HIS HONOUR: The prisoner, Stephen Morrison was arraigned in my court in respect of a charge alleging that he between 16 April and about 1 June 2015 at Rushcutters Bay in the State of New South Wales, being a person of at least eighteen years of age, used a carriage service to transmit a communication to the recipient being an assumed identity whom he believed to be under sixteen years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with himself. This is an offence contrary to s 474.27 (1) Criminal Code (CTH). Although arraigned in the District Court he had in fact been committed for sentence from the Local Court. I am required to take into account on a Form pursuant to s 16BA Crimes Act (CTH) 1914 being an offence that he used a carriage service to send indecent material to a person less than sixteen years, this was an offence committed on 27 April 2015, the accused having committed an offence reflected in the Form contrary to s 474.27A Criminal Code (CTH).
I am informed by the Crown in its helpful written submissions that the offence on indictment for which the prisoner was committed for sentence carries a maximum penalty of twelve years imprisonment. The matter on the Form carries a maximum penalty of seven years imprisonment. The prisoner was arrested on 18 August 2015, he has been on conditional bail since that date. I must make a comment initially about the disgraceful delay in the disposal of this matter, I do not know who is to blame, and I do not ascribe blame, but this prisoner appeared in this Court on 8 April 2016 and here we are nearly a year later sentencing him. Admittedly there was some delay of course since I received the evidence and the submissions a day or two before I was to go to Wagga for three weeks but there is just no explanation for a simple case such as this, with respect to some of the complexity of it, being delayed so long. It is time perhaps the Court look at its systems to ensure that cases of no great complexity, although there is quite a deal of detailed material to take into account in relation to this matter, be dealt with promptly. It is in the interests of the community and the prisoner for prompt resolution of the matters with which I am concerned.
The prisoner was born on 20 March 1960 as I understand it. As is particularised in relation to the matter on the Form, the prisoner was fifty-five years of age at the time of the commission of the offence. I have a very detailed statement of facts but aspects of that detail require reciting, if not requiring a complete reiteration, of what is contained within the agreed statement of facts. Because of some very unusual features of this case that have led me to the conclusion as to what the appropriate term of imprisonment should be, but also have led me to the conclusion that I should suspend that term of imprisonment.
In this particular matter there are features of the case that place it very much at odds not only with almost every case that I have seen of this type. I have seen many cases of this type, if I could use that expression, throughout the years although there are of course increasing numbers of offences of this character coming before the Court. I will distinguish this case from many of the authorities to which I was taken supposedly to provide some guidance as to "comparative sentencing" trends and standards.
Some of the features of the agreed facts that reflect upon what I have just said are as follows; the offences, that is the matter for sentence and the matter on the Form arise out of "online communication sent between New South Wales Police and the offender." It is apparent to me although it is not expressly stated that the prisoner's email address which was his personal email address had been acquired by investigating authorities from some of the sites that the prisoner had dealt with as exposed in the history obtained from the psychologists that have spoken to the prisoner, material about which I will comment shortly.
A New South Wales police officer assumed the online identity of a thirteen year old male and initiated contact with the prisoner on 16 April 2015. The prisoner did not immediately respond. In fact, the prisoner replied on 20 April 2015 with an exchange of messages that was very short. The identity told the prisoner that he or she would "like to chat" about various topics and wrote in the infantile, juvenile argos that I had seen in trials that I have conducted recently, used by assumed identities to lure predators to expose themselves. I hasten to say I could not conclude that this prisoner falls within the category of offender that can be described as a "predator" as almost all, if not all, of the higher authorities that the parties have cited reveal.
The assumed identity re-initiated contact with the prisoner on 27 April. The prisoner at first sought to fend off the enquiry from the identity at which point I hasten to say the prisoner did not know the purported age of. The prisoner replied at one point, "Sorry I've been busy. I'm interested if you are. Where are you from and what's your age?" At this point or shortly afterwards the prisoner sent the assumed identity a picture which was a picture of the prisoner sitting naked on the corner of his bed with his right hand holding his mobile phone and his left hand holding his penis. Emailed correspondence then continued after that had been sent, but at that point when that picture was sent, the prisoner did not know the age of the other person albeit, as I said, the assumed identity had written in the naïve fashion that assumed identities do as many cases before the Courts reveal themselves to undertake.
It was after the picture was sent that the identity claimed to be thirteen turning fourteen and there was an exchange of information, if that is the correct expression, between the two culminating in the prisoner saying this by reference to the picture that he had sent having now learned the purported age of the identity, "I didn't want to shock you sorry if you didn't like it." The one occasion that the prisoner initiated contact with the assumed identity was when he initiated contact over Skype following upon this exchange of emails and the sending of the picture to which I have referred and there was a chat conversation, as it is described, by the use of the Skype program. The detail of the conversation occurs but, of course, being with an assumed identity whilst the accused obviously could communicate with the assumed identity he could not see the assumed identity. Later in the same conversation the prisoner commenced a video call with the assumed identity as it is described. How this is different from Skype conversation is not made clear to me on the facts. Only the prisoner's camera was filming and the camera showing the prisoner wearing only underwear and during the course of this, the prisoner rubbed his genitals under his underpants, removed his underpants, masturbated and ejaculated and typed a series of suggestive communications to the assumed identity. This was the end, as I understand the facts, of their contact on 27 April. It is the prisoner's conduct during that period of time that gives rise to the matter on the Form 1.
Subsequently on 29 April the online identity attempted to initiate contact with the offender by sending several "Offline Skype messages" to which the prisoner did not respond. On 18 May 2015 the assumed identity again initiated contact with the offender through Skype and they had a "chat conversation" where the prisoner at one stage suggested that the communication could proceed "on cam". That is, I assume, by the prisoner being able to visually view the assumed identity. On 19 May 2015, the assumed identity again initiated contact with the offender by sending him a Skype friend request. The offender used his own name in the context of this communication. At no stage, I hasten to say, in the course of any of the communications did the prisoner use an assumed identity or some mechanism such as email address for contact that was seeking to hide his true identity. The assumed identity again initiated contact with the prisoner seeking to revive contact and the prisoner replied to that enquiry shortly. Shortly after that email on 1 June the assumed identity again initiated contact with the prisoner over Skype through a "chat conversation." The prisoner was watching an ABC program called Four Corners, thus it must have been a Monday night, and they discussed the program. That conversation ended twenty minutes later. The assumed identity again reinitiated contact with the offender and the content of that discussion is set out in the course of the statement of facts.
In relation to that conversation between the prisoner and the identity, the prisoner made enquiries as to whether the assumed identity was interested in him and the prisoner indicated that he may be able to contact or come into personal contact with the assumed identity at a future time, perhaps a week into the future.
On 16 June 2015 again the assumed identity initiated contact with the prisoner. The prisoner did not respond to this email. Again on 30 June 2015 the assumed identity initiated contact with the prisoner by sending an email to his private address and on 1 July the prisoner sent an email to the assumed identity stating, "Sorry but I'm not interested in you anymore. You never told me who gave you my email." The prisoner was arrested at his place of work at the University of Sydney on 18 August 2015 and I understand as a consequence of his arrest and charging he lost his employment.
A search warrant was subsequently executed at the prisoner's residence and police seized three computers and a mobile phone. As I understand it, it is a matter of particular submission by the prisoner's counsel, there were no child pornographic or child abuse images or material found in the computers and mobile phone controlled by the prisoner.
The prisoner at the time of his arrest in relation to this matter and at the time of the commission of the offence was a single man. He had no children. The Community Corrections Service has prepared an extensive report in relation to his background and there are details of his background in the histories that he has given to psychologists that have prepared reports. Notwithstanding the observations properly made by the learned Crown Prosecutor about the fact that there are many hearsay representations contained within various reports from the prisoner that are not tested, as the prisoner did not give evidence, having regard to the background of the prisoner, the character references and what I have read from the histories given by the prisoner and their internal consistency and the like, I have got no reason to doubt the truth of the histories provided by the prisoner about his background. I should point out at the time of the commission of the offence and at this time the prisoner has no prior criminal convictions. The prisoner was a person who, as I understand it up until fifty-five years of age, was regularly employed and had a number of responsible employments particularly in the last twenty years attached to various universities in what I understand to be visual arts or related activities on those campuses. The prisoner has been married once before in 1999, divorced in 2005. Two of his referees were in fact witnesses at that wedding and have maintained a relationship with him beyond the time of the marriage. The prisoner has been in other heterosexual relationships as it transpired.
His mother is residing in Brisbane, his younger brother and his younger brother's wife have provided references to the Court. His younger brother lives in Queensland as well. The prisoner was educated in Melbourne, he completed a diploma course in Queensland, he initially started employment as a teacher of video production and as I have said, has worked at various universities including the University of Queensland and, as I understand it, Sydney University and Macquarie University. The prisoner has not been addicted to prohibited drugs throughout his life however it is clear that in recent years particularly he has had some difficult in relation to drinking alcohol and has been on occasions a heavy drinker of alcohol, particularly on weekends.
The Community Corrections Service report advises, as has been set out in considerable detail in the reports from Dr Baron, that since his arrest in relation to this matter he has undertaken a lengthy period of counselling from Dr Baron who is a specialist in treatment of a range of offenders including those involved in online child abuse and related activity. The Community Corrections Service had access to at least one of Dr Baron's report. To assist with the preparation of the Community Corrections Service report as is the practice, the prisoner was referred to a clinical and forensic psychologist and an assessment was undertaken using what is called the Static 99R Actuarial Risk Assessment Tool; the prisoner is assessed to be in a "moderate to low risk category relative or other male sex offenders of his age." There are limitations of course to this tool, it is merely a guide. The prisoner is recorded by the Community Corrections Services as accepting responsibility for his offending behaviour and of course, accepting the facts which are quite clearly reflecting what would have been recorded by police in the course of their investigation of this matter. Bearing in mind the prisoner has currently engaged with appropriate treatment services within the community and having regard to the examinations undertaken on behalf of the Community Corrections Service, it is felt by Community Corrections that he is unlikely to benefit from a period of supervision and although he is eligible for and in effect, suitable for community service work, he would not benefit it is thought from the available developmental programs available under that option for sentencing.
In relation to the material in the defence case there is a letter to the Court from the prisoner apologising for his conduct, discussing the benefit to him of the counselling that has been undertaken and reflecting upon what insight he has received from that treatment. He said inter alia, "My actions have devastated my life, it has ruined my career and reputation. I've lost many close friends and work colleagues." He says and I accept, although he was not tested on this by the Crown, "I did end the contact and had no intention of a real meeting as I was playing a role in an unreal fantasy on the internet." Dr Baron discusses this aspect of the prisoner's conduct and particularly in the context of the use of the internet by the prisoner to engage in chat discussions with people that the prisoner had previously believed were over the age of eighteen. The prisoner says in his statement to the Court, "I'm extremely deeply remorseful and I'm ashamed and appalled at my actions and I accept my responsibility." That assertion I accept in the context of all the other material available to me. He also states that he hopes that with the assistance of therapy he will be able to control his conduct in the future.
As I said, I have references from his sister-in-law and brother. They speak of his good character, their good relationship with him, the fact that he was quick to reveal his criminality. They confirm his expressions of remorse and sorrow for his conduct, they confirm the evidence from their observations of him of him being a hard and diligent worker living a happy and simply lifestyle and that he has sought treatment in relation to the issues that to some extent underlie his involvement in this offending. His brother says inter alia that he has always been, "An upstanding member of the community," that the conduct of which he has been convicted or is to be sentenced for is "totally out of character," losing his job and reputation. I have references from two other people that have known the prisoner for some period of time, one was a flatmate with him in the late nineties before he was married and as I said earlier, was present at his wedding. She expresses her shock at the character of the charges brought against him, confirms his expressions of remorse and the genuineness, in her view, of his remorse and expresses the hope that the professional assistance the prisoner has received will benefit him in the future and that she will continue to support him. In relation to the other reference, as I said likewise from a witness at the wedding in 1999, that character referee reflects upon his work as a dedicated employee and also has indicated that he and his wife have tried to support him with some small "jobs" since losing his employment at Sydney University. He reflects upon the prisoner as being a very "creative" person, confirms the loss of friends out of these charges. He confirms also the honesty of the prisoner in revealing his criminality to him and the contrition and shame which I have earlier noted from the prisoner's statement and the observations of other referees. He will continue to provide counsel to the prisoner. He believes knowing the prisoner for twenty years that the offending is "out of character." He also expresses concern about his mental state.
I have reports from Dr John Baron to whom I earlier referred. One is a relatively lengthy report of 26 August 2016 and the other is an updated report of 20 February 2017. Dr Baron's reports are very useful in a range of ways firstly, Dr Baron is an acknowledged expert in the treatment of persons with paedophilic and related conditions or tendencies. He is also a person who has clinically assessed the prisoner over an extended period of time. The first report reflected that he had at that point twenty-two hours of therapeutic contact with the prisoner and his subsequent report reflects a further five hours of therapeutic time up until 13 February 2017. He undertook personality and clinical assessment and obtained particularly scores applying tests that I need not dilate upon for the purposes of this judgment. He assessed, by reference to his general personality profile noting of course that much of this is dependent upon self-reporting of course, that the prisoner's extroversion was low, his agreeableness was high, his conscientiousness was high, his neuroticism was average, his openness to experience was average that is, typifying a person who enjoys tradition but is willing to try new things. His scores were low in relation to imagination, emotionality and adventurousness. He said in relation to these aspects of his personality, "The overall profile is concordant with the impressions I gained in the course of therapy sessions." With regard to his clinical personality patterns, he said that there was some element of compulsiveness on the part of the prisoner but not to the extent of impairing personality pathology. The assessment undertaken by the personality assessment inventory reflected scores within "normal limits. There are no indications of significant psychopathology in the areas that are "tapped" by the individual clinical scales. Consistent with his profile and his current legal situation there are modest elevation on scales related to obsessive compulsive tendencies, anxious ruminations, depressive thinking and other physiological symptoms of depression. He observed on the tests that he undertook that there was,
"(A) high degree of consistency between results of the three different instruments as would be expected when all three are based on self-report to the component items. It needs to be noted however that such consistency does not invalidate or diminish the accuracy of the overall picture, especially given how central self-concept is to personality."
In his clinical formulation noting the history provided by the prisoner, he noted the prisoner had developed before this offending a pattern of spending some of his after work time engaging with online, "virtual reality" sites such as "Second Life," and other chat sites. In such sites, people are able to adopt an avatar or an alter ego or another identity and relate in an imaginative and experimental ways with other "avatars." He went on to discuss the character of those sites and the prisoner's involvement with them. He states,
"It appears that for Mr Morrison exploration of such sites led him into the world of virtual sexuality with its associated role plays and explorations of 'alternative sexual possibilities.' The commonly acknowledged risks associated with these role plays is that for some individuals in certain states of mind or states of altered consciousness, they can blur the distinction between fantasy and reality as in (it is said) the offences to which Mr Morrison has pleaded guilty."
He says in the first report and reiterates it in the second report that it is a,
"… plausible clinical hypothesis that the content of Mr Morrison's fantasies relating to an early adolescent teenage boy somehow relates to his own earlier sexual experience resulting in orgasm when he was about the same age, about fourteen or fifteen years of age."
In his second report if I may turn to that he makes observations concerning the involvement in "online fantasies" and whether the prisoner had or has some "abiding sexual interest in or attraction to underage males." The report noted some aspects of his history and particularly his early work history but he said there is,
"… nothing in his reported history to support a clinical diagnosis of Paedophilic Disorder though the online fantasies can be described as paedophilic behaviour. On balance my assessment is that Mr Morrison has not had an abiding sexual interest in underage males in the normal sense of the word as referring to a conscious attraction that is available to everyday consciousness."
He says,
"The most plausible clinical explanation for the content of his online fantasies is that they involved a transient psychological regression to his early adolescent experience of sexual activity with a peer age friend associated with an altered state of consciousness..."
which he had referred to in his earliest report.
The only matter to note about the conclusions reached by Dr Baron in this context is the suggestion by Dr Baron more as a hypothesis in my view that there was some disassociated state on the part of the prisoner in the course of the communications the prisoner had with the assumed identity. I do not see that in the material that is available from the Crown. That having been said, of course, coming back to the detail that I provided from the agreed facts, this was not a case of the prisoner seeking out the assumed identity. In fact, it is a case of the assumed identity persistently seeking to cajole the prisoner into communication leading to the ultimate commission of the offence for which he is to be sentenced in the matter that is required on the Form 1. I do however accept the assessment of the psychologist as to the manner in which the prisoner may have been lured, if that is the correct expression, into the commission of the offences enured by, or desensitised by, his previous access to the online activity of which the psychologist speaks.
The psychologist undertook assessments as to risk factors and he, applying different instruments to those applied by the Community Corrections Service Psychologist, assessed the prisoner as falling into a 'low risk' category acknowledging that there is no established actuarial instrument for online only offenders although such instruments may evolve in the future. He says in relation to this aspect of the matter that there is not a good recidivism data for this population and that the understanding of personal that is, dynamic risks factors is a work in progress. His assessment of dynamic risk factors allows for considerable confidence that Mr Morrison is positioned in the non-recidivist proportion of the low risk category, that he does not require substantial treatment but needs long term therapy to address multiple areas of risk. He is suitable for a "low moderate intensity course for therapy." He noted the effect upon the prisoner of the treatment and the character of the treatment, he noted the prisoner's deep shame for his exposure. He said inter alia,
"The most challenging task for Mr Morrison was to gain insight into the fact that his sexual fantasies involved under age males given that he views himself as heterosexual and with no 'real world' sexual interest in males particularly teenage boys. He did not deny that this was the content of his fantasies but was initially not able to understand where this was 'coming from.' Given his background in computers and information technology he was able to make some preliminary sense of this anomaly by the metaphor of a 'virus' that has been introduced into the system dormant but occasionally causing a malfunction. He was also able to recognise 'the altered states of consciousness' that are associated with immersion in virtual reality sites and the accompanying disassociation from the social and moral norms of everyday reality."
It is the fact as I understand the prisoner's personal circumstances that at the time of the commission of this offence, and for some time beforehand, the prisoner was involved in a relatively lonely social existence despite the fact that he did have good friends. Whether this was post-divorce syndrome or for some other reason I do not know. It is to be said from the history provided by the prisoner that he was spending an inordinate period of time in the available leisure time that he had participating in the online sites to which I referred.
The prognosis of Dr Baron in his initial report was that he had made substantial progress of gaining insight into his offence and addressing the risk factors and personal dynamics relating to the offence and he said that he would benefit from follow-up sessions. His most recent report reflected the fact that Mr Morrison had conscientiously engaged in rehabilitative therapy and had made significant progress in addressing these factors causally related to his offending. In relation to the risk of reoffending it needs to be noted that internet only offenders generally reoffend at a low rate. He remained of the opinion, previously expressed, that Mr Morrison was committed to desisting from further offending and currently was of "no appreciable risk of engaging in the problematic online behaviour that led to the offence."
Mr Sam Borenstein has prepared a report as well. His report, with no disrespect to Mr Borenstein, adds very little to what Dr Baron concluded. He administered somewhat more limited tests and also, it must be said, has less clinical experience of the prisoner. He reflected upon the opinions expressed by Dr Baron as at the time of the preparation of his report which is 26 October 2016, Mr Borenstein did not have access to the most up-to-date report. He was of the view on the history available to him that the prisoner had suffered some form of depressive disorder or illness after his divorce, describing it as a "dysthymic disorder". He states that this had affected him over a lengthy period of time including exacerbating or being exacerbated by his use of alcohol. He reflected upon the use of online sites. He was of the view that the use of online sites or virtual reality sites such as "Second Life" contributed to a blurring of real boundaries between reality and fantasy and this allowed the prisoner to feel disconnected from his every day, mundane life. He did not think that the prisoner suffered from a Dissociative Identity Disorder, although there is some reliance by Mr Borenstein on an element of dissociation in the commission of the offence. It is a fine line I appreciate in the context of what the experts are commenting upon, but as I have said earlier, there appears to me to be little evidence of dissociation in the character of the contact of the prisoner with the assumed identity. But again this has to be seen in the context of the persistence of the assumed identity to engage the prisoner. Mr Borenstein regarded the prisoner's prognosis as excellent.
It is in this context with that material that I consider the submissions of the parties. Much was made in the context of the submissions of the Crown and some of the submissions of the defence of the assistance that might be gleaned from supposedly "comparative cases." The Crown cited a decision of the Queensland Court of Appeal of Costello (2011) QCA 39, Rampley, (2010) NSWCCA 293 and Nahlous (2013) NSWCCA 90. In relation to, for example Costello, apart from the greater number of offences involved, I note of course the offender there pleaded not guilty. In the case of Mr Morrison, I was taken to a number of authorities by his counsel including a number of Victorian authorities, the decision of Walls (2014) VSCA 323, a decision of a Judge of the County Court of Victoria from 2013 of LPR, which has a 2017 citation, a decision of the County Court of Victoria from 2012 (again with a 2017 citation) of Jones, amongst other matters. Each of the parties drew my attention in various ways to the New South Wales decision of, Asplund (2010) NSWCCA 316, which was both a Crown and prisoner sentence appeal in the written submissions. Both parties as I said had provided most helpful written submissions of the prisoner. In Asplund the Court reflected upon, in the context of the sentencing remarks of the sentencing judge some of the features of offending of this type with which I am now concerned that were available from the facts of the case. These included matters such as the level of persistence, the nature of the indecent material communicated, the extent to which the intent to involve oneself in future sexual activity is exposed and developed through the communications, the nature of the future sexual activity intended, the age difference between the purported victim and the prisoner, the nature of any prior relationship between the victim and the prisoner and the character of the prisoner's awareness of the indecency involved and the deliberateness in communicating, amongst other matters.
In Asplund in the context of dealing with the appeal in the judgment of McLennan CJ at CL, as noted in the Crown's submissions, reference was made to a well-known observation of President Steytler in the decision of Western Australia v Collier (2007) 178 ACR 310 particularly at [43] and [47], which observations have been adopted in a number of judgments of the Court of Criminal Appeal. The Crown particularly relied on passages from the judgment that stated,
"Anything less than an immediate term of imprisonment does not take sufficient account of the seriousness of the respondent's offending behaviour or of the need to deter him and others from committing offences of this kind in the future. It is important to say as clearly as one can that adult persons who make use of the internet to locate and make contact with children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate punishment. As with offences of child pornography there is a paramount public interest in protecting children from sexual abuse."
I pause for a moment to point out of course nothing in that passage that I have read is controversial and is entirely apt in sentencing in the appropriate case. There are some features of this offending, in the context of reflecting upon the circumstances and facts of the offending, that distinguish what would otherwise require the imposition of an immediate term of imprisonment. This is not a case of the prisoner using the internet to locate and make contact with children. So far as procuring them to engage in sexual activity, the prisoner was communicating with an assumed identity who obviously would not be able to engage in any sexual activity with the prisoner even "online." I appreciate in part of the communication from the prisoner the prisoner suggested the assumed identity appear "on cam". This occurs in the context of the prisoner having exposed himself in two instances, including the circumstances giving rise to the offence on the Form, to the assumed identity in the performance of a sexual act or providing an indecent image. I accept however the prisoner's assertion that that was, although he does not expressly state so, as far as it went. As it turned out, the assumed identity as I have pointed out, could not have appeared on camera. I accept completely that the prisoner, although it was vaguely suggested at one point, had no real intention of meeting with the person even if the person was a real person.
In relation to the sentencing of the prisoner of course as the Crown points out, I am required to have regard to s 16A Crimes Act 1914 and the Crown's written submissions, as always is the case, helpfully set out various matters under Pt 1B of the Commonwealth Crimes Act that I am required to acknowledge and particularly comment upon. With regard to s 16A (l) I am required to impose a sentence or make an order that is of severity appropriate in all the circumstances of the offence and specifically, without citing the sub paragraphs, I am required to have regard to the nature and circumstances of the offence. In that regard, I accept the submissions of the counsel for the prisoner that the prisoner was communicating with an assumed identity, not a real child, and there was some delay in the prisoner learning of the age of the assumed identity. I have made the point two or three times that such communication that occurred arose solely, in reality, from the persistence of the assumed identity to invoke a response from the prisoner. It is accepted that the prisoner knew and deliberately communicated indecent material and that it was of a graphic nature, but at the same time, the prisoner made no attempt to hide his identity. He used his own name and gave details of himself as I have said, used his personal email address and his personal Skype account and did not try to anonymise himself in any way whatsoever, a persistent feature of the predator type offender that usually is involved in this type of offending. I accept the submission of his counsel in assessing the nature and circumstances of the offence that the prisoner did not engage in what could be described as "predatory behaviour" for the reasons I have set out above. I have taken into account obviously, in the context of reflecting upon the facts, the degree of "persistence" that could be ascribed to the prisoner which I would describe as "low."
I am required to have regard to other offences to be taken into account. In that regard, I am required to have regard to the fact that a matter on a Form may increase the appropriate sentence to be imposed upon the prisoner in respect of what could be called the principal offence as it is described under State law, the principles to be considered in taking into account matters on a Form are barely different from those set out in the guideline judgment, although the Commonwealth is not bound by 'guideline judgments' of the Court of Criminal Appeal, including the 2002 judgment relating to matters to be taken into account on a Form 1 under State law. It may require greater weight to be given to personal deterrence and punishment depending upon the character of the matters on the Form 1 and their relationship to the principle offence, it may require the imposition of a greater sentence. Sometimes the increase upon the otherwise appropriate sentence for the principal offence, the matter for sentence, may be significant. This is reflected also in the decision of the High Court of Putman v R [2004] HCA 8 at [56].
With regard to the issue of whether the offence forms part of a course of conduct, there is a period of time over which the relevant "offending" in one sense occurs although much of the communications over that of time are bereft of criminality. In my view, ultimately, it could not be said that the offending is reflective of a "criminal" course of conduct by the prisoner. In fact as I have said a number of times, apart from the fact that some of the communications between the parties are not of a criminal character. Much of the communication is initiated by the assumed identity trying to entice the prisoner into further offending.
I am required to have regard to the contrition shown by the prisoner as the next relevant matter. In my view there is no loss or injury or no relevant victim in this crime. I accept that the prisoner is contrite. I accept that firstly he has taken responsibility for his conduct, he recognises the character of his conduct and has sought to address it. He has expressed shame and contrition to his loved ones and his immediate friends almost immediately after his arrest and in my view, his contrition also is reflected in part by his plea of guilty.
I am required to have regard to the plea of guilty as a fact. In this regard, by reference to the submissions of the learned Crown prosecutor, the Crown notes of course that a Court has a discretion as to whether it would accord the offender any discount. The timing of the plea is one relevant matter in this regard, albeit that it is submitted by the Crown that it is not a matter of reflecting the utilitarian benefit of the plea of guilty. But more in accordance with what the Crown cites as relevant authority, particularly Cameron v R (2002) 209 CLR 339, particularly at [22], the extent to which the offence facilitates the course of justice. I am not here of course to lay down any legal principles, that is not my role. I merely apply the law as the superior Courts require me to do, but I do note in the context of the Crown's submissions and also the submissions on this matter by counsel for the prisoner the relatively recent decision of Thomas and Wu [2016] VSCA 237, in which their Honours take apart what has been thought to be the wisdom of the fact that Commonwealth sentencing in applying discounts from pleas of guilty is only concerned with facilitating the course of justice. I particularly cite [4] to [8] of that judgment. Amongst other things, the Victorian Court of Appeal noted that in many respects, the discount for facilitating the course of justice would be the same as the discount for the utilitarian benefit of the plea of guilty, noting that the two concepts have many similarities. But they also go on to say that in the context of what Cameron decided, bearing in mind it was an appeal from a Western Australian State provision not a Commonwealth provision, there was some doubt as to whether Cameron was in fact authority for what people have thought in various ways was the case. Be that as it may, I am not here to resolve any conflict that may exist between the Victorian Court of Appeal and the New South Wales Court of Criminal Appeal. I have concluded that I should provide the prisoner with a discount to represent the facilitation of the course of justice in the recognition of the timing of the plea, the assistance the prisoner has provided in the prosecution of himself by pleading guilty notwithstanding of course the strength of the Crown case against him. I propose to accord him a discount of twenty-five per cent upon the otherwise appropriate sentence.
With regard to other matters that arise by reference to both the submissions of the parties and the particular provisions I am required to have regard to, I am required to have particular regard to the deterrent effect that the sentence that I will have upon him and on other persons. General deterrence is, as I have pointed out by reference to that passage approved in the decision of Asplund and the authorities that have been cited by the parties, a paramount consideration. Of course the weight to be given to general deterrence in every sentencing issue is going to be a matter of degree depending upon the moral culpability of the offender, the characteristics of the offender in the context of the character of the offence, the maximum penalty to be imposed and the like. That having been said, the recording of a conviction and the imposition of a term of imprisonment upon this prisoner, notwithstanding his excellent prospects of rehabilitation and the positive steps he has taken to rehabilitate himself since his arrest reflects in part the recognition of the weight to be given to general deterrence.
So far as his character, antecedents, cultural background, age, means, physical and mental condition, I have taken all the relevant matters into account that emerged from the evidence. This is a matter that is reflected in greater detail in the written submissions of learned counsel for the prisoner. It is very much a matter to be emphasised from the perspective of the prisoner rather than to be emphasised necessarily from the perspective of the prosecuting authority in the context of the weight to be given to this aspect of the matter, bearing in mind all relevant evidence points in a positive direction. I accept the submission of counsel for the prisoner that lesser weight may be given to prior good character in circumstances where emphasis is to be given to general deterrence and that is also reflected in the orders that I propose.
It is submitted on behalf of the prisoner by reference to the mental condition of the prisoner that I may have regard to those matters that are discussed in summary for example by McLennan CJ at CL in the decision of De La Rosa [2010] NSWCCA 194, particularly at [177] - [178]. The helpful submissions of counsel for the prisoner appear to me to cite the wrong paragraph numbers given what I have read from my copy of the judgment. I am aware of the fact that his Honour has reflected upon the relevance of mental illness or mental disability in the sentencing for offenders under Commonwealth law. The principles he outlines citing many authorities going back many years are also recognised in State law.
In this particular matter however I have difficulty understanding, beyond the general suggestion of an underlying dysthymic disorder, any particular mental illness or disability that might substantially mitigate the appropriate sentence. Some of the matters of course observed by his Honour and as I understand it, adopted by the majority of the Court in De La Rosa are not relevant. There is no term of imprisonment that will be actually served at this point, so his conditions of custody are not a relevant consideration. In my view in this particular matter given the absence of any predatory conduct on his part or a risk of paedophilic behaviour in the future there is no need for specific deterrence to be given particular weight. In this particular matter I would understand that it is submitted that what is opined particularly by Mr Borenstein, and is hinted at by Dr Baron, may give lesser weight to general deterrence in the context of the prisoner not suffering from a condition that makes him a risk to others as was discussed by Gleeson CJ in the decision of Engert, one of the many decisions cited by the Chief Judge at Common Law in De La Rosa. Here it seems to me, with respect, I could not possibly conclude that there was a relevant mental disability or mental condition that substantially impacts upon the appropriate approach to sentencing in this matter. However, having noted what Dr Baron has said, there is to be fairly understood a number of aspects of the prisoner's personality that were at work in the context of the offending behaviour and it is to be fairly said that there is absent any particular condition that renders the prisoner a danger to others. But, as Gleeson CJ pointed out in Engert, that may not of itself necessarily require the imposition of a lesser sentence. I accept as I have earlier pointed out the attempts made by the prisoner to address underlying matters that may have contributed to his yielding to the temptation offered by the assumed identity and I have reflected upon that in summarising the material provided by Dr Baron.
In this regard by reference to the matters arising under s 16A(2) I accept the submission of counsel for the prisoner that the prisoner's prospects of rehabilitation are excellent and I also accept that the prisoner is a person who is as assessed at the present time, unlikely to reoffend.
There was submitted by counsel for the prisoner in putting the matter squarely to the Court that the Court may consider an alternative to full time imprisonment or a term of imprisonment referring the prisoner for an ICO assessment. Both parties, to be complete in this regard, not only provided useful written submissions but they supplemented their written submissions by oral submissions which I have obviously taken into account. It was specifically put on behalf of the prisoner, and I accept, that within the range of offending of this type, the offending with which I am concerned is at the lower end of the scale for the reasons I have outlined. The Crown ultimately in reply to the oral and written submissions of the prisoner, whilst submitting that I should impose a term of imprisonment indicated, although of course neither the Crown nor I are bound by the submission, that I could consider some alternative to full term imprisonment.
With regard to the submission however of the prisoner to which I have referred, in considering that I should impose a term of imprisonment but reflecting upon whether I should impose an order that was an alternative to full time custody, I have concluded, primarily because of what is in the Community Corrections Service report, that no advantage to the community would arise from imposing a term of imprisonment to be served by Intensive Correction Order. In that regard, I particularly note what is said at the top of p 4 of the Community Corrections Service report. I bear in mind that 'community service' is a part component of an Intensive Correction Order and that whilst the prisoner has been assessed as suitable to perform community service work, it is considered, "He would not benefit from available developmental programs" due to the fact that there are not any appropriate programs available and because the prisoner has engaged in a "specially qualified psychologist."
I am of the view that whilst with Dr Baron he is in professional hands and the matter in my view would be best left as requiring supervision by the Community Corrections Service for such time as they deem appropriate, on the understanding that the prisoner continued his therapeutic relationship with Dr Baron. Otherwise, all other matters that have been cited or referred to in written and oral submission I have taken into account. Could you stand up please Mr Morrison.
In relation to the offence to which you have pleaded guilty taking into account the matter on the Form 1 pursuant to s 16B(a) Crimes Act (CTH) 1914 you are convicted. I sentence you to one year and six months imprisonment. I direct that you be released forthwith upon you entering a recognisance pursuant to s 20(1)(b) Crimes Act (CTH) 1914 yourself in the sum of $500 without surety to be of good behaviour for a period of two years and six months from this date and to appear to receive sentence if called upon to do so at any time in respect of any breach within the said period. A further condition of the recognisance is that you are to accept the supervision and guidance of an officer of the New South Wales Community Corrections Service for such period as the Service deems appropriate and obey all reasonable directions of that Service and that you report to the New South Wales Community Corrections Service within seven days of today at the Sydney City Community Corrections Service Office which I believe you know the location of because that is where the report tendered in this Court came from. Yes Mr Crown any application from you?
CRONER: Your Honour I make an application for a forfeiture order in relation to the Apple iPhone that was used in the commission. I hand up the form with that order. I'll also hand up the child protection registry paperwork which is just to go on the file, your Honour doesn't need to look at that.
HIS HONOUR: Thank you. Do I have to sign anything or -
CRONER: You will have to sign the order your Honour.
HIS HONOUR: I know I have to sign the order but as to the child protection material do I have to sign anything in that regard?
CRONER: No your Honour you don't, just place that on the file.
HIS HONOUR: Any objection to the making of the order sought by the Crown?
MIRALIS: There's no objection your Honour.
HIS HONOUR: Right well that order will be made today, 22 March 2017. The material relating to the Child Protection Offender's Registration Act will go on the file. Your client understands that he will be required to be registered on the Register?
MIRALIS: He does your Honour.
HIS HONOUR: Right thank you. Mr Morrison you will have to go up to the registry and wait there until the orders are signed by me and you are asked to enter into the recognisance which you will need to do and you must understand you are to be of good behaviour for two-and-a-half years which is longer than the term of imprisonment which I had suspended. The Commonwealth legislation requires me to explain the order to you. If you fail to comply with the conditions of the bond or if you fail to agree to the conditions of the recognisance to use the words under the Commonwealth legislation then you may be called up for sentence, you may receive a notice that will require you to come back to the District Court either before me or if I am dead or otherwise incapacitated or unavailable, before some other judge to be sentenced which may involve either the revocation of the suspension and requiring you to serve a term of imprisonment subject to a recognisance release order after some period of time. Of course the Crown and yourself have rights of appeal, the order I make only lasts as long as it is current of course but that is not my concern at the moment. I am only concerned with explaining to you the orders that I have made in relation to the matter. Is there anything else from you Mr Miralis at all.
MIRALIS: Nothing further your Honour.
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Decision last updated: 06 September 2017