened'.".

Matters Relevant to Remorse and Contrition

The first of those is of course that he entered a plea of guilty at an early stage; that may well have been in the face of at least an inevitably strong case in respect of some individual counts, and a plea of guilty does not necessarily reflect remorse or contrition. I am however prepared to accept in relation to this offender that it, together with some of the expressions to the pre‑sentence officer and to Mr Sheehan, does indicate genuine remorse or contrition.
As to the prospect of reoffending, Mr Sheehan assessed the offender as being a moderate/low or average risk. His criminal history includes offences such as use offensive language in or near a public place or school, destroy or damage property, supply prohibited drug, possess prohibited drug, self‑administer, possess ammunition, possess prohibited plant, supply cannabis, drive with a high range PCA, and contravene prohibition restriction on an AVO.
Considering his age, it is not an extensive criminal history, and of significance is that there is no offence whatever that could be regarded as similar to any of the offences that are currently before the Court. The Sentence Assessment Report refers to him as being a medium risk of reoffending, and that is consistent with the material contained in the Instruction Case Note for the Pre‑Sentence Report, and in the report of Samantha Ainsworth, psychologist, who referred to him as being an average risk of reoffending relevant to other sex offenders. I accept those assessments as appropriate. It could be said that his risk of reoffending is guarded, but in the light of his lack of any similar offending, I am prepared to accept that there is a low risk of reoffending.
The maximum term of imprisonment provided for any particular offence and any standard non‑parole period ‑ where there is on ‑ are matters which must be taken into account as significant guideposts in relation to the sentencing process. Any sentence imposed on an offender must reflect the matters referred to in s 3A of the Crimes (Sentencing Procedure) Act, that is, the objects of sentencing, and it must also provide for both specific and general deterrence. In matters such as this, specific deterrence is always an important factor to take into account, as is general deterrence.
The invention and ubiquitousness of the internet and the development of mobile phones with their smart features have created serious problems for the community in relation to offending of this nature. Communication being readily available, whether encrypted or not, between individual phones or computers means that it is generally simple and easy to create and transmit child abuse material with little risk of detection.
It is important that sentences in relation to matters such as this act to deter would‑be offenders and significant sentences are thus necessary to protect the vulnerable, naïve and immature from sexual offending.
I have taken all of those matters into account, including the 25% utility discount that I have referred to in the instinctive synthesis of determining an appropriate sentence.
I intend to proceed by way of an aggregate sentence, in which case I am required to indicate an indicative sentence in respect of each of the offences. As each of the offences carries with it a legislated standard non‑parole period, I am also required to indicate a head sentence and a non‑parole period as if the matter was dealt with in the usual course, rather than by way of an aggregate sentence.
Accordingly, in respect of the offence of Sequence 3, groom child under 14 years for unlawful sexual activity, the indicative sentence is a sentence of two years, ten months, with an indicative non‑parole period of two years, one month.
In relation to Sequence 5, being use child under 14 to make child abuse material, the indicative sentence is three years, with an indicative non‑parole period of two years, three months. In relation to each of Sequences 18, 19 and 20, having carefully considered those matters, I have decided that it is appropriate to provide the same indicative sentence in respect of each of them. Accordingly, in relation to each of those three matters, the indicative sentence is six years, with an indicative non‑parole period of four years, six months.
I have then taken into account the need for some accumulation to reflect the differing nature of the offences, but as previously expressed, there is, in my view, a significant overlap in relation to the offending conduct, and it is necessary for the Court to take into account the principle of totality. Accordingly, the sentence will be a non‑parole period of six years.
As previously referred to during submissions, I have indicated that the non‑parole period will commence, or the sentence will commence, on 20 October 2018, partway through the term being served as a result of the revocation of his parole, so the non‑parole period is six years which will expire on 19 October 2024. The balance of term is two years, and the total term of imprisonment will expire on 19 October 2026.
A submission was made by Mr Harrison in his thorough and thoughtful submissions that the Court would find special circumstances. It will be evident from the indicative sentences, as well as from the aggregate sentence, that I have not found special circumstances. In my view, the period of two years on parole is a significant period. The offender will have the benefit of his time in custody during the non‑parole period to participate in relevant programs that can assist him, and in my view it is not necessary to provide a greater period than two years as the parole period, that being in itself a significant period of supervision.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (6)