R v Suttle

R v Suttle - [2019] NSWDC 538 - NSWDC 2019 case summary — Zoe

Table of contents Introduction - paragraph 2 Snapchat - paragraph 8 Agreed facts - paragraph 9 Offences relating to Anna Offence 1: Attempt Procure child for unlawful sexual activity - seq 2 - paragraph 10 Offence 2: Use carriage service to send indecent material to person under 16 years - Cth seq 9 - paragraph 12 Stalk/Intimidate with intent to cause fear of physical/mental harm (seq 4 - on Form 1 for offence 1) - paragraph 13 Offences relating to Rachel - paragraph 17 Stalk/Intimidate with intent to cause fear of physical/mental harm (seq 3 - on Form 1 for offence 4) - paragraph 18 Offence 3: Use carriage service to send indecent material to person under 16 years - Cth seq 8 - paragraph 19 Offence 4: Attempt Procure child for unlawful sexual activity - seq 1 - paragraph 20 Arrest and charge - 18 February 2018 - paragraph 25 Additional offences disclosed following police investigation and analysis of the offender's mobile phone - paragraph 26 Offences relating to Cara - paragraph 27 1st incident Cara - paragraph 28 Sexual intercourse with person 14-16 years: Oral sex (seq 12 - on Form 1 for offence 5) - paragraph 29 Offence 5: Sexual intercourse with person 14-16 years: Oral sex - seq 11 - paragraph 30 Offence 6: Use child over 14 years to make child abuse material - seq 1 - paragraph 31 2nd incident Cara - paragraph 32 Act of indecency (ex officio indictment - on Form 1 for offence 7) - paragraph 33 Sexual intercourse with person 14-16 years - Penile/vaginal intercourse - (seq 13 - on Form 1 for offence 7) - paragraph 34 3rd incident Cara - paragraph 35 Offence 7: Sexual intercourse with person 14-16 years - Penile/vaginal intercourse - seq 14 - paragraph 36 Use child over 14 years to make child abuse material (seq 2 - on Form 1 for offence 7) - paragraph 37 4th incident Cara Offence 8: Sexual intercourse with person 14-16 years - Anal sex - seq 15 - paragraph 38 Offences relating to Pam - paragraph 39 1st incident Pam Offence 9: Use carriage service to send indecent material to person under 16 years - Cth seq 22 - paragraph 40 2nd incident Pam - paragraph 44 Aggravated Indecent Assault (seq 3 and ex officio indictment - on Form 1 for offence 10) - paragraph 45 Sexual intercourse with person 14-16 years - Digital penetration (seq 17 - on Form 1 for offence 10) - paragraph 46 Offence 10: Sexual intercourse with person 14-16 years: Oral sex - seq 18 - paragraph 47 3rd incident Pam - paragraph 49 Sexual intercourse with person 14-16 years: Digital penetration (seq 19 - on Form 1 for offence 11) - paragraph 50 Offence 11: Sexual intercourse with person 14-16 years: Oral sex - seq 23 - paragraph 52 Aggravated indecent assault (child under 16 yrs.) (seq 10 - on Form 1 for offence 11) - paragraph 53 Offence 12: Use child over 14 years to make child abuse material - seq 15 - paragraph 54 3rd incident Pam - paragraph 55 Sexual intercourse with person 14-16 years; digital penetration (seq 20 - on Form 1 for offence 13) - paragraph 56 Offence 13: Sexual intercourse with person 14-16 years; Oral sex - seq 21 - paragraph 57 Use child over 14 years to make child abuse material (seq 16 - on Form 1 for offence 13) - paragraph 58 Further contact via Snapchat in March and April 2018 - paragraph 59 Offences relating to Robin - paragraph 63 Offence 14: Use carriage service to send indecent material to person under 16 years - Cth seq 19 - paragraph 66 Telecommunication evidence relating to contact by the offender to Robin's mobile phone in October 2015 - paragraph 68 1st incident Robin - paragraph 69 Act as a client with a child aged 14-18 years in an act of prostitution (seq 5 - on Form 1 for offence 15) - paragraph 70 Sexual intercourse with person 14-16 years; oral sex (seq 18 - on Form 1 for offence 15) - paragraph 71 Offence 15: Sexual intercourse with person 14-16 years; penile/vaginal intercourse - seq 17 - paragraph 72 Further telecommunication evidence relating to contact between the offender and Robin in July 2017 - paragraph 73 2nd incident Robin Offence 16: Act as a client with a child aged 14-18 years in an act of prostitution - seq 13 - paragraph 74 Offences relating to Joan - paragraph 77 Offence 17: Use carriage service to send indecent material to person under 16 years - Cth seq 14 - paragraph 78 1st incident Joan Offence 18: Act as a client with a child aged 14-18 years in an act of prostitution - seq 2 - paragraph 80 Sexual intercourse with person 14-16 years; Oral sex (seq 10 - on Form 1 for offence 18) - paragraph 82 Offence 19: Use child over 14 years to make child abuse material - seq 3 - paragraph 83 Sexual intercourse with person 14-16 years; Digital penetration (seq 11 - on Form 1 for offence 19) - paragraph 84 Offence 20: Sexual intercourse with person 14-16 years; Penile/vaginal intercourse -seq 12 - paragraph 85 2nd incident Joan Act as a client with a child aged 14-18 years in an act of prostitution (seq 7 - on Form 1 for offence 21) - paragraph 87 Offence 21: Sexual intercourse with person 14-16 years; penile/vaginal - seq 13 - paragraph 88 Use child over 14 years to make child abuse material (seq 8 - on Form 1 for offence 21) - paragraph 90 Offences relating to Rhonda - paragraph 91 1st incident Rhonda - paragraph 92 Offence 22: Use carriage service to send indecent material to person under 16 years - Cth seq 4 - paragraph 93 Use carriage service to menace/harass/offend- (Cth seq 1 - on Form 1 for offence 22) - paragraph 94 Further telecommunication evidence relating to contact between the offender and Rhonda in March 2018 - paragraph 96 Child Abuse Material on the Offender's mobile phone - paragraph 97 Offence 23: Produce Child Abuse Material - seq 1 (H1029935790) - paragraph 98 Possess child abuse material (Seq 2 - on Form 1 for offence 23); (10.2.17) - paragraph 100 Table of Offending Maximum penalties - paragraph 102 Form 1 matters - paragraph 105 Objective seriousness of offences - paragraph 106 Sexual Intercourse - child 14- 16: - paragraph 107 Procuring - paragraph 110 Child prostitution - child under 16: - paragraph 112 Child prostitution - child aged 16 - 18 - paragraph 116 Commonwealth offences Transmitting indecent material - paragraph 121 Assessment of Objective Seriousness - paragraph 122 Victim Impact Statements - paragraph 140 Offender's Subjective case - paragraph 145 An immature young man - paragraph 161 Submissions - paragraph 163 Other cases - paragraph 166 Totality - multiple offences - multiple complainants - paragraph 167 Structure of sentence - paragraph 170 Synthesis - paragraph 174 Orders Commonwealth offences: - paragraph 182 State Offences: - paragraph 183

[4]

Introduction

Ryan Suttle, now 25 years old, is to be sentenced today for a number of offences involving teenage girls. He admitted his guilt while in the Local Court. He will get the full benefit generally allowed for that early plea, facilitation of the course of justice and acceptance of responsibility. It is important to recognise that none of the young women had to give evidence in court.
There are seven (7) complainants: "Anna", "Rachel", "Cara", "Pam", "Robin", "Joan", "Rhonda". There are a large number of charges; some for sentence and some to be taken into account on Form 1's or a schedule. Suttle's offending breached both Commonwealth and State laws. Suttle contacted most of the young women using social media. He propositioned all but one of them by communications via social media. He preyed on the young womens' naivety, apparent immaturity and desire to please. He video recorded some of their sexual acts on his mobile phone. Suttle was himself young and immature but he was at the relevant times in his mid-20s, his victims were generally 14 and 15 years old.
I must sentence him for, or take into account, a large number of distinct offences that are part of a course of criminal conduct over nearly 2 years. The various charges seek to encompass the whole of the Suttle's criminal conduct toward the young women concerned. I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of his offending behaviour: Mill v The Queen (1988) 166 CLR 59, at 62-63.
When I do so I am guided by some simple and straightforward principles: young women under the age of 16 are still children and every act that involves the sexual exploitation of a child is serious. There is an absolute prohibition on sexual activity with children. That prohibition is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: R v Gavel [2014] NSWCCA 56.
As the Court of Criminal Appeal said in R v Lee [2010] NSWCCA 88, at [31]: ". …Offences involving sexual activities with young people under the age of sixteen are regarded as serious because the law presumes that such people do not have the emotional maturity to be able to make informed judgments about activities which may have very serious consequences for them:"
Significant sentences are required for offences involving sexually predatory conduct towards children with general deterrence a primary sentencing consideration: R v De Leeuw [2015] NSWCCA 183, at [72].

[71]

Table of Offending R v Suttle - Schedule of Charges Act & Section Complainant 1 s.66EB(2) Crimes Act 1900 2 474.27A(1) Criminal Code 1914 (Cth) 3 474.27A(1) Criminal Code 1914 (Cth) 4 s.66EB(2) Crimes Act 1900 5 s.66C(3) Crimes Act 1900 6 s.91G(2)(a) Crimes Act 1900 7 s.66C(3) Crimes Act 1900 8 s.66C(3) Crimes Act 1900 9 474.27A(1) Criminal Code 1914 (Cth) 10 s.66C(3) Crimes Act 1900 11 s.66C(3) Crimes Act 1900 12 s.91G(2)(a) Crimes Act 1900 13 s.66C(3) Crimes Act 1900 14 474.27A(1) Criminal Code 1914 (Cth) 15 s.66C(3) Crimes Act 1900 16 s.91D(1)(b) Crimes Act 1900 17 474.27A(1) Criminal Code 1914 (Cth) 18 s.91D(1)(b) Crimes Act 1900 19 s.91G(2)(a) Crimes Act 1900 20 s.66C(3) Crimes Act 1900 21 s.66C(3) Crimes Act 1900 22 474.27A(1) Criminal Code 1914 (Cth) 23 s.91H(2) Crimes Act 1900 & date offences committed Committal for Sentence offence Date; Particulars of offence Form 1 & schedule offences attached to the committal charge Anna H67080648 Jan 2018 Attempt procure child for unlawful sexual activity (seq 2) Jan 2018; sending messages requesting they meet up to have sex Stalk/intimidate with intent to cause fear of physical/mental harm (seq 4) Anna Use carriage service to send indecent material to person under 16 yrs. (seq 9) Jan 2018; sending a message with his naked penis in it Rachel H67080648 Feb 2018 Use carriage service to send indecent material to person under 16 yrs. (seq 8) Feb 2018; sending a message with his naked penis in it Rachel Attempt procure child for unlawful sexual activity (seq 1) Feb 2018; sending messages requesting they meet up in Wollongong mall so he can masturbate over her in the toilets Stalk/intimidate with intent to cause fear of physical/mental harm (seq 3) Cara H67638072 March 2017 SI child under 16 yrs. (seq 11) 10.3.17; Complainant performed Oral sex on the offender; ejaculation into the complainant's mouth SI child under 16 yrs. (seq 12) Cara Use child over 14 yrs. to make child abuse material (seq 1) 10.3.17; Offender recorded both acts of oral sex on his mobile phone Cara May 2017 SI child under 16 yrs. (seq 14) 16.5.17; Penile/vaginal intercourse 1. Use child over 14 yrs. to make child abuse material (seq 2) 2. SI child under 16 yrs. (seq 13) 3. Aggravated indecent assault (child under 16 yrs.) (seq 0 - Count 1) Cara Late May-early June 2017 SI child under 16 yrs. (seq 15) Late May - early June 2017; anal sex Pam H67378350 Sept - Nov 2017 (contact again in Mar -Apr 2018) Use carriage service to send indecent material to person under 16 yrs. (seq 22) Sept 2017; Offender sent a message with a picture of his naked penis Pam October 2017 SI child under 16 yrs. (seq 18) 27.10.17; the complainant performed oral sex on the offender 1. SI child under 16 yrs. (seq 17) 2. Aggravated indecent assault (child under 16 yrs.) (seq 3) 3. Aggravated indecent assault (child under 16 yrs.) (Seq 0 - Count 2) Pam November 2017 SI child under 16 yrs. (seq 23) 6.11.17; oral sex 1. SI child under 16 yrs. (seq 19) 2. Aggravated indecent assault (child under 16 yrs.) (seq 10) Pam Use child over 14 yrs. to make child abuse material (seq 15) 6.11.17; Offender recorded both acts of oral sex, digital penetration and ejaculating on the complainant's face Pam SI child under 16 yrs. (seq 21) 13.11.17; complainant performed oral sex on offender 1. Use child over 14 yrs. to make child abuse material (seq 16) 2. SI child under 16 yrs. (seq 20) Robin H66810530 October 2014 - November 2017 Use carriage service to send indecent material to person under 16 yrs. (seq 19) 2014; Offender sent a message with a picture of his naked penis Robin Dec 2015- Jan 2016 SI child under 16 yrs. (seq 17) Dec 2015 - Jan 2016; penile/vaginal intercourse 1. SI child under 16 yrs. (seq 18) 2. Act as a client with a child aged 14-18 yrs. in an act of prostitution (seq 5) Robin Nov 2017 Act as a client with a child aged 14-18 yrs. in an act of prostitution (seq 13/ Count 2) 13.11.17; the offender gave the complainant $60 to have sex with him and allow him to video record it Joan H67475547 Mid 2016 - Nov 2017 Use carriage service to send indecent material to person under 16 yrs. (seq 14) Mid 2016 Offender sent a message with a picture of his naked penis Joan May 2017 Act as a client with a child aged 14-18 yrs. in an act of prostitution (seq 2) 12.5.17; the offender gave the complainant $40 to have sex with him and allow him to video record it SI child under 16 yrs. (seq 10) Joan Use child over 14 yrs. to make child abuse material (seq 3) 12.5.17; the offender recorded the act of oral sex, penile/vaginal intercourse and digital penetration SI child under 16 yrs. (seq 11) Joan SI child under 16 yrs. (seq 12) 12.5.17; penile/vaginal intercourse Joan November 2017 SI child under 16 yrs. (seq 13) 3.11.17; penile/vaginal intercourse 1. Act as a client with a child aged 14-18 yrs. in an act of prostitution (seq 7) 2. Use child over 14 yrs. to make child abuse material (seq 8) Rhonda H67769818 May -June 2016 (further contact in March 2018) Use carriage service to send indecent material to person under 16 yrs. (seq 04) May-June 2016; Offender sent a message with a picture of his naked penis Use carriage service to menace/harass/offend (seq 1) Child Abuse Material located on the offender's phone: H1029935790 Produce child abuse material (seq 1) 11.2.17; Video recording of an unidentified female under 16 yrs. masturbating the offender's penis Possess child abuse material (seq 2)

[72]

Maximum penalties

The following maximum penalties apply:

Indecent assault person under 16 - s 61M(2) Crimes Act 1900 - Maximum penalty 10 years - Standard Non Parole Period (SNPP) 7 years.
Sexual intercourse with child between 14 - 16 - s 66C(3) Crimes Act -Maximum penalty 10 years (No SNPP).
Procure child under 16 for sexual activity s 66EB(2) Crimes Act - Maximum penalty 12 years - SNPP 5 years.
Participate in child prostitution - s 91D(1)(b) Crimes Act - Maximum penalty 10 years (No SNPP).
Use child over 14 to make child abuse material - s 91G(2)(A) Crimes Act - Maximum Penalty 10 years (No SNPP).
Possess and produce child abuse material - s 91H(2) Crimes Act - Maximum Penalty 10 years (No SNPP).
Use carriage service to menace - s 472.17(1) Criminal Code Act 1995 (Cth) - Maximum Penalty 3 years.
Transmit indecent material - s 474.27A Criminal Code - Maximum Penalty 7 years.
Intimidate - s 13(1) Crimes (Domestic and Personal Violence) Act 2007 - Maximum Penalty 5 years (No SNPP).

Careful attention to the guidance offered by maximum penalties and, if applicable, standard non parole periods, is required. Here both provide sentencing measures to be balanced with all other relevant factors. They also invite a comparison between the instant case and other cases. That said, it is not appropriate here to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarian v The Queen (2005) 228 CLR 357, at [30] and [31].
The standard non-parole period represents the non-parole period for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. A process of comparing and contrasting the actual offence with an abstract one is not necessary nor is it necessary to identify features of the offence which were or were not taken into account when considering the role of the standard non-parole period; s.54B(6): Tepania v R [2018] NSWCCA 247 [103] to [120]. I am required to give content to the standard non-parole period. However, as the High Court in Muldrock v The Queen (2011) 244 CLR 120, at [28], made clear I cannot, while doing so, engage in a staged approach to sentencing.

[75]

Sexual Intercourse - child 14- 16:

The law has established an arbitrary age below which consensual sexual relations are impossible. A person under 16 is, by law, incapable of consenting to sexual contact. Where a person engages in sexual intercourse with a child a critical factor remains the nature of the relationship, if any, between perpetrator and child. As Basten JA and Rothman J note in R v Nelson v R [2016] NSWCA 130, a sentencing court should not pay any regard to a description of sexual activity between a 24 year old or 25 year old and a child of 15 as "consensual;' the activity is better described as "not being the subject of opposition." As Basten JA said, "To treat that as a mitigating factor is to misunderstand the nature of the offence. Lack of consent is not an element of the offence because persons of young age are deemed unable to give informed consent to sexual intercourse, no doubt because they do not appreciate the nature and consequences of the activity. The courts should accept that even when the activity is not opposed by the victim, it will be damaging. Early sexual relationships with adults will often exploit and exacerbate a precarious sense of self-worth and self-respect in the victim, which may have lifelong consequences, including an inability to form stable partnerships in adulthood and possible self-destructive behaviour."
Other relevant factors include: 1. The nature or form of the sexual activity. No one particular activity is necessarily better or worse than the other, each depends on what and how the act occurred. 2. The age difference between the offender and victim. There is a considerable range of activity of varying degrees of seriousness involved in offending against s 66C Crimes Act. 3. The age of the complainant relative to the ages set out in the offence. 4. The degree of exploitation, emotional pressure or importuning, if any. The absence of exploitation can be significant: R v Sea CCA NSW unreported 13 August 1990; R v Schwenke [2004] NSWCCA 289, at [15]. 5. Any lack of willingness expressed by the complainant.
Mr Johnson SC, for the offender, drew may attention to evidence that moderates the objective seriousness of some offences and to the absence of factors that would have made the offence more serious: 1. During penile/vaginal intercourse the offender used a condom (except once - where he withdrew before ejaculation). There was accordingly little risk of pregnancy. 2. There was neither lack of consent nor expression of unwillingness: R v Sea CCA NSW unreported 13 August 1990. 3. No evidence that the victims were visibly distressed at the time of the offence. 4. No evidence of threats or violence; at worst there was persistent importuning. 5. Where a complainant asked the offender to stop doing something he did.

[77]

Child prostitution - child under 16:

The phrase 'act of child prostitution' is defined by section 91C Crimes Act. A sentencing court must consider what was done to cause or induce a child to participate in an act of child prostitution, or what the offender did by participating in the act of child prostitution. In R v Darwich [2018] NSWCCA 46, Justice A Adams, noted, at [82], that this requires examination of: 1. the particular form of the sexual service; 2. the frequency of the offending; 3. the age of the child, and 4. the offender's state of knowledge. Other factors arising from a review of the authorities include; 1. Any planning. 2. The degree of exploitation of the child. 3. The nature of any inducement. 4. Any coercion of the child, whether the child was unwilling or not (although it must be clear consent is not as with all such age specific offence of relevance except that's it absence may aggravate and offence). 5. Whether the act was isolated or part of a course of conduct.
In Darwich, at [80], Justice Adams drew attention to the Attorney General's second reading speech about what is now s 91D. Mr Dowd AO QC noted the reforms, "… will assist authorities to take positive action to stamp out the exploitation of children for pornography and prostitution…to effectively combat the insidious industry of child pornography and child prostitution …" It is not suggested here that Suttle's crimes had anything to do with any such industry or could have been exploited by it.
Here two children were involved. Neither would fit within a definition of what most would regard as child prostitutes. To the contrary, both Robin and Joan were young girls who were offered small sums, or in one case cigarettes, as a form of inducement to do what was asked of them by Suttle.
Although I am bound by the term of the legislation to use the term prostitution and prostitute, I do so only in a dictionary or legal sense. It should not be considered as labelling or disparaging in any way the young women involved. The terms used in the Crimes Act 1900 are hangover from another era: see CTM v The Queen (2008) 226 CLR 440, at [162]. They seem unnecessary in this context as the legislation is directed primarily at sexual exploitation of children for financial gain. In a real sense both girls were stigmatised and victimised by the offending conduct.

[78]

Child prostitution - child aged 16 - 18

In the s91D (1)(b) Crimes Act 1900 count, Robin was capable of consenting to the sexual act as she was just over the age of 16 but s 91D has the effect of prohibiting payment in any form for sexual services from children aged up to 18. This offence has a protective function and operates to extend the definition of child used for sexual offences beyond the usual 16. However, as a child over 16 can consent to sexual intercourse focus must be on the facts that relate to, and the degree of exploitation, rather than the sexual act itself. Child abuse material
Matters relevant to a consideration of this offence were set out in Minehan v R [2010] NSWCCA 140, at [94]-[95] and R v Porte [2015] NSWCCA 174, at [59]. The age of the victims for this series of offences is relevant; all were over 15 ½ years.
Here I accept the defence submissions that: 1. The offender acted alone when he recorded the sexual acts involving only himself and the complainants. 2. The number of files is limited. 3. Each recording offence reflects a separate incident as opposed to multiple victims on multiple dates. 4. There is no evidence that the offender had any intention to disseminate the material or make it available to like-minded persons. It appears he wanted to keep the material for his own prurient interest. 5. There is no evidence that the video footage was distributed by the offender or that it was made for commercial gain. 6. The conduct significantly overlaps with the substantive offences under section 66C(3) and 61M(2), but the recording the sexual acts adds another component of criminality.
In relation to the other child abuse material found on the offender's phone, an unidentified child was involved. I accept this offending related to a very small number of video files that appear have been recorded by the offender and kept on his phone. The child appeared to be close to the 16 years. There is no evidence of any intention to disseminate the sensitive images. The other child appears much younger but I am not sentencing for this matter - it is on the Form 1.
It is accepted that this type of offence may be heard and determined in the Local Court and may have been had not there been other much more serious matters to be dealt with.

[80]

Assessment of Objective Seriousness

There is no requirement I rank the objective seriousness of each offence on some sort of scale but I am required to identify fully the facts, matters and circumstances that I conclude bear upon what in my judgement is the appropriate sentence for each offence and then consider questions of cummulation or concurrence and totality: Muldrock at [29]; Pearce v The Queen (1998) 194 CLR 610, at [45].
The offending occurred over a 2 year period. The offender used a similar approach to each complainant: most were young girls aged 15, but some were only just 14 when first contacted. Some children responded differently than the others. That some Snapchat approaches led to responses such as the child sending back naked photographs or meetings for sexual and contact between the offender and the child makes those offences more pernicious. Suttle kept videos and photographs of some of his victims on his phone. There is no evidence he shared that material but he viewed it and used it.
In one sense, the facts as tendered and summarised above, illustrate the objective seriousness of each offence relative to the other. However, a judge is obliged to, as succinctly as possible; assess the objective seriousness of each offence for sentence by identifying relevant factors, discussing their significance and then setting out the basis for any conclusion and value judgments made.
When I conclude this judgement I will indicate individual sentences that will take into account all relevant matters, including the Form 1 matters that apply. I note however that at this stage the matters on a Form 1 cannot be taken into account when I assess objective seriousness: RO v R [2019] NSWCCA 183.
Anna was targeted with a request for sexual activity, she was sensible enough to ignore. She had to endure receiving a photograph of the offender's penis. His harassment of her continued as did demands for sexual activity.
To send a picture of your penis to a child known to be 14 in these circumstances justifies a custodial sentence: s 17 Crime Act 1914 (Cth).
For an adult to first lie about their age then form an online/Snapchat friendship with the child with the intention of requesting sex from a child is a serious crime. Particularly so, as here, any positive response would have led to contact and possibly sexual activity. Anna's mature response of first blocking Suttle and then going to the police is to be commended. The s 66EB Crime Act 1900 (NSW) offence was crude and ultimately an unsuccessful approach, because of the response of Anna. When viewed against other more serious examples of its type, the standard non-parole period can be given little content except to indicate that a custodial sentence is required.
Rachel was similarly targeted and a similar finding to Anna can be made. Suttle attempted to pressure the child into doing what he desired of her. His pressure had the reverse effect. That pressure, while it frightened Rachel, ultimately led to the police being contacted. Like her friend Anna, Rachel responded to the offender's contact sensibly and maturely.
Cara was 15 years old. She knew Suttle through his family. She had known Suttle since she was 14. He offended against her when she was a visitor to his house and then under pretence visited her at her home. He took advantage of her youth and naivety to not just engage in various forms of sexual intercourse but he then filmed that activity; a further violation.
Although he did not share the video, each time he viewed or used it with prurient intent was a further violation of the child. Suttle used Cara for his own pleasure, he thought only of himself. Each act of intercourse was equally and seriously criminal even though it appears Cara was not unwillingly she was still a child who should not have been put in such situations.
Pam started communications with Suttle when she was 15 years old. She would not send him photos of her breasts but he sent a photo of his erect penis to her. Again, for an adult of 24 to send a picture of his penis to a child known to be 15 in these circumstances justifies a custodial sentence.
Again, as with his other victims Suttle took advantage of Pam's youth and naivety to not just engage in various forms of sexual intercourse but he also videoed some of that activity; a further violation. Suttle used Pam for his own pleasure, he thought only of himself. Each act of intercourse was equally seriously criminal. Even though it appears Pam was not unwillingly she was still a child who should not have been put in such situations. All that can be said in Suttle's favour is that when Pam said 'that's enough," he stopped what he was doing.
Robin was more vulnerable that the other girls in that her drug problem made her desperate for funds. She was also initially the youngest of Suttle's victims. He sent her a number of images of his penis, including videos of him masturbating. To introduce such a young child to such activity is particularly serious. That multiple communications were sent, Robin's age and her response by agreeing to meet him illustrate why this offence calls for a custodial sentence.
Again, Suttle took advantage of the child's youth and naivety to not just engage in various forms of sexual intercourse but to video that activity; a further violation. Suttle used Robin for his own pleasure, he thought only of himself. Each act of intercourse was equally seriously criminal. Again, Even though it appears Robin was not unwillingly she was still a child who should not have been put in such situations.
Suttle compounded Robin's indignity by negotiating her sexual services for a price and then coming to her house for sexual intercourse, which he again videoed. Despite her youth Robin was sensible enough to block further communications with Suttle and have nothing further to do with him. In her Victim Impact Statement Robin says she still remembers the way her body hurt after their encounters.
Joan was another young girl who was used and demeaned by her negotiations and sexual contact with Suttle. She was 15 years old. The law labels her but in reality her immaturity and naivety were exploited by a serial predator. He gave her the impression she could trust him. As with other victims Suttle relied on his victim to be too embarrassed to reveal what had occurred. The first acts of intercourse stopped when she said she didn't want to do it anymore. The second act was brief but each was videoed. She too was smart enough to block further communications with the offender.
Rhonda was another 15 year old girl the recipient of a photograph of Suttle's erect penis. He targeted her after she put her profile out on social media. She sensibly told him "don't do that" and later blocked him. She has never met Suttle but he used his own name as a user name.
One video recording found on his phone has an unidentified young girl masturbating him. He produced this recording. Production of such child abuse material is a callous and predatory crime. One reason a custodial penalty is required is because each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of his exploitation and abuse of his victim, and the degradation it causes: R v Booth [2009] NSWCCA 89.

[81]

Victim Impact Statements

I have received and considered Victim Impact Statements from Robin, Cara and Joan. The absence of Victim Impact Statements from other complainants does not mitigate nor does it not permit a conclusion that they were not harmed by these offences: s 29(3) Crimes (Sentencing Procedure) Act 1999. "It should not be assumed, without evidence to the contrary, that there was no significant damage by way of long-term psychological and emotional injury any child sexual assault offence. It is an inherent part of what makes the offence so serious. It was the appreciation of the likelihood of harm resulting that Mason P saw as changing the community attitude to sexual assaults against young children:" R v King [2009] NSWCCA 117 at [41]; R v MJR.(2002) 54 NSWLR 368 at [57].
What was said by each complainant in their Victim Impact Statements must be given due weight. It should not be assumed, without evidence to the contrary, that there was no significant damage by way of long-term psychological and emotional injury from any child sexual assault offence. While, as Basten JA noted in R v Nelson, there may be a risk in overstating that principle, as not every abused child will be profoundly harmed, it remains an inherent part of what makes sexual offences against children so serious. It was an appreciation of the likelihood of harm resulting that Mason P saw as changing the community attitude to sexual assaults against young children: R v King [2009] NSWCCA 117, at [41]; R v MJR (2002) 54 NSWLR 368, at [57].
In her Victim Impact Statement Robin told me that while she still blames herself she is looking forward to a new beginning. She is ready to move on after Suttle receives retributive justice. She has tried to forget what occurred, without success. She now realises she was too young and naïve to understand she was being taken advantage of. At the time she thought she was an adult but she was still a child who wanted attention and love, not abuse.
Cara still feels she has let herself and her parents down. She too is now aware of how her vulnerabilities were taken advantage of. She wants to move forward and won't let these events stop her doing so.
Joan spoke of her trust in the offender and how he breached that trust and scared her; how he made her feel "like nothing." She told me of the shame and embarrassment she felt when the videos from the phone came to light via the police and having her mother find out. She still has mental scars but she too, with support, is moving on.

[82]

Offender's Subjective case

Although he did not himself give evidence details about the offender's background was put before the court in references and reports and other exhibits. They were not contested and are uncontroversial.
Suttle provided a letter to the court: exhibit 2. In it he does not attempt to make excuses. His letter appears genuine. While he says he made 'poor choices' he accepts responsibility for his serious crimes. I am prepared to accept that he has had many days in his cell to reflect on what he says was his "disgusting behaviour." He says his time in gaol has given him a new perspective and he has learned lessons he deserved to learn. He offers his apology; to the young women concerned, to the court and to his family.
Suttle is now 26 years old. He was born in November 1992. He has no prior criminal history and was before committing these offences a person of good character. It is not suggested he used his prior good character to assist him commit these offences.
Suttle was born in Wollongong and grew up in the local area. His family operate businesses in the area. He went to school locally until year 10 when he left to join the family businesses. He, until his arrest, worked in those businesses.
He has worked at least part-time in the family business since he was 12. It was, and remains, the family plan that he will take over the business at some stage. He was a keen soccer player from the age of 6 and played in a semi-professional capacity until 2016.
In 2015 he sustained a back injury and had an operation because a disc was pressing on a nerve. He was unable to work or play soccer for a period. His back recovered sufficiently for him to return to work and resume soccer in 2016. However, his back injury returned in late 2016 and 2017.
Following his back operation in 2015 the offender significantly increased his level of gambling. He sold his car and borrowed money to cover his loses.
Immediately after his arrest in February 2018 the offender consulted a psychologist, Mr. Ward, for counselling under a Mental Health Care Plan. Mr. Ward diagnosed him then as exhibiting symptoms of depression in the severe to extremely severe range. Mr West also concluded he was showing possible signs of an Adjustment Disorder as a result of his back injury and subsequent change of lifestyle and the fact that he no longer played sport. The offender had approximately three sessions with Mr. Ward prior to his second arrest in April 2018: exhibit 1 - 2.
A more recent report was prepared for court by Ms Duffy, a forensic psychologist: exhibit 1-1. She provides a comprehensive personality assessment of the offender. She says that his test results were valid and interpretable. In her opinion the offender was suffering depression over the period of his back injury, recuperation and subsequent relapse in early 2017. She concludes that at the time he committed the offences, he was depressed in mood, unable to share his fears and feelings with his family or girlfriend. She suggests that he developed online sexual contacts to divert himself from his problems. His sexual preoccupation, she said, was a means of coping with his emotional and physical pain: at page 9.5.
Ms Duffy noted "his avoidant personality where he used activities to escape or provide a distraction from his problems reinforced his addictions to both sex and gambling:" at 10.1. Ms Duffy did not make a diagnosis of a paedophilic disorder noting that most of his sexual experiences occurred with women over 16. She noted however that he had 'no filter' and was indiscriminate with sex partners:' at 10.4.
She concluded that while his actuarial risk of sexual reoffending is in the average range there are several dynamic risk factors that need to be addressed. They include; his propensity to avoid problem emotions, his difficulty with emotional and behavioural self-regulation and his use of sex as a coping mechanism for stress: at 10.7.
It appears the offender is willing to undertake custodial sex offender treatment and continue counselling on his return to the community. He will require ongoing treatment for depression and would benefit from individual counselling upon his release.
His family have been in regular contact with him during his 16 months in custody. Their support and that he has full-time employment to return to on his release, Ms Duffy says are protective factors.
The offender also expressed his remorse or regret for his offending to Ms Duffy, his family and referees consistent with the short letter tendered in court. It is hard to gauge how genuine his contrition is because at the time he displayed no concern whatsoever for the young women he exploited.
While I am prepared to accept that he had a number of psychological problems at the time of his offending and that they may help explain some of his behaviour, those conditions cannot, and do not excuse, what he did. They do allow for all appropriate start to future treatment and for some understanding of the man for sentence.
Although in his 20's he was able to present as a teenager to his young victims. He was and remains very immature.

[88]

Synthesis

Sentences must have regard to all the offences committed by the offender, the maximum penalties and standard non-parole periods, where applicable, and all objective and subjective factors which can be appropriately brought into account; together with principles concerning accumulation, concurrency and totality.
Suttle's crimes exploited young women. They showed a callous disregard for them. Many of the laws he broke exist for a very sound reason. In R v Lee [2010] NSWCCA 88, the Court quoted the late Judge Goldring: "Offences involving sexual activities with young people under the age of sixteen are regarded as serious because the law presumes that such people do not have the emotional maturity to be able to make informed judgments about activities which may have very serious consequences for them."
Sentences should however and as far as possible operate not just to punish offenders but also to protect the community from further offending by this offender and others. Removal of a person from the community by gaoling them can achieve only short term protection as they must be returned to the community. Protection of the community is helped by the successful rehabilitation of offenders: "This aspect of sentencing assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an order to avoid offending in future, the protection of the community is to that extent enhanced." Blackman & Walters [2001] NSW CCA 121; Yardley v Betts (1979) 22 SASR 108 at 112-113
A number of complainants in their Victim Impact Statements asked for retributive justice. Retribution is a notion that reflects the community's expectation that the offender will suffer punishment and that particular offences will merit severe punishment: Ryan v The Queen (2001) 206 CLR 267. No one should underestimate the lived experience of gaol. Gaols are harsh and brutal places where liberty and almost every freedom to act as an individual is taken away. Our gaols are real places of punishment.
Sentences must by their severity also seek to vindicate the dignity of each victim and to express the community's disapproval of the offending. However courts also recognize that long sentences and harsh prison conditions do not necessarily discourage future offending and that, paradoxically, the experience of imprisonment may exert a crime-producing effect - by providing a criminal learning environment, by labelling and stigmatising offenders as criminals or by simply constituting an ineffective way of addressing the underlying causes of crime. Those who have pro-social values at the time of incarceration may be placed with others who have anti-social attitudes undermining demonstrated progress to rehabilitation: Does Imprisonment Deter? A Review of the Evidence, Sentencing Advisory Council, Victoria, April 2011.
I am confident that Suttle can, with help, be restored to normal community life. He has strong pro-social supports in the community. He has the capacity to make a positive contrition after he has served the minimum period in gaol his crimes and all the purposes of sentencing demand. He will benefit from assistance while on parole. He has the capacity to use that period to his advantage and if he does, the community will benefit. It is well accepted that offenders who received parole supervision upon release are less likely to commit new indictable offences and commit fewer offences than offenders who are released unconditionally into the community.
Suttle has been forced, deservedly so, to learn hard lessons about the need to respect others; young women in particular. He and others must by the harshness of custodial punishment learn the consequences of sexual offending against children. Social media networks offer many advantages but they can be misused and innocence exploited. He was knowingly taking advantage of children. He lied to them about who he was and his motivation was purely selfish. He thought only of himself and his own sexual gratification.
Mitigating factors can go only so far. Courts must attempt, by their sentences, to prevent repetition of the offending, by first removing the offender from the community and then supporting their reintegration into it. Courts also have an obligation in sentencing for sexual offences involving children to attempt vindicate the dignity of each child survivor and to express the community's disapproval of that offending.

[90]

State Offences:

Allowing 25% for the utilitarian value of the early plea of guilty I indicate the following sentences:

Offence 1: s 66EB - Anna - Taking into account the Form 1, as it carries a standard non‑parole period I indicate a sentence of 1 year 1 month with a non‑parole period of 8 months.
Offence 4: s 66EB - Rachel - Taking into account the Form 1, as it carries a standard non‑parole period I indicate a sentence of 1 year 1 month with a non‑parole period of 8 months.
Offence 5: s 66C - Cara - Taking into account the Form 1, I indicate a sentence of 3 years 3 months
Offence 6: s 91G (2)(a) - Cara - I indicate a sentence of 1 year 6 months
Offence 7: s 66C(3) - Cara - Taking into account the Form 1, I indicate a sentence of 3 years 3 months
Offence 8: s 66C(3) - Cara - I indicate a sentence of 3 years
Offence 10: s 66C(3) - Pam - Taking into account the Form 1, I indicate a sentence of 3 years
Offence 11: s 66C(3) - Pam - Taking into account the Form 1, I indicate a sentence of 3 years
Offence 12: s 91G (2)(a) - Pam - I indicate a sentence of 1 year 6 months
Offence 13: s 66C(3) - Pam - Taking into account the Form 1, I indicate a sentence of 3 years
Offence 15: s 66C(3) - Robin - Taking into account the Form 1, I indicate a sentence of 3 years 9 months
16: s 91D (1)(b) - Robin - I indicate a sentence of 9 months
18: s 91D (1)(b) - Joan - Taking into account the Form 1, I indicate a sentence of 9 months
19: s 91G (2)(a) - Joan - Taking into account the Form 1, I indicate a sentence of 1 year 6 months
20: s 66C(3) - Joan - I indicate a sentence of 2 years 7months
21: s 66C(3) - Joan - Taking into account the Form 1, I indicate a sentence of 3 years
23: s 91H (2) I indicate a sentence of 1 year 10 months

State Sentence: There will be a total aggregate sentence of 7 years 6 months. There will be a non-parole period of 4 years 6 months commencing 4 September 2018 and expiring 3 March 2023. The balance of the sentence of 3 years is to commence upon the expiration of the non-parole period and expiring on 3 March 2026.
You will be eligible for consideration for release to parole at the expiration of the non-parole period on 3 March 2023.
The total effective sentence for all matters is 7 years 11 months. The minimum period Suttle must spend in custody is 4 years 11 months.

At a glance

Court

Decision date

Source

Judgment (91 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (43)