Ryan James Parnell (the offender) appears for sentence after pleading guilty in the Local Court to an offence of using a carriage service with the intention of procuring the recipient to engage in sexual activity with the sender, where the recipient is a person the sender believed to be under 16, contrary to s 474.26(1), Criminal Code Act 1995 (Cth).
The maximum penalty for the offence is 15 years imprisonment. Parliament has also prescribed a mandatory minimum term of imprisonment of 4 years, where an offender has been convicted of a prior child sexual abuse offence: ss 16AAB and 16AAC Crimes Act 1914 (the Act).
On 22 August 2007 the offender was convicted of relevant prior offences committed when he was between 13 and 19 years of age on a victim about 3 years younger than him. The offender was sentenced to a term of 4 months imprisonment before being released on probation for 3 years on condition that he receive mental health treatment.
[2]
Approach to Sentencing
To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
I must have regard to Part 1B of the Act in passing sentence and in particular the matters provided for in s 16A.
A Court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: s16A(1) of the Act The Court must take into account the matters listed in s 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in s 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].
The offender entered an early plea of guilty. The plea of guilty has saved the need for witnesses to be called at trial and there is significant utilitarian value in the plea. By pleading guilty the offender has facilitated the course of justice in circumstances where he had available to him a number of arguments as to the admissibility of the evidence against him. The plea also indicates remorse. The appropriate discount is 25%.
The offender co-operated with the investigation by providing to police the passwords and PIN codes for his devices. The appropriate discount for this assistance is 5%. I will refer to the two discounts collectively as the combined discount.
In applying ss 16AAB and 16AAC of the Act, the following principles set out by Simpson AJA in R v Taylor [2022] NSWCCA 256, apply:
1. There is no legislative prescription that the mandatory minimum penalty can only be passed for an offence within the least serious category of offending: [54]-[56], [67]-[70], [72] and [78].
2. Parameters of sentencing are set, first by legislative requirements and second by common law principles. One common law principle to be applied is that the sentence imposed must reflect the personal circumstances of the particular offender and the particular conduct of the offender when compared to other offenders and offending: [57]-[60].
3. The minimum mandatory penalty must operate as a yardstick. The prescription of a mandatory minimum imports an additional constraint into the evaluation of proportionality but does not eliminate proportionality as an important sentencing consideration. The prescribed sentence does no more than fix a boundary above or below which the sentence imposed may not go: [61]-[63], [66] and [71].
The parties proceeded on the basis that an Intensive Corrections Order was not available for the offence, by reference to s 67 Crimes (Sentencing Procedure) Act 1999.
[3]
Facts
The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed. I have had regard to the particular messages sent by the offender on Instagram.
The offender and XXXX were in a relationship and living together.
In or around October 2021, XXXX had been contacted by a woman on Instagram. The woman told XXXX that the offender had been requesting nude photographs of her via Instagram, using the username 'billybobdude4343'. XXXX confronted the offender about his use of this Instagram account. He stated that he was going to delete the account because he was not using It.
On 5 December 2021, XXXX created a fictitious Instagram account with the username 'gracie_moneio' (the fictitious account). In the account biography, it stated that the user "Gracie" was 15 years old. The profile photograph was of a young female from which the alleged age of the person (i.e. 15 years of age) was not obvious.
On 8 December 2021, using the fictitious account, XXXX sent a request to the offender's "billybobdude4343" account to follow Gracie's account. The offender accepted the request.
Between 5 December 2021 and 18 January 2022, XXXX posted pictures to the fictitious account of the same young female. On 5 December 2021, XXXX posted a picture of Gracie with words overlaid on the picture which read, "Birthday Girl", and the caption, "Take me back to last week #officially15".
On 8 December 2021, the offender commenced communicating with Gracie. Their conversation began with the offender stating that she was attractive and asking her if she had an "Only Fans" account. XXXX replied that she was 15 and therefore did not have an account.
Between 9 and 25 December 2021, XXXX sent follow up messages. The offender did not respond until 5 January 2022.
On 5 January 2022, the offender recommenced communications with the fictitious account. During the exchange, the offender told Gracie that he was "perving" on her Instagram pictures and asked her to send him a selfie, telling her that she was attractive. He repeatedly asked for pictures and videos and attempted twice to start video chats with Gracie.
[4]
Transmit indecent material
During this exchange, the offender transmitted indecent material to the fictitious account, as follows:
1. in response to Gracie asking him whether he knew how old she was, the offender stated that he did not care and had masturbated over her many times.
2. the offender asked Gracie whether she wanted him to masturbate over her and told her that he "need[ed]" to do so.
On 5 January 2022 at about 1:17pm, the offender ceased communicating with the fictitious account using the 'billybobdude4343' Instagram account.
On the evening of 5 January 2022, the fictitious account received a follow request from another Instagram user, with the username 'jackk_fire'. XXXX accepted the request.
Between 5 January 2022 and 13 January 2022, the offender communicated with the fictitious account using the 'jackk_fire' account. During these exchanges, the offender continued to transmit indecent material to the fictitious account.
On 5 January 2022, the offender sent the following messages to the fictitious account:
1. the offender requested a selfie from Gracie and then sent a video depicting himself masturbating;
2. in response XXXX sent a short video of a young female poking out her tongue, the offender requested another video depicting her blowing him a kiss, then sent a further video of himself masturbating. He repeated his request for a video of her blowing him a kiss and sent a further video of himself masturbating;
3. the offender told Gracie that he thought she was very attractive, that she made his penis erect and that he could not stop masturbating over her. He asked her again for another selfie of him blowing her a kiss to masturbate over.
On 6 January 2022, the offender sent the following messages to fictitious account:
1. after XXXX asked the offender how he was, the offender responded with a video depicting his erect penis. This video was followed by messages that his penis was "hard", that Gracie made his penis erect and that he was going to masturbate over the pictures posted to the fictitious account;
2. the offender asked Gracie twice for a picture or video to masturbate over and then said that he masturbated over her a lot;
3. the offender asked Gracie to masturbate over him;
4. the offender said that every time he went on the Instagram app, he would end up masturbating over her;
5. after XXXX sent a video of a young girl poking out her tongue with an eggplant sticker on her face, the offender sent a video of himself naked and masturbating. In the video, he can be heard saying "Grace";
6. the offender told Gracie that he was "obsessed" with her and then sent a video of himself masturbating;
7. XXXX sent a selfie of a young female with kisses on her face. The offender told her that he was masturbating over her selfie and XXXX told him she wanted to see him masturbating. The offender replied asking her for a video or another selfie and told her that he only masturbated over her;
8. XXXX told the offender that she wanted to see what he was doing and the offender sent her a video of himself masturbating, in which he can be heard saying that he was doing it for her.
On 8 January 2022, the offender sent the following messages to the fictitious account using the 'jackk_fire' account:
1. the offender stated that he could not stop masturbating over her;
2. after XXXX asked what the offender was doing, the offender responded that he was at the pub, but was getting an erection looking at her photos;
3. the offender requested a selfie from Gracie to masturbate over when he got home;
4. the offender asked if she liked that he masturbated over her;
5. after XXXX sent the offender a further selfie-style photo, the offender replied that he was going to masturbate over the photos she had sent him. He told her that she was all that he masturbated over and that she made his penis erect;
6. towards the end of the conversation, the offender asked for another selfie and said that he had an erection over her.
[5]
Transmit Child Abuse Material
Using the 'billybobdude4343' account, the offender transmitted child abuse material in the form of text messages on 5 January 2022. The offender asked Gracie whether she played with her "ass hole" every night and told her that he liked to engage in anal play with "young girls". He told her that he wanted to engage in anal play and anal sex with her.
In addition, the offender transmitted child abuse material in the form of text messages to the fictitious account using the 'jackk_fire' account from 5 to 11 January 2022.
On 5 January 2022, when the offender commenced communicating with the fictitious account using the 'jackk_fire' account, in response to a question about who he was, the offender stated that he was the man masturbating over her and particularly over her telling him that she liked anal sex.
On 6 January 2022, the offender said that he wanted to shove his penis in her mouth and to have anal sex with her.
On 8 January 2022, the offender said that he wanted to have anal sex with her, and that he wanted her to perform oral sex on him and other sexual acts.
[6]
Solicit Child Abuse Material
On 8 January 2022, the offender solicited child abuse material from Gracie. He asked for pictures of her in her underwear to masturbate over. He sent similar requests on 9 and 11 January 2022.
Further, the offender sent communications to Gracie with the intention that she observe him masturbating via Instagram video chat.
On 6 January 2022, between 10:05am and 10:06am, the offender tried to commence a video chat with Gracie three times. She did not answer any of these calls. The offender told her to "answer quickly" and turn the volume down, as he wanted to masturbate over her.
On 11 January 2022, the offender asked for a selfie of Gracie for him to masturbate over. She replied that she could not send a selfie as she was out. The offender then sent a video of himself playing with his penis in bed, followed by a message stating that he needed to see her face. The offender sent another video of himself playing with his penis and then attempted to start a video chat with Gracie, which she did not answer. He then asked for a picture and Gracie expressed some concern that she did not know the person messaging her was the offender. In response, the offender sent her another video of himself playing with his penis in bed. Later in the conversation, the offender tried to commence another video chat and again, Gracie did not answer. The offender again tried to encourage her to answer the chat by stating that she was all he masturbated over.
On 13 January 2022, the offender attempted to start a video chat via Instagram, but Gracie did not answer. He asked her for a selfie, and she said that she could not send him one as she was out with her mother. He asked her for an old selfie and for her to tell him to masturbate over her.
[7]
Arrest
XXXX reported the above conduct to police.
1. Police arrested the offender and offered him the opportunity to participate in an electronically recorded interview, which he accepted. In his interview, the offender stated the following: hatt he did not remember the usernames he used on Instagram.hatt he followed "glamour girls" on Instagram, all of whom were "legal age" and over 18.
He did not admit that he recognised the usernames 'jackk_fire' and 'gracie_moneio'. When shown a video depicting himself sent to the fictitious account by 'billybobdude4343', the offender stated that the person in the video looked similar to him but did not agree that it was him in the video.
He denied that he committed the committed the offence.
[8]
The Offender's Case on Sentence
The offender tendered the following documents:
1. psychological report of Dr Anthony Diment dated 21 April 2023;
2. offender's letter to the Court dated 27 April 2023;
3. letter from the offender's parents dated 24 April 2023;
4. letter of XXXX (friend) dated 26 April 2023; and
5. letter from XXXX (employer) dated 24 April 2023.
The following is a precis of the evidence relied on by the offender.
The offender was born in 1986 in Brisbane. He is the eldest of two siblings born to his parents' union. His father was in the Navy and his mother worked part-time. He has a positive and supportive relationship with his parents and sister.
The offender had a stable childhood. He attended Cannonvale Primary School and finished Year 12 at St James College in Brisbane. The offender enjoyed school and reported that he was above average academically.
After leaving school, he did three Certificate IVs at TAFE in Carpentry, whilst finishing an apprenticeship specialising in wharf and bridge construction. He was, until recently, working as an Acting Leading Hand for Polaris Marine Constructions and had worked for this company for 13 years. The offender has obtained a number of further qualifications, including his Coxswains ticket, Crane Operators ticket, Forklift licence, Rigging ticket and Working at Heights ticket. Mr Mitchell, the Maintenance Works Manager, described the offender as passionate about his job and a good employee with whom he has a close relationship. Mr Mitchell stated his intent to re-employ the offender upon his release from custody.
The offender has had a few intimate relationships. He met XXXX at his local pub two years ago and they started dating. The offender told Dr Diment that XXXX has schizophrenia and bipolar disorder. After they moved in together, the offender found it increasingly difficult to deal with her mental illness. The offender reported that she would self-harm when they got into arguments and would threaten to take her life if he left her.
The offender told Mr Diment that he did not have a sexual interest in underage girls.
The offender started consuming alcohol and smoking cannabis at around age 16. He reported that he preferred smoking cannabis and did so frequently until around age 18. He stated that he never had any issues with the random alcohol and drug tests that he had been subjected to in the construction industry. He did not consume drugs again until his relationship with XXXX, when the offender reported that he started using cocaine and drinking alcohol to excess. He attributed this to feeling overwhelmed at work and because he also stated that he was not coping with his relationship and XXXX's behaviour. He has now ceased using cocaine.
Of his offending behaviour, the offender told Dr Diment that he never intended to actually meet the person that he was messaging. He expressed his regret to Dr Diment and in his letter to the Court and recognised the impact that his messages would have had if he had been messaging a real 15-year-old. He stated that he has lost some friends over his offending behaviour and has been banned from his local pub. He expressed his regret also for the burden that his behaviour has placed on his family.
In their letter to the Court, the offender's parents stated that he is remorseful and ashamed of his actions. They wrote that after serving his sentence for the prior Queensland convictions, he had rebuilt his life and is well-regarded in his profession. They also stated that they do not believe that he has a sexual interest in underage girls and they have never witnessed him behave inappropriately around young girls in social or family situations.
Ms Scott, a family friend of the offender's, stated in her letter to the Court the offender had never acted inappropriately around her 9-year-old daughter and that she has no hesitation in allowing the offender to be in the company of her children.
Dr Diment diagnosed the offender with Persistent Depressive Disorder with Anxiety and Substance Use Disorder (cocaine, in remission). Mr Diment stated that both anxiety and depression can impair a person's usual thought processes and appropriate decision-making, especially in the context of heightened emotional arousal, as existed for the offender at the time of offending in the context of his relationship with XXXX. Dr Diment opined that there was therefore a causal link between the offending behaviour and the offender's mental health at the time.
[9]
The nature and circumstances of the offence
There were no children involved in the creation or transmission of the messages on Instagram and there was no risk that the material would be seen or accessed by vulnerable persons.
The messages involved the description of masturbation and various forms of sexual intercourse. The offender sent videos of himself masturbating and tried to establish live video chats on a number of occasions. The sexual activity referred to did not involve cruelty or depravity.
The offence involved a series of criminal acts. The interactions involved one fictitious young person and occurred over a relatively short period being between 5 January 2022 and 13 January 2022. The offender did not send messages on a number of days in the relevant period and each interaction was relatively short.
The material was sent for the offender's own sexual gratification and he acted alone. There was no evidence that the material was created for the purpose of being sent to anyone else, or that it was in fact sent to anyone else. There was no evidence of the offender trying to meet the fictitious young person to engage in sexual activity.
The offence was not planned or sophisticated. The offender relied on the anonymity provided by the internet but did not engage in deception in order to communicate with the fictitious young person. The Instagram platform allows users to select their own username and I am not satisfied that the use of the Instagram handles by the offender involved any intent to avoid detection or dupe the intended recipient of the communications.
The age gap between the fictitious young person and the offender was significant, but at 15, the fictitious young person was within 12 months of the age of consent.
The profile of the fictitious young person and one of the initial messages stated that she was 15 years of age. The offender quickly turned the discussion to sex and was persistent in doing so. His messages involved a clear intent to engage in sexual activity with a person he thought was 15 years of age and I am satisfied that he knew that was wrong by reference to the harm it could inflict on such a person.
The use of the carriage service to permit the messages to be exchanged was promoted by XXXX. She created the fictitious account and sent a number of messages that kept the offender engaged in communication through the period. Some of the messages encouraged the offender to respond. In the context of the messages, I am satisfied that XXXX knew that, by sending the responses that she did, the offender was likely to provide sexualised responses. In so doing, XXXX probably committed the same offence, but she has not been charged.
This offence can and should be distinguished from the activities of an undercover police officer seeking to engage offenders on known internet sites or as a result of information received about an offender's proclivity. There was no evidence that the offender had such a proclivity, apart from his enthusiasm to engage in communicating with the fictitious young person. His prior convictions were committed more than 16 years ago at a time when he was fairly close in age to the victim. He has been on the offender's register for a considerable period with only one minor breach of the onerous requirements. The fictitious account was created, and the communications were entered into by XXXX with the intent to harm the offender. I am satisfied that XXXX knew of the offender's criminal history and sought to use it against him as a means of controlling him.
In the lead-up to the offence, XXXX's mental health was in serious decline. She exhibited controlling and manipulative behaviours in the relationship including episodes of self-harm for which she was hospitalised. The offender was struggling to deal with the stress of dealing with XXXX's erratic and disturbing behaviour as her primary support, as well as the demands of his work against a background of chronic depression and anxiety. He self-medicated with alcohol and cocaine. I accept Dr Diment's opinion that his mental condition and substance use together with his heightened emotional arousal impaired his judgement and led to poor decisions through a failure to consider the consequences of his actions, in the context of his other problems. I am satisfied that there was a causal connection between his mental condition and the offending conduct. In all of the circumstances, his moral culpability for the offence is reduced.
I have taken into account the maximum penalty and the mandatory minimum term as yardsticks in arriving at the appropriate penalty.
Taking into account all of these matters, I am satisfied that the offence falls in the low range of objective seriousness.
[10]
Contrition and remorse
The offender has expressed remorse to Dr Diment, to his family, to his referees and to the Court. In those expressions he has demonstrated insight into the potential harm arising from his actions and accepted responsibility for his actions. I am satisfied that he is truly contrite.
[11]
Deterrence
General deterrence has been expressed as a paramount consideration for similar kinds of federal offences by the intermediate appellate courts.
There is a need for specific deterrence but it is significantly reduced. The offender presents a low risk of reoffending. I am satisfied that the offender committed the offence as a result of being placed in a very stressful set of circumstances and then being provoked by XXXX. The offender has good family support, stable accommodation and long-term employment. He is amenable to engaging in interventions and I am satisfied that his risk factors for recidivism can be significantly reduced, if not eliminated, through appropriate treatment.
[12]
Character, antecedents, age, physical and mental condition
The offender is presently 36 years of age.
He was 21 when he was convicted of the previous offences. The first of the offences was committed when he was about 15 years of age. Whilst his prior convictions prevent him from being a person of good character, he has lived his life as a productive member of the community after he was released from gaol. He has an excellent work history and has progressed to being a trusted leading hand. He has assisted his parents financially to pay off their home and he has undertaken building work for them. He has been involved in community sport. His referees describe him as honest, compassionate and hardworking.
The offender is physically fit and healthy. He has suffered from long standing symptoms of depression and anxiety. His mental health suffered significantly when he was living with the consequences of XXXX's mental conditions. It is also significant that this was the first time that the offender had lived with a partner. I accept the evidence of the offender's parents that the relationship was "toxic", "destructive" and that she sought to control him through threats of self-harm. I accept that he suffered substantial psychological distress and emotional pressure as a result of XXXX's behaviour and that he sought to alleviate those conditions by drinking to excess and using cocaine. In combination, these matters impaired his judgement and negatively impacted his capacity for consequential thinking. Further, these proceedings continue to have a negative impact on his mental health. He is scared for his safety if he was to be incarcerated as a result of publicity surrounding the case.
[13]
Prospects of rehabilitation
The offender has demonstrated in the past that he has excellent prospects of rehabilitation. I note that despite the conditions on his probation that he did not receive psychological treatment, as was intended by the sentencing judge. As a consequence, his mental condition probably deteriorated in the period between his release from custody and the time of the offences. He is willing to engage in interventions and I am confident that he will do so willingly and with the support and encouragement of his family and employer. He demonstrates good insight into the need to deal with his longstanding depression and to avoid illicit drug use.
[14]
Extra curial punishment
The offender has been the subject of adverse publicity in the media and social media for his offending conduct. He has been excluded from activities in his community and has lost friends and the respect of acquaintances. He has been publicly humiliated.
The offender's parents have also been subjected to unwanted contact as a consequence of the media interest in the proceedings.
[15]
Comparable sentences
Apart from Taylor, there are no intermediate appellate sentences applying the mandatory minimum sentence provisions and accordingly the utility of the exercise is even more limited than usual: Hili v The Queen (2010) 253 CLR 58 at [18].
However, a simple comparison of the facts and circumstances in Taylor to the facts and circumstances of the present case clearly supports the conclusion that the present case warrants a substantially lower sentence.
[16]
Pre-sentence custody
The offender has served one day of pre-sentence custody. I will backdate the sentence imposed to yesterday to reflect that period.
[17]
Penalty
The appropriate term of imprisonment in this unique case is well below the mandatory minimum sentence. However, I am required by s 16AAB of the Act to impose the mandatory minimum sentence for the offence, which can only be reduced by 30% for the combined discount.
But for s 16AAB of the Act, I may not have been satisfied that the threshold in s 17A of the Act had been crossed. However, parliament has decided that a term of imprisonment must be imposed, so on that basis I am satisfied that no other sentence is appropriate.
Ryan Parnell is convicted.
I impose a term of imprisonment of 2 years and 10 months to date from 24 May 2023 and expiring on 23 March 2026.
The Court must not make an order immediately suspending a term of imprisonment for a Commonwealth child sex offence, including the present offence, unless it is satisfied that there are exceptional circumstances for doing so.
Taking into account all of the circumstances in combination, I am satisfied that there are exceptional circumstances warranting the immediate suspension of the term of imprisonment. This is a unique case. The offence was committed in the context of a controlling and emotionally manipulative relationship in which the offender's partner has sought to use the criminal law for her own purposes. The offence is in the low range of objective seriousness. The offending conduct occurred over a short period. The end of the relationship brings with it the removal of the risk factors that led to the offending conduct. The offender is willing to engage in interventions and the penalty imposed on him will impact his freedom significantly and thereby reflect general deterrence and denunciation and be a punishment of appropriate severity.
Pursuant to s 20(1)(b) Crimes Act 1914 (Cth), I order that the offender be immediately released on entering into a recognisance in the sum of $1,000 to be of good behaviour for 5 years. The further conditions of the recognisance that will apply for 5 years from today are that:
1. the offender accepts the supervision of a Community Corrections Officer;
2. the offender obeys all reasonable directions from Community Corrections;
3. the offender is not to travel overseas or interstate without the written permission of Community Corrections; and
4. the offender to undertake such treatment or rehabilitation program as reasonably directed by Community Corrections.
If the offender fails to comply with the recognisance release order, further action may be taken against him. This may require him to return to court.
[18]
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Decision last updated: 30 May 2023