R v RAYFIELD [2017] NSWDC 174 | Case summary

R v RAYFIELD [2017] NSWDC 174 | Case summary | Zoe

[5]

1 August 2016

The next chat session between the offender and the AOI occurred on 1 August 2016 using Skype. The offender was again informed of the age of the AOI. He informed the AOI that he was 58 years old and stated "U know I am way older don't you". He subsequently stated "your 16 I seem to think" to which the AOI responded "no im 14 silly…is that ok". The offender responded "Yes…as long as ur comfy" and then stated "I don't want to have u feel uncomfortable…ur young an still maturing…some girls ur age can be very open an playful…but I never assume either".
The offender engaged in sexually explicit conversation with the AOI, asking her whether she had engaged in masturbation or watched pornography, and if it made her feel aroused. When the AOI responded that she had seen a video of a "guy and girl doing it" the offender responded "Doing it is different to playfull as in oral getting ur pussi licked"…"wen ur older I hope u would like a tongue to take over n lick n explore n taste u". The AOI asked if that would feel good, and the offender responded "I know I have loved to lick n make a girl cum from oral".
Later during the same chat the offender asked the AOI "Should I come shower or bath you lol to relax u". The AOI said she would probably have a shower not a bath, to which the offender responded "has ur shower room for 2". He continued to chat with the AOI about having a shower with her, whether she would be shy undressing and being naked in a shower and whether she would be nervous to "see the guy get umm…aroused".
During the same chat the AOI asked the offender what he looked like and he told the AOI that he was 5ft 6inches tall, with hazel eyes and light hair and that he weighed approximately 69kgs. The AOI told the offender that she was not that tall, that she had short brown hair and she was kind of thin, about 45kgs. The offender responded "Ur cute n sweet an at 14..The most umm shy/an not sure girl I have chatted to".
The offender ended the chat by stating "I gtg…my wife would kill me if caught chatting let alone flirting to u…so would ur MUM".

[10]

8 September 2016

The offender and the AOI engaged in a Skype conversation on 8 September 2016 and during that chat the offender provided the AOI with his mobile phone number.
The following online communication took place: Offender: "Your so sweet n young…I never know if your just coy or like to play innocent" AOI: "coy?" Offender: "Coy…sorta pretends to not know much I guess" … Offender: "I am way older an I don't want to feel u think I pressure u or groom u as they say" Offender: "Ur aware of men grooming teens to try have sex arnt you" … Offender: "Ur not a kid…your a young lady…an teens can be hard sexually also"
The offender and the AOI continued conversations of a sexual nature and the offender asked the AOI whether her school friends were virgins and what time her mother would be home. He then wrote to the AOI: "Ur mum might not be to happy that I caressed my hands up the back or your legs n thighs though".
At 4.23pm the AOI called the offender and engaged in a phone conversation which was electronically recorded.
The following conversation took place: Offender: "…I mean, I try to be as open as I can. I, I don't want to mislead and, and as I say, I don't want to be seen to be grooming you either when, like, say 14, it, it's young but I've spoken to 14 year old's before. Some are, some are very much wilder than you" AOI: "Mmm" Offender: "Very, very deep, more than streetwise. Oh, but then you don't really know who you're talking to unless you see a, like, a video or whatever or a, or a can [sic]." … Offender: "Yeah. I mean, then there's a lot of people who just want to get into your pants and, but that, that's wrong. I mean, yeah, it's, yeah, I still rather respect you as a person and as a woman than, than just think, oh, you're just a, a toy to get off or the like". AOI: "And that's why I trust you cause it's like you care about me and stuff". Offender: "Mmm, well, I do. I mean, I'm a dirty old man, I guess, but by the same token…stuff's about passion. If you just want a quick root well, I mean, that's, hopefully, that's not how you want to be in life".

[19]

6 October 2016

At approximately 4:15pm on 6 October 2016 the offender and the AOI engaged in an online conversation using Skype. The conversation concluded at approximately 5:42pm. The offender initiated and engaged in sexually explicit chat with the AOI. He asked the AOI was she was wearing and if she was wearing a bra. He described undressing the AOI and touching her in a sexual manner: Offender: "Your eyes smile an I feel a lil tense but rub those thighs n gently press at your shorts n feel ur warmth n desire" AOI: ":)" AOI: "so wot u doin then? Offender: "Is that tie for your short inside or out for me to undo" AOI: "it inside" Offender: "U feel hands roll the shorts at your wait n lips pull that bow tie to undo" AOI: "yeh" Offender: "Would u slide from my knees n let hands roll those shorts to the floor for you to step out of" AOI: "k"
The offender asked the AOI what kind of underwear she was wearing. He then described performing oral sex on the AOI: Offender: "Lips would pull those nickers a bit lower to near your clitty" AOI: "wow omg" Offender: "Kisses tease above your mound n soft bytes tease n delight ur desires" AOI: "ok…must feel amazing: Offender: "Do u mostly trim…or shave where u feel lips press n kiss" AOI: ""ummm no" The AOI asked the offender what he was doing while they were chatting. The offender told the AOI that his penis was erect: AOI: "wot u doin tho?" … Offender: "Wat do u imagine I am doing as I am suggestive n caress your cute buttocks an nibble ur tummy" AOI: "lol I dunno wot guys do :D" … Offender: "While your clitty awakens n tingles things swell up here an feel nice"
The offender then told the AOI that he was masturbating and asked if she liked to touch her genital area. He also asked her if her nipples were erect. The offender then again described performing oral sex on the AOI: Offender: "Wat do u think I want" AOI: "mmmm I dunno" Offender: ":P Your so sweet you know" Offender: "I could eat u know if I layer u back across ur bed" AOI: "mmm wen u wanna do this tho?" Offender: "Is chat…I could eat u now n pull those nickers down n lick till u cum on my tongue" AOI: "k" Offender: ":P (kiss)"
Later in the online conversation the AOI and the offender again discussed a possible meeting at Caves Beach. The AOI said that she could text the offender if he was interested in meeting. The offender replied "wat are you comfy with…would u like to catch up…or wait till I am in Syd". When the AOI asked if the offender could come to Caves Beach he replied "I should be able to yes..have u a time in mind for wed". When the AOI said that she trusted the offender he replied "I am ok with that…it lunch an talk..nothing more ok". The AOI and the offender tentatively arranged to meet at 11am on Wednesday 12 October 2016. After discussing details about arranging to meet the offender stated: "I need to zip up an go home…have u some ice to make him settle down". The offender confirmed he was referring to his penis being erect.

[21]

THE NATURE AND CIRCUMSTANCES OF THE OFFENDING

The following factors are relevant to an assessment of the nature and circumstances of the offending: 1. The duration of the offending - between 27 July 2016 and 12 October 2016 (approximately 2½ months). During this time the offender communicated with the AOI on at least 18 occasions. 2. The offender was aware of the assumed age of the AOI, namely 14 years old at the time of the interaction. 3. The offender was 59 years old as at the date of the offending. 4. The communications eventuated in a meeting being arranged between the offender and the AOI. 5. The type of the sexual activity discussed included sexual intercourse, specifically, "pull those nickers down n lick till [she] cum on my tongue." 6. The nature and extent of discussion of sexual activities with the AOI. On many occasions the offender informed the AOI that he was masturbating during their conversations. He also asked the AOI if she masturbated, whether she was a virgin, whether she had hair on her "pussi".
The Crown has submitted that the fact that the "victim" was an assumed identity does not reduce the objective seriousness of the offending. Mr Preece on behalf of the offender submitted that the is some reduction in culpability because there is no injury, harm or loss from the offence (see s16A(2)(e), Crimes Act).
Having regard to the remarks of McClellan J in R v Fuller (2010) NSWCCA 192 at 35, I am not satisfied there is any reduction in culpability. McClellan J stated as follows: "Although an offence may be more serious when communication is made with an actual child and harm is done to that child, the primary object of the legislature in creating the offence was to prohibit the use of the internet by persons intent upon communicating with young persons for sexual purposes. Although the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it".
This offence was a course of conduct involving a series of criminal acts (s16A(2)(c), Crimes Act).
General deterrence is a significant consideration when sentencing for this offence. Such offences are often a prelude to much greater destructive behaviour, they are extremely difficult to detect, and they are particularly exploitive of children. Such conduct has properly been described as being abhorrent (see Second Reading Speech 24 June 2004).
In R v Asplund [2010] NSWCCA 316 McClellan CJ (with whom Latham and Price JJ agreed) said as follows: "The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentence of appropriate severity."
The offender pleaded guilty. I am satisfied that the plea demonstrates genuine remorse, acceptance of responsibility and a willingness to facilitate the course of justice. I propose to allow a discount of 25%.
I am satisfied that the offending falls below the middle of the range of objective seriousness for this type of offending having regard to all of the matters referred to above.

[22]

SUBJECTIVE CIRCUMSTANCES

The offender is now 60 years old.
The following material was tendered on his behalf at sentence:

EXH 1: Judicial Commission statistics
EXH 2 : 3 x District Court decisions
EXH 3: 8 x References: 1. Geoffrey LILLIS dated 5.6.17, 2. Helen DOUNIS undated, 3. Lynette MCALLISTER dated 17.5.17, 4. Vicki SANTAMARIA dated 20.5.17, 5. Grant EVERY-BURNS dated 15.6.17, 6. Tom TAYLOR undated, 7. Robert ROBARDS dated 12.6.17, 8. Nerida RAYFIELD dated 28.8.17.
EXH 4: Letter from offender dated 14.6.17
EXH 5: Forensic psychologist report under the hand of Caroline HARE dated 29.5.17.

The offender gave evidence. He told the court he recognised that he had "stuffed up badly." He said he was remorseful and ashamed particularly because he has betrayed his wife. He said he has disclosed his offending conduct to his family and they remain supportive of him. He had sought help from Dr Stuart Edser after his arrest and undertook 8 or 9 sessions. He said he could not explain his conduct and he is extremely sorry. He still cannot explain why he acted as he did. He acknowledged that he has the ongoing support of his family. He said he has always accepted responsibility for his conduct.
In cross examination he agreed that speaking to a 14 year old online was not out of character for him. He acknowledged at the time of his arrest he was addicted to online chatting.
It was suggested to him during cross examination that there was a sexual motivation to organising the meeting with the AOI. He did not agree with that suggestion. He said he did not know why he chose to meet with the AOI.
In re-examination he said there was a lot happening in his life at the time of the offending including he was turning 60, his eldest sister had terminal skin cancer (she passed away during offending period); \emotionally he was "not where I should be"; and he regarded chats as a diversion from life.
The offender's daughter, Elizabeth Bennett, also gave evidence during the sentence proceeding. She is 30 years old. She said the offender has apologised for his conduct and has the full support of the family and friends.
The offender's background is set out in the report of Ms HARE, Forensic Psychologist (EXH 5).
The offender grew up in the Lake Macquarie area. There were seven children in his family. He was the middle child. It was a loving and supportive home and he had an unremarkable childhood.
He was an average student at school and left in year 9. He immediately began work in the Public Service where he remained until obtaining employment with a power station in 1982 (aged 25 years). He has been employed in various roles with that company until he ceased work in October 2016 aged 59 years. Prior to his retirement he had been employed in the IT department for a number of years.
He has been married to his wife since 1980. They shared a positive relationship and she remains supportive of him. The have three children aged 30, 28 and 26 years. They also remain supportive of him.
The offender told the psychologist he was in good physical health.

[23]

CURRENT OFFENDING

The offender told the psychologist that he began using adult online chat rooms a decade ago. His use over the last 5 years escalated to up to 4 hours a day. He was described by the psychologist as "experiencing symptoms consistent with dependence on the communication and positive reinforcement he was receiving" (p8/18).
It was in the context of excessive use of chat rooms that he began chatting to 'Jessica' (AOI).
He justified the continuation of the chats on the basis that "it's just chat", and reasoning that she must be enjoying it as she gave "no indication to stop".
When speaking to the psychologist, the offender was unclear why he decided to meet up with 'Jessica' and denied sexual motivation for the meeting.
To the extent that the offender asserts there was no sexual motivation for the meeting with 'Jessica' I reject his evidence. In my view such a motivation is wholly apparent when one has regard to the preceding communications. The psychologist was of the view this reflected "his current limited insight into his offending" (p15, EXH 5).
In relation to the offender's mental health he was considered to be experiencing a mild level of psychological distress shortly after his arrest and was referred by his GP for psychological counselling.
The psychologist was of the opinion that the offender has some improved insight into his offence pathway. She gave the following examples: "he identifies his unresolved grief following the deaths of his mother and sister, and his difficulty coming to terms with the process of aging and retirement as contributory factors that culminated in a feeling that "everything was closing in", which he sought to alleviate through increased engagement in compulsive online chatting."
Psychometric testing disclosed that the offender is relatively emotionally well-adjusted and is not currently suffering from a clinical disorder.
The offender was assessed as having an average risk level for re-offending using the Static-99R actuarial risk assessment and as having a low dynamic risk of re-offending using the Risk for Sexual Violence Protocol (see p13 EXH 5). The psychologist lists a number of factors that inform the risk assessment as follows: a) Some limited awareness of the factors and processes that placed him at risk of committing a sexual offence; b) Some evidence of minimising his sexual offending behaviour - for example he denies sexual motivation for the arranged meeting; c) Some evidence of increasingly diverse offending - he progressed from chatting sexually to 'Jessica' online, to speaking to her on the telephone and then arranging a meeting; d) Some use of cognitive distortions (or 'comfortable stories') that enabled his offending - for example, telling himself 'it's just a chat' and 'The conversation wouldn't continue if she didn't want to talk'; e) Some problems with physical and emotional intimacy within his marriage".
Having regard to the factors identified it is somewhat surprising in my view that his overall assessment was as low risk. For the purposes of sentencing I find his risk of re-offending as low to average range.
In relation to the offender's remorse and contrition the psychologist was of the opinion that the offender "continues to lack some insight into what placed him at increased likelihood of engaging in the conduct." (p15, EXH 15).
The psychologist made a number of recommendations in relation to the offender's treatment.
Also tendered on behalf of the offender were 8 references (EXH 3). All those references speak highly of the offender. He is described as reliable, trustworthy, respectful and hardworking. A number describe the conduct as being out of character for the offender.
One of the references was from his wife Nerida RAYFIELD.
She described the offender as a "solid and respected community citizen."
She said the offender was very remorseful for his conduct and also the embarrassment that he had caused the family. She also described the conduct as being out of character for the offender.

R v RAYFIELD

At a glance

Court

Decision date

Source

Judgment (29 paragraphs)

Parties

Cases Cited (8)