The offender has pleaded guilty to one offence pursuant to s 474.27(1) of the Criminal Code 1995 (Cth) ("the Code") of use carriage service to groom a person under the age of 16 years. The maximum penalty proscribed for that offence is imprisonment for 12 years and/or a fine of $151,200.00.
The offending took place between 26 February 2018 and 15 March 2018. The offender was arrested on 18 June 2018 and has been in custody since that date. He entered a plea on 16 October 2018 at the Nowra Local Court and it is common ground that he is entitled to a utilitarian discount on sentence in respect of that early plea.
The offender has further asked that an additional charge of use carriage service to send indecent material to a person under 16 years of age pursuant to s 474.27A of the Code be taken into account on sentence.
[2]
The sentence hearing
The sentence hearing took place at Nowra District Court on 13 December 2018. The Crown Sentence Summary became Ex A. Exhibit A1 was the Agreed Statement of Facts, which may be summarised as follows.
On 26 February 2018, police attached to the Child Exploitation Internet Unit began a covert operation into the online activities of the offender, using an AOI of a 14 year old male. On the same day, police engaged the offender in an online conversation via Facebook Messenger. Messages were then exchanged between the offender and the police between 26 February 2018 and 15 March 2018. The content of those messages established that the offender engaged in grooming as follows:
1. On 1 March 2018, when asked what would happen if the pair met, the offender stated "Well a lot of things to help u decide if you really like guys, and you wouldn't be a virgin at the end" (sic).
When asked if he meant sex, the offender replied, "Ah yes of course, that's the only way to show u what it's like with a guy, and I would like it too" (sic).
1. On the same day, the offender gave a graphic description of having sex with the AOI.
2. On 8 March 2018, the offender sent an image to the AOI of a naked adult male torso with his erect penis exposed, stating the image was of himself.
3. On the same day, the offender stated that he still wanted to meet with the AOI and have sex with him.
4. On 13 March 2018, the offender sent a video to the AOI of a naked adult male masturbating, stating the video was of himself.
5. On the same day, the offender asked if the AOI would like to have sex with him, saying that he would like to have sex with the AOI and would like to see a photo of his body, stating that he still wanted to "meet up", stating that he would "have to find a hotel room somewhere around there".
From 16 March 2018 the accused stopped replying to messages sent by police. Messages sent on 19, 20 and 23 March 2018 by police, attempting to prompt a response from the offender were not responded to.
The offender was arrested on 21 June 2018. He participated in a Record of Interview and made certain admissions to the offences. When asked about his intentions in messaging the AOI, the offender repeatedly stated that he would not have gone through with meeting up with the AOI as he was under the age of 18. He further stated that he could not afford to rent a room in any event. The offender denied having a sexual interest in children.
Exhibit A2 comprised the criminal antecedents of the offender which included one offence in 2015 of destroy or damage property, for which he was sentenced by way of a s 10 bond for a period of 12 months. Exhibit A also included the Crown's submissions on sentence, together with a number of comparable cases, which are referred to below.
[3]
Evidence for the offender
The offender tendered a report of Mr A Fordyce, psychologist, dated 7 December 2018. For the purpose of that report, Mr Fordyce assessed the offender on 19 November 2018 via audio-visual link over a two hour period. The offender was born on 1 August 1967 and was now 51 years of age. The author set out his family and developmental history, noting that the offender had been raised in a positive home environment. However, his relationship with his parents had deteriorated following his marriage. The offender had completed year 10 at school, then completed a one year certificate in engineering through TAFE. He enlisted in the Navy at age 15, following which, he was in constant employment up until the time of his arrest. At that time he was employed as a leading hand for a chemical company.
The author took a history that the offender had married in 1990, had three children and one step-son, but the marriage had deteriorated and he had separated in 2014. His ex-wife suffered mental health issues and they had difficulty maintaining a stable sexual relationship.
Under the heading "Psycho-sexual functioning", the offender reported that he was bi-sexually attracted, but denied acting on those thoughts, as he was in a relationship. He denied having any homosexual experiences beyond exchanging sexual chat with males via social media applications. The author noted that the offender denied being sexually attracted to children and demonstrated a sound understanding of sexual consent. It was noted that the offender demonstrated "a general understanding that children do not have the psycho-social maturity to give consent".
In relation to the offending here, the offender stated that he was not motivated by the age of the AOI in a desire for sexual discussion. The offender stated that he was "looking at him as a kid, trying to help him out". In doing so, he started saying inappropriate things, but could not explain the reason this occurred. The offender stated he would never have done anything that he said, and that he knew it was wrong. The author noted that "his account suggested that he recognised the problematic nature of his communication with the AOI and desisted from the behaviour, albeit after committing the offences".
The offender expressed remorse and contrition for the index offence, saying he felt bad about the offending, even before learning it was the police. He recognised that it would have caused significant psychological impact to the AOI if he had been a real child. On assessment for risk of sexual recidivism, the offender was assessed at a below average risk category for sexual offending. That assessment was based on the combination of his static and dynamic risk factors.
Finally, the psychologist opined that the offender demonstrated some insight into his offending behaviour, expressed remorse and contrition for his offences, and demonstrated victim empathy. He did not "evidence general criminality". Mr Fordyce stated:
"If Mr Roulston can engage effectively in offence-specific treatment to address his criminogenic needs and develop appropriate management strategies for his behaviour, his likelihood of recidivism may reduce."
[4]
The Crown submissions
The Crown submitted that the only appropriate sentence was a full-time custodial sentence. The Crown set out general principles relating to sentencing for sexual offences involving children, including general deterrence, being a primary consideration, there being a paramount public interest in promoting the protection of children.
In assessing the objective seriousness of the offending, the Crown submitted that s 16(2)(a) of the Crimes Act 1914 (Cth) required the court to take into account the nature and circumstances of the offence. It was axiomatic that the nature and number of the communications were relevant to determining the objective seriousness of the offending. The more explicit the communications, the more serious the offending. Here, the communications were highly explicit, describing a variety of proposed sexual acts and details. During those communications, the offender believed the AOI was a 14 year old boy. He sent explicit images of himself, including a video of him masturbating and asked the recipient to send him images as well. He further discussed the logistics of an actual meeting with the recipient and stated his intention to find a hotel room for that purpose.
The Crown conceded that the fact that the offender did cease communications of his own volition, was a relevant matter to take into account, relying Gifford v R [2016] NSWCCA 302 at [41].
The Crown referred to the presumption of harm when children are the victims of sexual offences, including grooming offences. The offence was no less reprehensible in circumstances where the offender was communicating with a fictitious person, relying on Rampling v R [2010] NSWCCA 293 at [37].
In relation to the matters recorded by the psychologist in Ex 1, the Crown submitted that such statements, unsupported by sworn evidence, should be the subject of very considerable caution by the court and could only be given very limited weight.
The Crown submitted that the offender's prospects of rehabilitation were guarded, given that despite admitting his offending conduct, the offender continued to deny a sexual interest in children. The Crown also referred to the need for denunciation and submitted that rehabilitation should be given less weight in matters of this kind, referring to DPP v Garside [2016] VSCA 74 at [63]; and De Leeuw v R [2015] NSWCCA 183 at [70c].
The Crown conceded the utilitarian discount on sentence in view of the early plea of guilty, however, it submitted that that plea was entered in the face of an overwhelming Crown case.
In respect of the subjective matters relied on by the offender, the Crown conceded that the offender's previous offending was unrelated to the present offence, and that the offender was otherwise of good character. However, in offending of this nature, limited weight should be given to the offender's prior good character, relying on R v Gajjar [2008] 192 A Crim R 78.
The Crown then set out a number of comparative cases in a schedule in Ex A5, the closest to the present facts being that Rampling v R, supra.
[5]
The offender's submissions
The solicitor for the offender also relied on a thorough written outline of submissions. It was submitted that the following circumstances affect the assessment of the objective seriousness of the offence:
"(a) The duration of the offending conduct was not lengthy - a period of approximately two weeks.
(b) Unsophisticated and unplanned offending - the offender utilised his own Facebook social media account.
(c) Whilst there was several communications, including the indecent material, the level of communication could not be said to be persistent or remarkably high in number.
(d) The offender ceased communications of his own accord, despite some additional urgings to continue by the AOI and there was no actual victim."
It was conceded that the indecent material transmitted would increase the objective seriousness of the offending in accordance with s 16BA of the Crimes Act 1914 (Cth). Further, it was accepted that whilst the offender was disentitled to any leniency where the grooming activities pertained to a fictitious victim, it was nonetheless submitted that in the absence of any harm caused to the victim, the offending cannot be placed in a high category of objective criminality. It was therefore submitted that the offending was towards the lower end of the range of objective seriousness, albeit not in the lowest end of that range. A substantial hardship of a maximum penalty was thereby avoided.
The offender submitted that he was entitled to a 25% utilitarian discount on sentence in respect of his early plea of guilty and it was also submitted that his good character could be taken into account pursuant to s 16A(2)(m) of the Crimes Act 1914 (Cth), as a matter of relevance, notwithstanding that good character is a less prominent consideration in sentencing for sexual related offences.
Under the heading "Risk of offending", the offender submitted that the opinion of the psychologist, Mr Fordyce, in Ex 1, should be accepted, namely, that the offender was assessed as below average risk of sexual recidivism. Ultimately, it was submitted that the court should find that his risk of reoffending is low.
The offender's prospects of rehabilitation were submitted to be a mandatory consideration pursuant to s 16A(2)(n). It was submitted that there was no evidence of entrenched sexual deviancy which augured well for the offender's prospects of rehabilitation. Further, he was able to articulate his remorse in relation to his criminality to the psychologist. Given a low risk of reoffending, it was submitted that the pathway to rehabilitation was less difficult for the offender compared to an offender with more substantial criminogenic risk factors. If he undertook the psychological intervention suggested by Mr Fordyce, it was submitted he would have very positive prospects of rehabilitation.
The offender submitted that a sentence of imprisonment must only be imposed as a last resort where the court was satisfied that no other sentence was appropriate (see s 17A of the Crimes Act 1914 (Cth). Any sentence should commence from 21 June 2018, having regard to the comparative cases annexed to the Crown's submissions, an appropriate sentence would be approximately 2 years in duration. It was submitted that a shorter period of full-time custody, followed by a longer Recognisance Release Order would amount to a sufficiently severe form of punishment for the offender, given this was his first time in custody, he was at a low risk of reoffending, and he had strong prospects of productive reintegration into the community.
[6]
Crown submissions in reply
In oral submissions, the Crown took issue with the offender's submissions regarding his prospects of rehabilitation. It was submitted that the offender had been unable to provide any plausible explanation for his criminal conduct because it was an uncomfortable truth for him to acknowledge. For him to have positive prospects of rehabilitation, the first important step was for him to acknowledge and accept his criminal behaviour.
[7]
Determination
In R v Asplund [2010] NSWCCA 316 at [48], the Court of Criminal Appeal approved the following factors as relevant to determining the objective seriousness of a grooming offence, as found by the sentencing judge:
"(a) referred to the respondent's conduct as bombardment of CF with indecent suggestion, graphic sexual images, solicit from her the same, all the while remaining anonymous from the authorities, hidden from those who love and have the child's best interests at heart;
(b) noted that the criminality in this conduct was 'the interference with the child's privacy, her right to a healthy psycho-sexual development, by requiring her to feed into and gratify his sexual titillation and fantasies with a long-term view of having her submit to sexual activity with him;
(c) referred to there being an abuse of power and the formulation of destructive relationship;
(d) held that the respondent showered CF with money, bombarded her withcommunications and toyed and manipulated her in the internet exchanges;
(e) held that the transference of intimate person photographs was 'designed to break down conventional social barriers to an acceptance by her of his penis for her';
(f) held that the abuse of power in grooming CF must have had 'some corrosive impact on her, so that she forgoes the normal sexual mores accepted by our society and becomes compliant with unhealthy demands and an interest in prurient suggestion;
(g) held that CF was a victim in the sense that her 'psycho sexual development and emotions attached to them [were] traumatized".
It is clear from the Agreed Facts that the offending here was of a different quality. First, the offending occurred over a short period of time of just under three weeks. I accept the submission made on behalf of the offender that there was unsophisticated planning in that the offender utilised his own Facebook social media account. I also accept the submission made on behalf of the offender that whilst the communications included indecent material, the level of communication could not be said to be of a persistent character or remarkably high in number, and certainly did not amount to a "bombardment'. Further, the offender ceased the communication of his own accord, despite some additional urgings to continue by the AOI.
I do not accept the submission made on behalf of the offender that the fact that there was no actual victim affects the objective seriousness of the offending here. Having regard to the whole of the circumstances, the objective seriousness of the offending for an offence pursuant to s 474.27(1) was towards the lower range of an offence pursuant to that section. The section itself takes into account a wide range of abhorrent criminal conduct of which the index offence set out above clearly lies towards the lower end. It still constituted serious offending.
The transmitting of the indecent material does increase the objective seriousness of the offending and must amount to some accumulation in sentence. I have therefore taken that into account pursuant to s 16BA.
As set out in Rampling v R, supra, the fact that the offender was communicating with a fictitious person, who he believed to be a real person aged 14 years of age, makes the offence no less reprehensible. There is still harm to the community caused by this type of offence, and as set out in R v Gajjar, supra, the legislature clearly views conduct of this kind as deplorable.
In sentencing here, I have had regard to the following matters pursuant to s 16A of the Crimes Act 1900:
[8]
(i) Section 16A(2)(a) - the nature and circumstances of the offences.
The nature and circumstances of the offences have been set out above. Each was objectively highly serious offending as set out above.
[9]
(ii) Section 16A(2)(c) - if the offence forms part of the course of conduct consisting of a series of criminal acts of the same or similar character
There was some overlapping of the grooming offence and the transmitting offence as outlined above. Each of the criminal acts was of a similar character and it involved the offender pursuing a sexual interest in a 14 year old male and grooming that person for sexual purposes, including by sending him explicit photos and videos.
[10]
(iii) Section 16A(2)(f) - the degree to which a person has shown contrition for the offence.
The offender expressed remorse and some insight into his offending to the psychologist in Ex 1, however, such subjective matters must be viewed with some caution when they are not supported by sworn evidence. The offender's inability to provide an explanation for his criminal conduct must undermine such expressions of remorse and contrition.
[11]
(iv) Section 16A(2)(h) - the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence.
The offender ceased the offending conduct of his own accord and did not respond when urged to do so on a number of occasions when contacted by the AOI. Further, he made certain admissions in his Record of Interview following his arrest. I therefore find that he cooperated with Law Enforcement Agencies, however, such cooperation was in the face of an overwhelming case against him.
[12]
(v) Section 16A(2)(j) - the deterrent effect that any sentence may have on the person.
Notwithstanding that the offending took place over a short period of time, I accept the Crown's submission that there is a real need for the sentence to reflect an appropriate level of personal deterrence to reduce the risk of similar predatory offending in the future.
[13]
(vi) Section 16A(2)(ja) - the deterrent effect that any sentence may have on other persons.
I accept the Crown's submission that general deterrence is of fundamental importance here, given the public interest in protecting children from sexual exploitation and abuse. Grooming children for sexual activity and transmitting indecent material fuels the exploitation and abuse of the most vulnerable members of our society. It is also very difficult to detect such offences. A strong message therefore must be sent to the community that Parliament has proscribed heavy maximum penalties for such offences, and the court will in appropriate cases impose lengthy sentences of imprisonment to reflect the serious nature of the offending.
[14]
(vii) Section 16A(2)(k) - the need to ensure that the person is adequately punished.
The maximum penalty of 12 years imprisonment for the offence pursuant to s 474.27(1) of the Code is a guidepost in the sentencing process. Notwithstanding that the objective seriousness of the offending was towards the lower end of the range, given the high criminality involved in the offending, the only penalty, having regard to s 17A, is a period of full-time imprisonment.
[15]
(viii) Section 16A(2)(m) - the character, antecedents age means and physical and mental condition of the person.
The offender is now 51 years of age and has very few prior convictions, and no prior conviction of a sexual nature. However, good character has a limited role to play in sentencing for sexual offences involving children.
[16]
(ix) Section 16A(2)(n) - the prospects of rehabilitation.
The offender has been unable to articulate the true reason for his criminal offending and the court must therefore be guarded in assessing whether the offender has good prospects of rehabilitation. Whilst he has been assessed as a low-average risk of sexual recidivism, little reliance can be placed on that assessment in the absence of his acknowledgement of a sexual interest in children, which was clearly evident in the communications between him and the AOI. Any finding as to his prospects of rehabilitation would therefore have to be somewhat guarded, however, it would warrant him being given a substantial period of supervision in the community so that his rehabilitative needs may be addressed.
I am satisfied given the serious nature of the offending here, that no penalty other than imprisonment is appropriate in the circumstances of this case, pursuant to section 17A of the Crimes Act 1900.
Having regard to all of the factors outlined above, I intend to sentence the offender to a term of imprisonment of 2 years and 6 months. I intend to order a Recognisance Release Order for a period of 15 months, commencing on 21 June 2018.
[17]
Orders
I make the following orders:
1. You are convicted of the offence pursuant to s 474.27(1) of the Criminal Code Act 1995 (Cth) of using carriage service to groom a person under 16 years of age.
2. I have certified that I have taken into account the additional charge of use carriage service to send indecent material to a person under 16 years of age pursuant to s 474.27A, pursuant to s 16BA of the Crimes Act 1914 (Cth).
3. I impose a term of imprisonment of 15 months from 21 June 2018 to 20 September 2019.
4. Pursuant to s 19AC, I make a Recognisance Release Order for a period of 15 months from 21 September 2019 and terminating on 20 December 2020.
[18]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 27 February 2019