R v Smith [2024] NSWDC 242 | Case summary

R v Smith [2024] NSWDC 242 | Case summary | Zoe

[4]

Sentencing for Commonwealth Offences

The Court must sentence the offender in accordance with Part 1B of the Crimes Act (Cth) being one that is of 'a severity appropriate in all the circumstances of the offence. Section 16A(2) of the Crimes Act requires the Court to consider the matters listed in that section to the extent that they are relevant and known to the Court.
A new sentencing regime was introduced in June 2020 which applies to Commonwealth child sexual offences that applies to conduct occurring after 23 June 2020, except for changes pursuant to s 16A(2), the application of s 16A(2AAA) and the addition of residential treatment orders as an additional sentencing alternative under s 20AB which apply to sentences or orders made in respect of a person charged or convicted after 20 July 2020. The new sentencing regime applies to Count 2 and 3, but not to Count 1 (which occurred in 2016).
Count 1 and Count 3 are prescribed sexual offences for the purposes of s 67 of the Crimes (Sentencing Procedure) Act 1999. Consequently, an ICO is not available for these offences. The Crown accepts that s 474.27AA is not a prescribed sexual offence. Therefore, the Court is not statutorily precluded from imposing an ICO for Count 2. The Crown also accepts that the Court is not required to find 'exceptional circumstances' pursuant to s 20(1)(b) to impose an ICO. This is because the Court's power to impose an ICO is found under s 20AB which is not affected by the s 20(1)(b).
Both parties have addressed me in respect of the nature of the sentence to be imposed. Ms Pascoe, solicitor for the CDPP, submits only a custodial sentence should be imposed when applying the applicable principles and considerations in sentencing for online child exploitation offences that include an immediate term of imprisonment is ordinarily imposed for offending involving the online sexual exploitation of children and to ensure the objective of general deterrence, a primary sentencing consideration for offending involving the online sexual exploitation of children, is achieved.
Mr Funnell, counsel for the offender, submits count 1 can be appropriately accounted for without the imposition of imprisonment. He concedes terms of imprisonment are appropriate for Counts 2 and 3. However, his ultimate submission is that Count 2 can be served by way of an Intensive Correction Order, and that there are exceptional circumstances with respect to Count 3 such that the Court may direct Mr Smith's immediate release upon him entering a recognizance.
Ms Pascoe reminds me that in sentencing for offences of this kind general deterrence is a primary consideration and personal mitigatory factors such as prior good character, age and prospects of rehabilitation must therefore be given less weight than might otherwise be given.
The policy considerations that lay the foundation for this approach are well known to the courts and in applying them I accept specific deterrence, denunciation, punishment, and protection of the community are also very important sentencing considerations.
I accept all the factors identified by the parties need to be considered in a synthesized approach to sentencing the offender and each case turns on its own facts to be applied in an application of general sentencing principles identified from comparative cases.

[6]

Count 2 and Count 3

On 8 June 2021, police signed into an online chatroom on the website 'Chatiw' under the assumed online identity of CEIU16. CEIU16 and the offender, who was using the username 'Bobby', started a private conversation.
During the subsequent exchange, the offender asked CEIU16, 'how old is yours hun', to which CEIU16 replied, 'she's 9'. The offender stated, 'i bet she's cute lol' and enquired whether CEIU16 was by herself or if her child was also present with her. An extract from this conversation is contained in the Agreed Statement of Facts.
The extract records the offender enquiring if the child was present when CEIU16 flirted, whether the child had caught CEIU16 having "sex", and guardedly enquiring if CEIU16 is receptive to him "flirting" with CEIU16 with child present.
The offender suggested that CEIU16 download 'wickr' because it is 'easy safe and free'. The offender suggested the alternative of CEIU16 'txt me if you like and delete if you want'. The facts record extracts that can be summarized as enquiring of CEIU16 if the child could "join in".
The offender provided CEIU16 with his gmail email address and asked that CEIU16 add him on Google Hangouts.
The same day, CEIU16 sent an invitation for the offender to join, which he accepted. The offender and CEIU16 continued to exchange messages on the Google Hangouts platform. The offender stated that he needed 10 minutes before he could '…chat with your dau with you…'. The extract can be summarized as enquiring of CEIU16 if the child was present, enquiring what CEIU16 was wearing, confirming he wanted the child to be included in their sexual acts but with a reassurance he was not a "pedo".
CEIU16 advised the offender that the child was with her and asked whether he wanted to 'chat with her'. The offender commenced a conversation with the AOI purporting to be the 9 year old child of CEIU16 (Count 3). The extract of the conversation records the offender requesting the child to give CEIU16 a "hot kiss" on the "lips and tongue"; cuddle CEIU16 "like a girlfriend", to tell CEIU16 to take her top off, to rub CEIU16's "boobies". Thereafter, he advised he had a "bulge", "an erection".
CEIU16 and the offender resumed speaking between themselves. The offender enquired, 'were you girls both comfortable did i do it ok? i was hard as a rock tbh [CEIU's name]'. This conversation ended with him writing "take your top off for her first and have s kiss and cuddle with her hun xx".
The offender further encouraged CEIU16 to take her top off whilst she bathed her daughter, CEIU16 expressed concern about progressing matters too quickly. The offender stated that he agreed, 'let's take it slowly xxx'.
CEIU16 noted that she hoped the offender was not just fantasying, to which the offender replied, 'oh no honestly [CEIU16's name] im feel the same i didn't expect this but i love it'. CEIU16 asked whether the offender had 'done stuff like this' with his children. The offender replied, 'no i havnt as i said earlier darl its my first time too'.

[10]

Count 2

On 5 July 2022, the offender initiated a conversation on Chatiw with CEIU16. The offender was still utilising the username 'Bobby', and his profile information indicated that he was 43 years old from Australia. It can be inferred from messages as extracted that the offender was unaware that he was speaking with CEIU16 again. During the conversation CEIU16 revealed she had a 9 year old daughter. The offender stated he was thinking about he and CEIU16 having sexual intercourse in front of the child.
CEIU16 asked the offender whether he was talking about '…like that fake stuff or irl?', to which the offender replied '…im into the real stuff'. The offender stated that he would like to have sex with CEIU16 in front of her daughter. The offender stated that he would '…love to see you girls in bed together'. The offender stated, 'ive never done it but would love to explore it with you xxx i think your great' and asked whether CEIU16 was interested in 'exploring'.
CEIU16 provided her email address to the offender at which point he recognised the email address of CEIU16 from their earlier conversations and said, 'say hi to [child's name] babe'.
Later, the same day, the offender messaged CEIU16 on Telegram. The offender and CEIU16 commenced exchanging messages during which it was confirmed the child was 9 and loved the idea of her being that age, that he wanted to have 'sex' with the two of them, that he and CEIU16 should have sex in front of the child. CEIU16 explained to the offender that she was uninterested in a relationship. The offender in reply stated, 'i thought you liked me' and 'i mean i think you only wany me for the taboo rather than liking me but let me reset my goals with you now hun'. The offender asked CEIU16 what her daughter was doing and whether she was with CEIU16. The offender stated, 'i like the idea of the 3 of us being together', asked if the child liked kissing and instructed CEIU16 to tell the child, 'ask her would she like me to kiss her'.
The offender stated it would be nice for the three of them to be in bed kissing and for him to perform cunnilingual acts on both CEIU16 and the child.
In explicit terms the offender encouraged and directed CEIU16 to get her child to perform oral sex on her. The offender stated that he was 'turned on', had an erection and was masturbating.

[13]

Scheduled Offence

On 9 June 2021, the offender initiated a conversation with CEIU16 on Google Hangouts. The offender and CEIU16 discussed engaging in sexual activity with the child, with the offender stating 'mmm nice do you have a toy there im going to talk about the three of us babe'. The offender then described a sexual encounter with him, CEIU16 and her child. He described to CEIU16 the three on a lounge where CEIU16 was kissing and cuddling him and the child, the child and CEIU16 kissing each other in front of him, CEIU16 taking her top off, the child as a result of their training, kissing the nipples of CEIU16, digital intercourse being performed by the child on CEIU16, he having penile/vaginal intercourse with CEIU16 whilst the child sucked on CEIU16's "tits", showing the child how to perform fellatio, and him performing digital intercourse on the child.
On 7 July 2022, CEIU16 initiated a conversation with the offender via Telegram. The offender asked how the child is. CEIU16 advised the offender that the child was going to stay at her 'Nans tonight for the next few days while im on shift'. The offender stated, 'hope she doesn't say anything'. Extracts from this conversation include the offender imagining him having sexual intercourse with the child whilst CEIU16 watches and him having sexual intercourse with CEIU16 whilst she performed a cunnilingual act on the child.
The offender informed CEIU16 'its not a fantasy but remember i said if any of us decide to opt out we can im great with it so far'.
On 12 July 2021, CEIU16 and the offender exchanged messages on Telegram. They discussed the Covid-19 lockdowns. The offender stated that he thinks about CEIU16 and the child a lot.
On 13 July 2021, CEIU16 messaged the offender on Telegram. The offender stated that he was too busy to talk at that time.
On 29 July 2021, CEIU16 emailed the offender, 'Hey hun, i hope i didn't say something wrong? i was glad that i found someone like you - hope we can talk soon J xx'. The offender did not respond.
There were on further communications initiated by the offender with CEIU16.

[18]

Count 1

The offence occurred in a single SMS exchange between Mr Smith and another person on the 4 August 2016. The identity of the person with whom the offender was communicating is unknown. Although the "child" in the description could be of a young age their age at the time of the exchange is unknown.
The child pornography transmitted was graphic, including the description of an 11 year old child being raped by his father.
No material depicting persons under the age of 18 years was exchanged or requested. There is no evidence that the material was for the purpose of sale or further distribution, or that the offender would profit from the offence.
Mr Funnel submits there is an element of the absurd to the conversation. Prior to Mr Smith asking the other person how old they were when they first had sex ("Byes tell me about the first one how old were you"), it was unclear whether the other person was referring to sexual activity which occurred before they turned 18 years of age.
Up until the next question posed by Mr Smith, no offence contrary to s 474.19 had been committed. By asking the other person, "Nice hot babe did you love it", after he had been informed that the other person was referring to sexual activity when they were "11", Mr Smith took the unjustifiable risk (see "recklessness" as defined by s 5.4) that the other person may respond in terms that described their sexual activity as a child in an offensive manner. His liability is confined to one question in the context of a sexually graphic, albeit otherwise lawful, conversation.
Mr Funnell further submits the distinction between depiction and description is significant in this offence because no child was used in the making of the child pornography material that Mr Smith is liable for, being the description of the act. In the circumstances of this matter, description is less serious than depiction, and he submits, considerably so.
For all of those reasons, I am satisfied this offence is towards the lowest end of objective seriousness for comparative offenses of this kind.

[19]

Counts 2 and 3

The following are relevant features of the offender's conduct the subject of Counts 2 and 3: 1. The offending occurred over approximately one month. 2. There was no identifiable victim. However, the absence of a real child victim does not mitigate the offending. 3. The offending was targeted towards multiple prepubescent children who were only 9 years old. The defence concede despite his claim he believed the conversations were "a total fantasy", he is liable on the basis he was aware there was a substantial risk that the "putative" child may have been real, and knowing of that possibility, he was unjustifiable to communicate with the undercover operative in the manner he did. I accept there is an air of unreality in the conversations that lend some support to the offender's belief as to the lack of reality. 4. The offender was 77 years old at the time of the offending. There was a significant age difference of 68 years between the offender and the children. 5. The communications were explicit and suggested incestual acts between mother and child as well as the offender participating in sexual acts with the child. The most serious aspect of the offending was its capacity to harm the putative child and damage the relationship between the putative mother and daughter. The offender's conduct leveraged the trust expected to exist within such a relationship to permit the offender to use that trust as a pathway for intended sexual acts with the child. 6. The nature of the activities being procured included both digital penetration of the mother's genitals and sexual touching. In respect of count 3, the sexual activity sought to be procured was confined to sexual touching. 7. Ms Pascoe submits the offender took some steps to conceal his identity, providing a false age and telling the child to 'keep it our secret what we do'. Mr Funnell argues these offences are marked by an absence of sophistication. The strength of the Crown case, as noted by the Crown at [26] of their written submissions, is largely reflective of the way these offences were committed. At all relevant times, the offender was communicating using an account linked to an email address in his own name. On 8 June 2021, the first day of contact, Mr Smith provided this email address to the undercover operative. He also offered to provide her with his phone number. 8. The fact he informed the putative mother of the child he was aged 43 years indicates he had no intention of meeting with the putative mother or child or performing any of the sexual acts he claimed they would participate. I am satisfied he misrepresented his age to facilitate online communications, as opposed to efforts to conceal his identity and this adds weight to the offender's assertion, he was fulfilling a particular fantasy by transmitting material of this kind cannot be excluded. Implicit in these findings is my acceptance on the balance of probabilities that the offender believed that he was engaging in fantasy discussion and that he had no intention of arranging a meeting with the person he was talking to or meeting any child or engaging them in sexual conduct. Confirmation of his intention is confirmed by his discontinuing communication with the undercover operative. I am cognisant of the approach of the Court in R v Jarrold [2010] NSWCCA 69, where the transmission offences involved internet conversations with others concerning sexual activity between the respondent and children. An argument that the offences should be treated as less serious because they were a result of fantasy was strongly rejected: at [53], however the court found in the circumstances of that case they otherwise fell towards the bottom of the range: at [55]. 9. The offender was motivated by sexual gratification, and this was apparent from the recorded communications. And 10. The offender did not offer any inducements.
Mr Funnell has submitted I would take into account the opening exchange between the undercover operative and the offender is not in evidence and it is unclear who first initiated contact. For those reasons he claims it is unknown whether Mr Smith was specifically seeking out children on 8 June 2021, or alternatively following the undercover operatives' lead.
He also submits that I would take into account between 8 June 2021 and 7 July 2021, the offender and the undercover operative communicated on eight separate days. On 9 June 2021 Mr Smith contacted the undercover operative. Thereafter there was no further communication until 15 June 2021 when the undercover operative initiated contact.
He refers me to the history of communications between the undercover operative and the offender that identifies it was the undercover operative who next initiated contact on 20 June 2021 and again on 30 June 2021. On 5 July 2021, after an apparent mix up, Mr Smith contacted the operative. Thereafter it was the undercover operative who initiated contact on 6 July 2021, 7 July 2021, 12 July 2021, 13 July 2021, and 29 July 2021.
He does not suggest the offending is attributable to the undercover operative, however the fact that it was the undercover operative who continued to initiate contact with the offender is relevant to the duration of counts 2 and 3.
In light of the offender's admission that his internet communications for the preceding 5 years were of a sexual nature and the fact that on an occasion he erroneously believed he was communicating with a person other than the undercover officer, indicates to me that he was surfing the internet to engage in this type of offending, whether it be fantasy or otherwise, to satisfy his sexual gratification that was based in his attraction to young female children.
The Police in identifying offenders of this nature in my assessment are entitled to continue to engage with then after an initial offending communication to establish the extent of the offender's involvement and potential danger to the community. On each occasion the undercover operative found a willing participant in the offender to commit further offences and take up the three invitations to speak to the putative child.
I take into account the sexual activity the offender sought to procure relevant to count 3 was confined to sexual touching. Mr Funnel submits although the procurement of any form of sexual activity carried the potential risk of seriously damaging the relationship between mother and daughter, the fact that the activity was confined to sexual touching reduces the objective seriousness of count 3. I give that submission little weight in this assessment.
A significant factor in sentencing the offender and assessing the objective seriousness of these two offences is that from at least 12 July 2021 he voluntarily withdrew from the conduct giving rise to counts 2 and 3. On 13 July 2021 he told the operative that he was too busy to talk, and on 29 July 2021 he didn't reply to the operative's email. There was no further contact after this between Mr Smith and the undercover operative. This cessation of contact occurred 8 months prior to his arrest.
I accept Mr Funnel's submission that after taking all of these matters into account, count 2 is located below the mid-range of objective seriousness, with count 3 less serious because of the nature of the sexual activity being procured.

[23]

Remorse

I am satisfied on the balance of probabilities that his guilty pleas (and any associated evidence) demonstrate the subjective mitigation of genuine remorse, acceptance of responsibility.
His pleas are also relevant on a subjective basis in demonstrating remorse and contrition. The Crown submits this is limited despite the offender communicating to the Sentencing Assessment Report ("SAR" at pages 2 and 3 under headings of "Attitudes" and "Insight") author that he feels 'regret and remorse for the hurt his offending has caused his wife and children' it shows a concern for the consequences only insofar as they relate to him. Ms Pascoe submits he does not indicate a broader understanding of the impact of child sexual abuse and the effect his offending may have had on a real child.
In considering that submission I take into account the observations of Dr Katie Seidler, in her report [63] where she noted: "Mr. Smith expressed being ashamed and embarrassed as a result of his offending and he impressed as genuine in this. He demonstrated some insight into the reasons why such conduct is both immoral and illegal, including recognising the potential impact on children of such communication and behaviour."
I also note that Dr Seidler expressed a view that the offender had "sanitised" his behaviour in that "He denied any paedophilic or hebephilic interests in female children.' [55]. His response would have impacted upon his remorse and understanding of his behaviour but for his acknowledgement in his letter (page 35 Defence Bundle Exhibit 1) that after reading Dr Seidler's report containing challenging comments by her to some of his reporting wherein he stated: "It was very confronting reading Dr Seidler's report. I have reflected a lot and I accept her analysis and recommendations and am committed to doing whatever it takes to ensure that nothing like this ever happens again."
I accept he has experienced significant personal consequences to his relationship with family members and his community that will unlikely abate and impact upon the rest of his life. They are understandable regrets he has. However, Dr Seidler, in her usual professional and objectively refreshing opinions, has provided a report that has challenged the offender's attempt to explain his behaviour to others and himself.
I accept he has reviewed his response and he is genuinely remorseful and has empathy for children subjected to this type of offending. I will take this into account as a mitigating factor.

[25]

Antecedents

This is set out in detail in Dr Seidler's Report. He was born in Australia, the younger of two sons to the union of his natural parents. His brother was ten years his senior but has died about ten years ago. The relationship between his parents broke down when he was only about two years of age. He did not have contact with his father again after the family breakdown. His mother raised her two sons as a single parent, and he reflected that this 'wasn't easy' for her. He did spend some time with the paternal family apparently and is aware that he and his father were similar in some ways. The offender added that he felt different to other children growing up because his father was not involved in his life, and this was distressing for him. He understands his father has died but he does not know how or when this occurred.
His mother never remarried but she did re-partner when he was in his mid-adolescence. This man was not a significant figure in his life and although he treated the offender kindly, this man was also apparently a heavy drinker of alcohol.
He described the financial situation for the family as having been 'challenging' but noted his basic care needs were reliably catered for. However, he remembers going without relative to other children, which upset him.
During his childhood he lived with his maternal grandparents on a rural property, whilst his mother worked in town to support the children, only able to come home on weekends. He described his mother as 'fantastic', claiming that she was dedicated to her children and did her best to provide for their needs. He reported that he was close to his mother and to his grandparents and he reflected on the significant loss of his grandmother during childhood.
He was a well-behaved child, who needed little in the way of discipline. His mother died in or around 1994. The offender denied being a victim of abuse or neglect at any time. He also denied a familial history of vulnerability, including that pertaining to antisociality, mental illness or significant substance abuse.
He moved out of the family home at about the age of 18 to follow a job opportunity and has been independent since and resides with his wife in a property they own.
He was educated within the public school system attending two primary schools, and one secondary school. Overall, he recalled his school experience in positive terms. He claimed to have enjoyed learning and was active in a range of sporting pursuits during these years. He achieved well academically. He denied any concerns in relation to his school attendance or behaviour, and he was apparently never in receipt of any serious school discipline, including that for sexual misconduct.
After leaving school, the offender completed his three years training to become a Registered Nurse, completed onsite through the hospital. He has not engaged in any other formal educational programming.
He was first employed at ten years at the local corner shop. He worked with his brother for a time and in customer service at a local theatre. His first professional role was as a teller in a bank, and he did this for about two years, before going on to an office administration role for the Prime Minister's Department, which he did for a similar time. He reported he then took up a clerical role at Kenmore Hospital and it was at this hospital that Mr. Smith trained in nursing.
He commenced employment as a mental health nurse in or around 1967 and then in 1983, he moved into nursing for people with disabilities in residential care. In total, the offender worked at the hospital in nursing for almost 50 years before retiring. He is now supported by the aged pension.
He has never been terminated from employment, nor has he been the subject of any workplace complaints or grievance procedures.

[26]

Physical and Mental Health

The offender's past medical history is rather unremarkable, but it is evident that his current physical health is complicated.
He currently suffers the following medical issues he reported to Dr Seidler and as are confirmed by his treating doctors (see Exhibit 1) .

Achilles Tendonitis in both heels.
A knee replacement about nine years ago, which he has recovered from reasonably well.
He is currently on a waiting list for a left hip replacement.
Suffers with Dupuytren's Contracture in both hands that requires surgical intervention. He is on the waitlist for this operation. He suffers with pain and limitations in movement because of this condition.
Suffers with Gastric Reflux.
Has been diagnosed with Gout.
His prostate is enlarged.
He has macular degeneration and cataracts.

Consequently, he is treated with several medications at present. These are set out in detail in Dr Seidler's report [30] and confirmed in the reports from his treating doctors.
He is taking psychotropic medications prescribed by his General Practitioner. He consulted with a psychiatrist in 2022 and was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depression.
He is presently closely monitored and managed by several medical professionals.
He has no reported history of neurological insult or minor head trauma, such as seizures or losses of consciousness.
He has no history of drug, alcohol, or gambling addictions.
He denied ever being an active participant within an antisocial subculture and therefore, the people he considers as friends are those that are prosocial in both their orientation and activities. He also denied ever being involved with sex offender networks, either online or in the offline world. However, he acknowledged having used the Internet to engage with others sexually in the period leading up to his offending.
He has been involved in two serious intimate relationships in his life and both have involved marriage. The first relationship began in about 1973 with the couple marrying two years later and remaining together for a further five years. He denied any violence or infidelity in his first marriage.
He has one daughter from his first marriage, and three grandchildren from his daughter. He has two granddaughters and a grandson, who now range in age from 21 to 25 years. He shares a 'great' relationship with his daughter, but he does not see her often as she resides in Queanbeyan although they are in regular contact.
He met his current wife when she, too, worked in nursing at the same hospital he did. The pair began a relationship in 1983 and were married in 1985. He described the relationship with his wife as 'fantastic' until being arrested for the present offences. His wife needed some 'time away' from him to consider how she was feeling but has returned and remains supportive and committed to the marriage. I note she has been in court for the sentencing hearing.
They have a son with whom he remains very close. His wife has two daughters from a previous relationship, who were ostensibly raised with him from the ages of five and eight years. They have severed contact with him since the offences came to light which is a source of disappointment for him.
He described his sexual interests, to Dr Seidler, as mainstream and outside of his offending, he denied any interest or engagement in deviant or otherwise non-mainstream sexual practices, including transvestism, exhibitionism, sadomasochism, voyeurism, or bestiality. Further to this, the offender denied the presence of any sexual fetishes.
Dr Seidler questioned his claim that his sexual fantasy was age and theme appropriate, and he denied any sexual fantasies involving sexual thoughts of children, even during the period of his offending. She noted [54] that she found "this unlikely based on the examples of the chat he engaged in, as outlined in the Facts of this matter".
She also questioned his denial of any paedophilic or hebephiliac interests in female children and commented, "Again, I find this unlikely on the basis of his offending behaviour and suggest that Mr. Smith's account to me was sanitised in this regard." [55]
Dr Seidler reports the offender described: "a significant loss of coping and a decline in his mental health and functioning post-retirement. Mr. Smith described how he felt as if retirement marked the end of a stage in his life and that he was 'getting close to the end' and would ostensibly die soon. Mr. Smith reported that he descended into depressed associated with ruminating about death and dying and this was associated with hopelessness, despondency, impaired concentration, as well as a reduced sense of pleasure. Mr. Smith also reported that was lethargic and struggling with amotivation and increased food intake." [66]
The offender claimed this depression persisted from 2016 until he engaged in psychological treatment in 2022 in the aftermath of his arrest, with a psychologist in the Goulburn area, Mr. David Gorovic, and with whom he has consulted since and whom he says has 'changed (his) life' and encouraged him to 'live in the here and now'. He began consulting with Mr. Gorovic in about April 2022 having sessions monthly until February 2023, but sine has not had a need for psychological treatment.
Dr Seidler opines [107 dot point 4]: "It is my assessment that at present, Mr. Smith would not meet criteria for any diagnosable psychological condition and there was no evidence on assessment of neurocognitive issues, other than those associated with the normal aging process. However, it is suggested that in the period leading up and during Mr. Smith's offending period, in addition to that in the aftermath of his arrest, he would have met criteria for an Adjustment Disorder with Mixed Anxiety and Depression."

[27]

Age

The offender was aged 72 years at the time of count 1, and 77 years at the time of counts 2 and 3. He will turn 80 this year on 7 April. He has no relevant criminal antecedents.
Both parties have referred me to the principles to be applied when assessing the impact of age in the sentencing process in Liu v R [2023] NSWCCA, Campbell J at [39] (Adamson JA and McNaughton J agreeing) affirmed the principles applicable to the significance of advanced age in sentencing as stated by Steytler P in Gulyas v Western Australia [2007] WASCA 263 at [54].
They include any reduction in moral culpability by reason of advanced age coupled with a factor such as an age-related mental impairment. According to Dr Seidler at [89]: "It seems that he experienced a catastrophic loss of coping after that time, such that he descended in to depressed mood, he became preoccupied with death and dying and experienced ongoing anxiety in relation to his future. This, in addition to the changes in his life and identity that went along with retirement, were very challenging for Mr. Smith and he found his internal experiences (thoughts and feelings) in this context intolerable. To this end, Mr. Smith reported turning to online chat rooms in order to distract from his thought processes and seek some 'release' both cognitively and emotionally. It was within this context that Mr. Smith offended. Mr. Smith reportedly found the focus on sexual thoughts, feelings, and behaviour, through his online activity, soothing and distracting and this motivated him to engage online with others for sexual chat. Through this process, he became variously interested in and aroused by various sexual themes and topics, including for a time, the sexual abuse of children in the context of mother-child incest [emphasis]"
Where there is evidence sufficient to justify a conclusion that the circumstances associated with advanced age such as ill health and general age reflated frailty to make a custodial sentence more onerous than normal. In this respect I have the evidence of the offender in his letter to the court and the medical reports from his treating doctors. He suffers from a multitude of physical ailments some of which he is awaiting operations.
The Crown has tendered in evidence a publication entitled 'Overview of Services' issued by Justice Health and Forensic Mental Health Network as of 7 September 2022 that outlines the overall medical services that organisation provides prisoners in custody. I accept it is a comprehensive program that can generally and adequately deal with prisoners' medical needs. I have no specific evidence how the offender's prospective and pending surgeries could be accommodated. I am aware that the objectives as set out in the document are generally met but experience has demonstrated at times can be more aspirational than realistic in its application.
Dr Seidler opined (109): "….he will need ongoing close medical management. It is respectfully noted that Mr. Smith will be unlikely to be prioritised for any form of treatment in prison, nor is it likely that he will receive the level of medical management that he requires in gaol. As such, it is suggested that incarceration can offer Mr. Smith little in terms of rehabilitation, although I acknowledge the need for deterrence and punishment. I am also aware that there are restrictions upon the medications allowed to be provided to prisoners because of the fear they will be stood over, stolen from, and used as currency within the gaol institutions. I have no evidence before me as to whether any restrictions will be imposed on providing the offender with his required medications. Without a positive assurance from Justice Health there will be no restrictions I must proceed on the basis or probabilities there is a real possibility this may occur."
I accept irrespective of any capacity to appropriately manage the offender's illnesses, disabilities (mental and physical) and medical treatment in the context of his age that the nature of his custody will be far more onerous than that of a "normal" person in the general mix of the prison population. I accept this is a factor that should be taken into account as a mitigating factor.
In taking into account his age and ill health I accept the sentence must also address the seriousness of the offences measured by my assessment of their objective seriousness, but acknowledging the need for denunciation and general deterrence and any sentence imposed should not give an expectation that an older person can offend with relative impunity.
I also take into account, in view of his age, that the length of any custodial sentence imposed upon the offender will have a greater impact upon his life expectancy than would for a younger offender/prisoner.

[31]

Prospects of rehabilitation and risk of re-offending: ss 16A(2)(n) and 16A(2AAA) Crimes Act

Pursuant to s 16A(2AAA) of the Crimes Act, a Court sentencing an offender for a Commonwealth child sex offence must take into account, in addition to any other matters, the objective of rehabilitating the person. This includes whether it is appropriate when making an order to impose any conditions about rehabilitation or treatment options and, in determining the length of any sentence or non-parole.
It has been recognised by the courts that a voluntary cessation of offending, as was the case here, is a recognition by the offender of the illegality of the previous offending and indicating a desire to rehabilitate.
In considering his prospects of not reoffending I take into account that Dr Seidler conducted several tests that provide guidance in predicting future offending of this kind. She subjected him to the Static 99R actuarial test; the RSVP test and the SAPROF-SO a structured professional judgement tool. She identified several protective factors and opined in respect to the Case Note Psychologist assessments the following [106]: "Taking into account the aforementioned risk and protective factors, it is my assessment that Mr. Smith poses an overall low risk of sexual recidivism. I note that he presents with a number of salient protective factors, with less risk factors. The most protective factors in this case are Mr. Smith's advanced age, his pro-sociality and his lack of sexual offending history and his stable network of prosocial peers and a committed, long term intimate partnership."
And, "Taken together, there is limited evidence for the ongoing expression of risk in this case, in relation to which there is little evidence for risk associated with contact offending for Mr. Smith. As such, if his risk were to manifest in the future, it seems most likely that this would be in relation to a similar technology-based offence."
Dr Seidler further opined [108] "Mr. Smith is an elderly gentleman, whose lifestyle has been one of general stability and pro-sociality. He has come to sexual offending later in life and his assessed level of risk suggests that he poses a low risk of recidivism. Taken together, it is suggested that Mr. Smith does not need to be prioritised for intervention in order to manage his risk. However, he would benefit from psychological treatment designed to increase his insight into the antecedents to his offending behaviour, as well as improving his capacity for emotional intimacy and addressing any deviant sexual interests and avoidant coping skills. I do not believe that Mr. Smith requires a comprehensive sexual offence specific programme of intervention and rather, his needs will be best met within individual treatment specifically tailored to meet his needs. It is recommended that Mr. Smith's needs would be best addressed by a forensic clinician, who has experience working with sexual offenders. This treatment may also be able to assist Mr. Smith in further resolving issues associated with identity and the changes in his life since retirement, supporting the work he has already done in this regard with his previous treating psychologist."
And [109] "Mr. Smith does not require interventions in any other domain in order to address his criminogenic risks. However, it is recommended that Mr. Smith would gain from encouragement to establish a meaningful personal routine post-retirement."
I note the SAR has attached to it a Static 99R test result that is consistent with those obtained by Dr Seidler.
I am aware in my experience that because of his assessment of reoffending he will not be placed into sex-offence programs in the Corrective Services institutions. I am satisfied his successful rehabilitation is more likely to be achieved by his attending appropriate programs in the community.
He initiated seeing a psychologist whilst on remand. I take that into account as a positive indication of his desire to understand his offending and to rehabilitate.
I am satisfied on the above material and considerations that he will not reoffend and has excellent prospects for achieving a successful rehabilitation.

[35]

Presumption of Immediate Imprisonment: s 20(1)(b)(ii) Crimes Act

For child sex offences committed on or after 23 June 2020, s 20(1)(b) imposes a presumption in favour of an actual term of imprisonment unless there are exceptional circumstances that justify the offender being released immediately on a recognisance release order. This amendment is intended to ensure 'that child sex offenders receive sentences that reflect the exceptionally serious nature of their crimes'.
What constitutes exceptional circumstances is deliberately not defined. In R v Tootell ex parte AG [2012] QCA 273, when interpreting a similar provision to s 20(1)(b)(ii) in the Penalties and Sentences Act 1992 (QLD), the Court stated that to be exceptional, a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely or normally encountered. I accept the word "exceptional" is a stringent requirement.
The Crown submit the Court must undertake a reasoning process to determine whether circumstances are so exceptional as to warrant imposing a non-custodial sentence, in all the circumstances of an offence. This requires considering both the objective seriousness of the offending and the need for general deterrence.
The Crown submits that, given the seriousness of the offending, the offender's age does not constitute an exceptional circumstance. The Crown submits that the offender's age should be taken into account only in the mix of subjective factors, as the court did in sentencing a 68-year-old offender in Mertell v R [2022] ACTCA 69 and as set out above at [29] to [32].
Mr Funnel concedes the effect of s 20(1)(b)(iii) is that where a person is convicted of at least one Commonwealth child sex offence and the Court determines that imprisonment is appropriate, it must not direct the immediate release of the person unless satisfied that exceptional circumstances exist. He concedes on behalf of Mr Smith that imprisonment is the only appropriate penalty for counts 2 and 3.
Mr Funnell submits an ICO is available for count 2 as it is not a prescribed sexual offence. The Crown agree it is available but not appropriate for an offence of this seriousness and custodial sentence is the appropriate disposition for that offence. However, he concedes count 3 is a prescribed sexual offence pursuant to s 67 of the Crimes (Sentencing Procedure) Act 1999, and accordingly an ICO is not an available penalty. As imprisonment is conceded for count 3, the Court must impose an immediate sentence of imprisonment unless satisfied that exceptional circumstances exist.
Both parties have addressed me as to whether exceptional circumstances exist in respect of this offender. The Crown submits they do not. Mr Funnell submits, and I accept that special circumstances can arise out of the presence of a combination of factors that if considered separately would not in themselves be exceptional. He relies on the following combination of as constituting exceptional circumstances with respect to count 3: 1. The sexual activity sought to be procured was confined to sexual touching. 2. The unsophisticated manner of offending including that Mr Smith took no steps to conceal his identity. 3. The duration of the offending was largely attributable to the persistence of the undercover operative. 4. The limited number of communications - three - with the putative child. 5. Mr Smith voluntarily withdrew from the offending eight months prior to his arrest. 6. The advanced age and medical conditions of Mr Smith, making custody significantly more onerous for him. 7. The likelihood that custody may exacerbate his medical conditions, such that he would have no meaningful expectation of useful life after release. 8. This would be his first time in custody. 9. The absence of any relevant criminal antecedents. 10. The candour Mr Smith ultimately demonstrated when being assessed by Dr Seidler, including an acknowledgement of some interest in deviant sexual themes; and 11. The low risk of re-offending as identified in both the Sentencing Assessment Report and by Dr Seidler.
I agree with Mr Funnel's submission. I am satisfied that "exceptional circumstances" are established by a combination of the identified factors.

R v Smith

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Judgment (40 paragraphs)

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