R v Suttle

Introduction

1. 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.
2. 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.
3. 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.
4. 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.
5. 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:"
6. 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].

Snapchat

1. Suttle communicated with the complainants using various social media applications. One was Snapchat: Snapchat is a form of social media communication whereby the sender can transmit pictures or texts. The message can be viewed once before being automatically deleted. A photo can be viewed once, unless replayed immediately. It is not stored on the phone. The only way to save a message or photo is to take a screenshot of it, and when this occurs the sender receives notification of it being saved.

Agreed facts

1. Detailed agreed facts were tendered. What follows is only a summary of what I have taken into account.

Offence 1: Attempt Procure child for unlawful sexual activity - seq 2

1. In January 2018, the offender messaged Anna on Instagram. He asked her to add him on her Snapchat. They then exchanged messages. Anna told Suttle that she was 14 years old. He told her he was 18. At first the Snapchat messages were general but then he began asking her sexual questions. She ignored them. The offender then asked the complainant to meet up with him so they could perform oral sex on each other.
2. The offender also asked Anna to send him some pictures of her naked. Anna only sent the offender photos of herself fully clothed.

Offence 2: Use carriage service to send indecent material to person under 16 years - Cth seq 9

1. One afternoon in early 2018 Suttle sent Anna message with a picture of his naked penis. The complainant didn't reply to that message. The offender later asked her "Didn't you like my pic." He continued to ask her personal questions relating to sex. The complainant didn't reply to those questions. After receiving this picture of his penis and those messages the complainant blocked the offender on Snapchat.

Stalk/Intimidate with intent to cause fear of physical/mental harm (seq 4 - on Form 1 for offence 1)

1. As he was blocked on Snapchat the offender messaged Anna on Instagram. He asked her why she had blocked him. Anna told him it was because he was harassing her and she didn't want to send any naked pictures to him. She took a screenshot of his response and put it on another one of her personal Snapchat pages captioned "From now on, I'm posting the usernames of guys that annoy me or continually harass me on this account and they're just gonna have to deal with it. I didn't realise that when a girl asks to be left alone it actually means to continuously message her until she blocks you…."
2. The offender was sent a copy of the complainants' post about him. He became angry. The offender messaged Anna and told her she had publicly humiliated him.
3. The agreed facts set out what Anna captured in screenshots of the conversation that followed. In summary, rather than accepting he had done wrong Suttle made demands that scared Anna. To get him off her back she apologised to him for her post. He refused the apology and he sent her a message with a list of 4 "options" involving suggested sexual activity.
4. The complainant told her parents. On 17 and 18 February 2018 she spoke to police and participated in an interview.

Offences relating to Rachel

1. Rachel first started communicating with the offender via Snapchat in mid-February 2018. The conversations were general to begin with. Rachel told Suttle that she and her friend Anna were 14 years old. He told her he was 19.

Stalk/Intimidate with intent to cause fear of physical/mental harm (seq 3 - on Form 1 for offence 4)

1. After a while the messages changed in tone and content. Suttle asked Rachel to send him photos of herself. She initially refused. She stopped communicating with him. Rachel told her about her communications with the offender. The complainant then asked him to leave her friend Anna alone and just keep talking to her instead. Suttle said he would leave Anna alone if Rachel sent him some pictures of herself instead. She agreed to this and sent the offender pictures of herself fully clothed.

Offence 3: Use carriage service to send indecent material to person under 16 years - Cth seq 8

1. The offender and Rachel exchanged messages and pictures back and forth. The offender then sent her a number of photos of himself, including of his face and his body from the waist down with penis exposed.

Offence 4: Attempt Procure child for unlawful sexual activity - seq 1

1. Suttle asked Rachel to send him naked pictures of herself and asked about meeting up.
2. On 17 February 2018, at around 11.30am, the complainant and Anna were in the Wollongong mall. Rachel was on Snapchat, messaging with the offender. A Snapchat application disclosed her location. The offender asked if she was in town - she turned off the location display.
3. The offender asked the complainant if they could meet up. The offender told the complainant he wanted to meet up so they could go into nearby toilets and he could wank over her. The offender gave her the toilet's location. The complainant didn't meet him or go to this location. She was frightened and became upset.
4. Anna phoned her mum who came and collected the girls. Both Anna and Rachel then disclosed to Anna's parents the communications they'd had with the offender. Rachel spoke to police on 18 February 2018.
5. The offender's phone records indicate he was in the Wollongong area at this time. When police viewed Rachel's Snapchat messages one showed Suttle holding his erect penis in the bathroom at his family home.

Arrest and charge - 18 February 2018

1. The offender was arrested by police on the evening of 18 February 2018 at his family home. A search warrant was executed. His mobile phone was seized. He was granted conditional bail.

Additional offences disclosed following police investigation and analysis of the offender's mobile phone

1. Following the arrest and charging for offences relating to Anna and Rachel the seized mobile phone had its contents downloaded and examined. Numerous video recordings and SMS messages of a sexual nature were found. Some videos showed females that were able to be identified by Police. Statements were taken from them. The offender was then charged in relation to offences committed against four further identified complainants, referred to as Cara, Pam, Robin and Joan. After a newspaper published details of his court appearance another complainant, Rhonda, came forward. Another girl, whose identity is unknown, was also the subject of charges.

Offences relating to Cara

1. Cara first met the offender in mid-2016. She was 14 years old. She was between 15 years 7 months and 15 years 10 months when in 2017 the four incidents, described below, took place.

1st incident Cara

1. Cara was visiting the offender's family home. She had been Snapchat messaging the offender and he had expressed an interest in her. They met up in a bedroom.

Sexual intercourse with person 14-16 years: Oral sex (seq 12 - on Form 1 for offence 5)

1. The offender took his pants off and then the complainant performed oral sex on him. They heard someone walking up the stairs, so stopped what they were doing. Cara then continued to perform oral sex on the offender. His phone began to ring from another room, so he left the complainant to take the call.

Offence 5: Sexual intercourse with person 14-16 years: Oral sex - seq 11

1. The offender returned to the room where Cara was. She removed some of her clothing and again performed oral sex on the offender until he ejaculated into her mouth.

Offence 6: Use child over 14 years to make child abuse material - seq 1

1. Some of the above incident is recorded as a video on the offender's iPhone. The duration of the segments of footage is 1 minute, 10 seconds.

2nd incident Cara

1. In April 2017 there was a second incident. The offender initiated Snapchat messages about wanting more sexual acts. When Cara was visiting the Suttle family home the two met in a bedroom and lay on the bed.

Act of indecency (ex officio indictment - on Form 1 for offence 7)

1. The offender took his erect penis out of his pants. The complainant gave him a "hand job."

Sexual intercourse with person 14-16 years - Penile/vaginal intercourse - (seq 13 - on Form 1 for offence 7)

1. Cara and the offender then had penile - vaginal intercourse. He removed his penis and ejaculated. The offender told her not to tell anyone what happened.

3rd incident Cara

1. Cara and offender exchanged messages about meeting up at her house. Cara told police she thought they came from another boy. The complainant didn't attend school, but stayed home and left the front door unlocked. She was in bed watching a movie when she saw the offender in her home.

Offence 7: Sexual intercourse with person 14-16 years - Penile/vaginal intercourse - seq 14

1. The offender put a condom on his penis and he and complainant had penile-vaginal intercourse. The offender ejaculated and then got dressed and left.

Use child over 14 years to make child abuse material (seq 2 - on Form 1 for offence 7)

1. Some of the above incident is recorded as a video on the offender's iPhone. The duration of the segments of footage is 1 min 50 seconds.

Offence 8: Sexual intercourse with person 14-16 years - Anal sex - seq 15

1. Cara was at home, suspended from school. She sent a Snapchat to her contacts saying, "someone chat" and the offender replied to her. The offender drove over to her house in his car and went up to her bedroom. He and complainant got undressed and the offender put his penis into Cara's anus. She said it felt painful with a burning feeling. He ejaculated into some tissues He asked"…Would you do it again?" and she replied "no." The offender then left.

Offences relating to Pam

1. Pam first starting communicating with the offender via Snapchat in September 2017. She was 15 years and 2 months. They exchanged messages and photos. She sent him a full length clothed body shot. The offender then messaged her "undo a button". She did not send any further photos that day.

Offence 9: Use carriage service to send indecent material to person under 16 years - Cth seq 22

1. A few days later the two resumed messaging on Snapchat. He asked her to send a photo of her breasts. Pam did not send a picture at that stage. The offender then sent the complainant a photo of his naked erect penis.
2. A short time later the complainant sent a photo via Snapchat of herself with no top on, showing her breasts. He replied, "Send more." She took another photo of her breast and sent it to him. The offender replied "Send a full body one" and she replied "No I don't really want to do that." He replied "Please, just do it." The complainant replied that she was going to bed and the offender did not message her further that night.
3. Over the next few weeks there were several conversations in Snapchat between the offender and the complainant. During the conversations with the offender Pam told him that she was 15 years old. He said that he was 17.
4. About a month after they first started communicating by mobile phone they arranged to meet up in the park near Pam's house around 11.30pm. The offender requested the complainant wear a skirt. She did. The complainant walked to the carpark; the offender drove his car. The offender then drove the complainant to a sport's field in Dapto.

2nd incident Pam

1. The offender and complainant got into the back seat of the car. He and Pam kissed.

Aggravated Indecent Assault (seq 3 and ex officio indictment - on Form 1 for offence 10)

1. The offender placed his hands inside her shirt and under her bra, touching her breasts. He then pulled his pants down and Pam touched his penis.

Sexual intercourse with person 14-16 years - Digital penetration (seq 17 - on Form 1 for offence 10)

1. The offender placed his hands under her skirt, inside her underpants and inserted his fingers into her vagina.

Offence 10: Sexual intercourse with person 14-16 years: Oral sex - seq 18

1. Pam rubbed the offender's penis. He asked for oral sex. She performed oral sex on the offender. After a short time she pulled her head away saying, "that's enough." The offender dropped the complainant off around the corner from her home.
2. The following day the offender messaged the complainant and asked if she enjoyed what they did the previous night. The complainant says she avoided answering and just made general conversation. The complainant didn't hear from the offender again until 10 days later - the day of the 3rd incident.

3rd incident Pam

1. Pam received a message from the offender via Snapchat. After general conversation he asked her to meet up. She agreed. He asked her if he could film them doing things. She initially said no, but then later agreed. The offender picked her up near her home. She was wearing her school uniform. The offender drove to a nearby oval and parked. They got into the back seat. The offender placed his mobile phone on the arm rest of the inside of the rear door.

Sexual intercourse with person 14-16 years: Digital penetration (seq 19 - on Form 1 for offence 11)

1. The offender pulled his pants down. His penis was erect. He asked the complainant to sit on his lap. She sat on his lap and he placed his fingers inside her vagina and rubbed for a short while before moving a hand to her back. At one point the complainant could feel his penis touching and rubbing against the outside of her vagina. There was no penetration.
2. Pam lay across the back seat. The offender held his mobile phone over her face, recording her. He placed his hand on her genitals and placed his fingers inside her vagina again.

Offence 11: Sexual intercourse with person 14-16 years: Oral sex - seq 23

1. The offender then moved and straddled her legs while she lay on the back seat. She rubbed his penis and then placed it inside her mouth for a short time.

Aggravated indecent assault (child under 16 yrs.) (seq 10 - on Form 1 for offence 11)

1. After she removed his penis from her mouth he rubbed his penis until he ejaculated onto her face. They stayed in the car for a short time and then the offender drove her home.

Offence 12: Use child over 14 years to make child abuse material - seq 15

1. Some of the above incident is recorded as a video on the offender's iPhone. The duration of the segments of footage is 3 mins and 54 seconds.

3rd incident Pam

1. On 13 November 2017, the offender again messaged Pam via Snapchat and asked to meet up. She agreed to allow him to come over to her home. They went up to her bedroom. He unzipped her school dress and she sat on her bed, naked. The offender placed his mobile phone on her dressing table so as to record the view of the bed.

Sexual intercourse with person 14-16 years; digital penetration (seq 20 - on Form 1 for offence 13)

1. The offender removed his pants, went over to Pam and rubbed her genital area before placing his fingers inside her vagina.

Offence 13: Sexual intercourse with person 14-16 years; Oral sex - seq 21

1. The offender placed his hand on the back of the complainant's head and moved her face towards his penis which Pam put in her mouth. He left the room to get some toilet paper and returned and masturbated himself. He ejaculated into the toilet paper. The offender got dressed, took his phone and left.

Use child over 14 years to make child abuse material (seq 16 - on Form 1 for offence 13)

1. Some of the above incident is recorded as a video on the offender's iPhone. The duration of the segments of footage is 5 mins and 6 seconds.

Further contact via Snapchat in March and April 2018

1. In March 2018 the offender added Pam on Snapchat using a different username and they messaged each other. He asked about meeting up again. The complainant did not make any arrangements to meet with the offender.
2. She asked him to delete the videos he had recorded of them. He said he wouldn't but promised the complainant he would never share them.
3. The last messages and Snapchat communication between the offender and Pam were in early April 2018. He asked her if she wanted to meet up - she replied "No". He messaged her saying "Send something." She did not send him any more pictures of herself.
4. The complainant made her statement to police on 4 April 2018.

Offences relating to Robin

1. Robin first met the offender in 2014. She later told police that at this time in her life she had started smoking cannabis and had been stealing money from her parents to purchase drugs.
2. Suttle initially messaged Robin on Instagram and asked if she had a Snapchat account. She said she did and gave him her username. Their conversations were initially very general in nature. She recalls he once asked her how old she was. She recalls saying that she was either 13 or 14 years old.
3. A short time after they began messaging each other the offender asked her to send him naked pictures of herself. They also discussed her sending photos of herself for money.

Offence 14: Use carriage service to send indecent material to person under 16 years - Cth seq 19

1. The offender sent Robin naked photos and videos of himself. He requested naked photos of her in return. Some of the videos he sent to her showed him masturbating.
2. There were gaps in communication between the offender and the complainant as the complainant would "block" and then "unblock" him from her Snapchat account. She would reply to some of his messages. He'd request they meet up. She said sometimes she did agree to meet up and sometimes she didn't.

Telecommunication evidence relating to contact by the offender to Robin's mobile phone in October 2015

1. Robin parents accessed her mobile phone in 2015. Her father took screenshots of some Snapchat messages of a sexual nature involving the offender. The messages are dated just after the complainant turned 14 years.

1st incident Robin

1. The offender and Robin, then aged 14 years, agreed to meet at a park.

Act as a client with a child aged 14-18 years in an act of prostitution (seq 5 - on Form 1 for offence 15)

1. They had agreed that the offender would give the complainant a packet of cigarettes to have sex with him. This was negotiated on Snapchat. When Robin arrived at the park after dark the offender was already there in his car. They then walked down to an area near a bike track.

Sexual intercourse with person 14-16 years; oral sex (seq 18 - on Form 1 for offence 15)

1. The offender took his penis out of his pants and Robin performed oral sex on him. The offender touched her breasts while she did so. She was wearing a singlet top at the time. She saw that the offender had his mobile phone in his other hand.

Offence 15: Sexual intercourse with person 14-16 years; penile/vaginal intercourse - seq 17

1. The offender then put a condom on his erect penis. He turned Robin away from him. He bent her over and placed his penis inside her vagina and had intercourse with her until she felt he ejaculated. He drove home. She walked home.

Further telecommunication evidence relating to contact between the offender and Robin in July 2017

1. The offender's has SMS communication with Robin between 25-29 July 2017.

Offence 16: Act as a client with a child aged 14-18 years in an act of prostitution - seq 13

1. The offender messaged Robin to meet up and she agreed. She had just turned 16. They negotiated a price for him to video record them having sex: $60 was agreed upon. She agreed for the offender to come to her home that night while her parents weren't home.
2. That night in the laundry area at her home Robin performed oral sex on the offender. They then had penile- vaginal intercourse. He wore a condom and ejaculated into it. He used his mobile phone to video both acts of intercourse. The segments of footage are 3 minutes in duration.
3. Robin said that after this incident she did not want any more involvement with the offender, so she blocked him on social media. The offender never contacted her again.

Offences relating to Joan

1. Joan first met the offender in mid-2016 when she was 14 years old. He sent her a friend request on Instagram. She accepted that request and also soon after a friend request on Snapchat. They started messaging each other every day on Snapchat on various topics. The offender told her he was 16 years old.

Offence 17: Use carriage service to send indecent material to person under 16 years - Cth seq 14

1. About 2 weeks after first messaging each other (mid 2016) Suttle sent Joan a picture of his erect penis and asked her to send him naked pictures of herself. She sent the offender pictures of herself, but at first she was dressed.
2. Joan and the offender messaged each other for about 6 months. At times he asked to meet her. He offered to give her money if she would send him naked pictures of herself, or he would offer to buy her alcohol in return for performing sexual acts with him.

Offence 18: Act as a client with a child aged 14-18 years in an act of prostitution - seq 2

1. The offender messaged Joan on 12 May 2017. In the exchange Joan agreed to be paid $40 for performing oral sex on the offender and allowing him to video the act: She messaged…"how much $$ will u give me if I do shit with u? …instead of buying me grog. He replied: $30 ? For a root They then discussed the transaction in some detail Joan said: ok Offender: Good girl
2. Joan met with the offender at Wollongong train station. He drove to behind the Bulli Showground.

Sexual intercourse with person 14-16 years; Oral sex (seq 10 - on Form 1 for offence 18)

1. Suttle and Joan then climbed into the car's back seat. The offender asked her to remove her clothing. She asked if she could leave her underwear on but he wanted to her be fully naked so she removed her clothes. He took his clothes off too. Joan said she now didn't want to be recorded. He said "you're getting more money." She asked what he would do with the video. He replied, "I will just watch it for a little bit". Joan then agreed. She performed oral sex on him and she saw him use the mobile phone to record this act.

Offence 19: Use child over 14 years to make child abuse material - seq 3

1. Some of the above incident is recorded as a video on the offender's iPhone. The duration of the segment of footage is 1 min 20 seconds.

Sexual intercourse with person 14-16 years; Digital penetration (seq 11 - on Form 1 for offence 19)

1. The offender lay on the back seat and put his hands on Joan's sides. He pulled her towards him. He then placed his fingers inside her vagina and rubbed her for less than a minute.

Offence 20: Sexual intercourse with person 14-16 years; Penile/vaginal intercourse -seq 12

1. The offender and Joan then had penile-vaginal intercourse. He moved his body up and down for a few minutes and she said, "I don't want to do this anymore" and got off him. They both got dressed. He gave her $40 and dropped her near her home.
2. Over the following months the offender continued to send Joan messages on Snapchat, asking to meet up again. He also asked her to send him photos of her naked. A lot of the time she didn't answer him but she did sometimes send photos of herself. The photos would normally be of her in a bra and underwear. Joan said the offender continued to offer her money if they would meet up again, but she refused. They stopped messaging for a while.

Act as a client with a child aged 14-18 years in an act of prostitution (seq 7 - on Form 1 for offence 21)

1. On 3 November 2017, the offender sent Joan a message "Reply on Snap" and he offered her money to meet up. Joan negotiated to be paid $20 for having sex with him. The offender said he wanted to film her and blind fold her. She said she initially said "no" but then agreed.

Offence 21: Sexual intercourse with person 14-16 years; penile/vaginal - seq 13

1. The offender met with Joan at her Nan's house. She took her clothes off and at his request took a black top from her cupboard and gave it to him. She lay on the bed. She saw the offender put a condom on his erect penis. He then placed the top over her face.
2. Suttle put his penis in Joan's vagina for about a minute and then changed position. He then ejaculated. He paid her the $20. He was at the house for no more than 5 minutes.

Use child over 14 years to make child abuse material (seq 8 - on Form 1 for offence 21)

1. Some of the above incident is recorded as a video on the offender's iPhone. The duration of the segments of footage is 2 mins and 10 seconds.

Offences relating to Rhonda

1. As a result of the media reporting of the offender's arrest by the Illawarra Mercury, another complainant, Rhonda contacted NSW Police. She provided a statement outlining her contact and involvement with the offender via mobile phone. She has never met the offender

1st incident Rhonda

1. Rhonda was aged 15 years in May/June 2016. She had both an Instagram and Snapchat profile on social media. She received a message from a person using Snapchat username ryan.suttle. The offender asked her "what are you doing?" and she replied "Just sick in bed, what about you?" He said "I don't think you want to know what I am doing". About twenty minutes later she received another message from the offender saying "Do you want to know what I'm doing?" Again the complainant did not to reply.

Offence 22: Use carriage service to send indecent material to person under 16 years - Cth seq 4

1. A short time later the offender sent the complainant a photo of himself from the waist down, naked, laying on a bed holding his erect penis in his hand. The complainant deleted the photo and sent a message saying "Don't do that."

Use carriage service to menace/harass/offend- (Cth seq 1 - on Form 1 for offence 22)

1. The offender replied, "You need to send back." She replied, "I'm fifteen. I don't do that. I have a boyfriend". He said "You need to send back" and then "If you don't, I am going to get naked photos of other girls and send them to your boyfriend and say that it is you." Rhonda replied "You need to leave me alone."
2. The offender sent Rhonda another 2 or 3 messages. The complainant blocked the offender on Snapchat and did not have any further contact with the offender until 27 March 2018, almost 2 years later.

Further telecommunication evidence relating to contact between the offender and Rhonda in March 2018

1. On 27 March 2018 the complainant added a new photo of herself to her Snapchat story; by doing so the photo became public. She received a message "you look pretty in your story." Rhonda recognised it as coming from the offender although he was using a different Snapchat username - rsut11. She sent the offender a screenshot showing his profile was in her blocked list and a message "Right, you were blocked for a reason. Please don't add me back and please leave me alone. You're a creep. Goodbye". The offender replied "Haha. Ok". She then blocked this second username profile and had no further contact with the offender.

Child Abuse Material on the Offender's mobile phone

1. Following Suttle's arrest his mobile phone and its contents were downloaded and examined. Video recordings relating to unidentified female children under 16 years were found. Some images have been categorised in accordance with the International Baseline Criteria relating to Child Abuse Material assessment and is categorised as Category Two: Other Child Abuse Material - for children aged fourteen years to under sixteen years.

Offence 23: Produce Child Abuse Material - seq 1 (H1029935790)

1. On the phone was found a Recording titled: IMG_1724.MOV. It was a video recording of an unidentified female, aged under sixteen years, masturbating the offender's penis with her hand. The duration of video is 45 seconds.
2. Five further files were found on the phone. They show slightly edited duplicates of the original recording, produced on various dates between 11 February 2017 to 6 April 2017.

Possess child abuse material (Seq 2 - on Form 1 for offence 23); (10.2.17)

1. Another file contains a video recorded on 10 February 2018, in which an unidentified female, fully clothed, aged not more than sixteen years, with olive skin and dark hair has a partly peeled banana inside her mouth and moves it into her mouth, performing what the agreed facts describe as a "deep throat" action. The video's duration is four seconds.
2. Another file contains a video recording made 3 minutes later, in which the same unidentified female places an ice-block in her mouth and performs a "deep throat" action.

Table of Offending R v Suttle - Schedule of Charges Act & Section Complainant & date offences committed Committal for Sentence offence Date; Particulars of offence Form 1 & schedule offences attached to the committal charge 1 s.66EB(2) Crimes Act 1900 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) 2 474.27A(1) Criminal Code 1914 (Cth) 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 3 474.27A(1) Criminal Code 1914 (Cth) 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 4 s.66EB(2) Crimes Act 1900 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) 5 s.66C(3) Crimes Act 1900 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) 6 s.91G(2)(a) Crimes Act 1900 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 7 s.66C(3) Crimes Act 1900 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) 8 s.66C(3) Crimes Act 1900 Cara Late May-early June 2017 SI child under 16 yrs. (seq 15) Late May - early June 2017; anal sex 9 474.27A(1) Criminal Code 1914 (Cth) 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 10 s.66C(3) Crimes Act 1900 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) 11 s.66C(3) Crimes Act 1900 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) 12 s.91G(2)(a) Crimes Act 1900 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 13 s.66C(3) Crimes Act 1900 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) 14 474.27A(1) Criminal Code 1914 (Cth) 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 15 s.66C(3) Crimes Act 1900 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) 16 s.91D(1)(b) Crimes Act 1900 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 17 474.27A(1) Criminal Code 1914 (Cth) 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 18 s.91D(1)(b) Crimes Act 1900 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) 19 s.91G(2)(a) Crimes Act 1900 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) 20 s.66C(3) Crimes Act 1900 Joan SI child under 16 yrs. (seq 12) 12.5.17; penile/vaginal intercourse 21 s.66C(3) Crimes Act 1900 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) 22 474.27A(1) Criminal Code 1914 (Cth) 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) 23 s.91H(2) Crimes Act 1900 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)

Maximum penalties

1. 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).

1. 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].
2. 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.

Form 1 matters

1. As the table of offending, set out above, makes clear many offences for sentence have attached to them other matters on a Form 1. I will take these matters into account when I determine the appropriate penalty for the offence to which they relate: Attorney General's Application No. 1: (2002) 56 NSWLR 146 and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. The court does not "in any sense" impose sentences for those matters: Attorney General's Application No. 1, at [68]. The matters on the Form 1 here do however operate to increase the sentence that would otherwise be appropriate. The court does so as part of the instinctive synthesis approach to sentencing explained by McHugh J Markarian, at [51]-[54]. Such an increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General's Application No. 1 at [39] - [42]. Sometimes, as in a number of instances here were the Form 1 matters are numerous and or relate to serious crimes, that increase can be substantial: Attorney General's Application No. 1 at [18]: also Grube v R [2005] NSWCCA 140.

Objective seriousness of offences

1. The actual character of the offence is of considerable significance in assessing the objective seriousness of any offence but particularly sexual offences involving children: R v Van Ryn [2016] NSWCCA 1. All relevant circumstances must be considered, including those that aggravate or moderate the objective gravity of what occurred. The presence or in some cases absence of factors can be important to that assessment. The assessment must be in relation to the matter for sentence not some other more serious crime: The Queen v De Simoni (1981) 147 CLR 383.

Sexual Intercourse - child 14- 16:

1. 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."
2. 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.
3. 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.

Procuring

1. The offence of procuring a child for sexual activity was recently considered in Milliner v R [2019] NSWCCA 127. There, Justice N Adams set out matters a sentencing court should consider: 1. The nature of the proposed sexual activity - noting that there are varying degrees of seriousness arising from the broad definition of 'unlawful sexual activity.' 2. The length of time of the offending conduct including the offender's level or persistence. 3. Whether there was an offer of money or other inducement or threat. 4. The age difference between the offender and victim. 5. Any steps taken by the offender to conceal his identity.
2. Here: 1. The complainants Anna and Rachel were 14 years 7 months and 14 years 9 months. 2. The nature of the suggested sexual activity for Anna was oral sex and indecent assault and Rachel was an indecent assault. The offending occurred during the period of January and February 2018 and involved a number of communications on Snapchat. 3. The offending involved an element of intimidation - however, this is reflected in a separate offence to be taken into account on a Form 1. 4. The age difference was approximately 9 years. 5. The offender made no serious attempt to conceal his identity sending photos of his face and using Snapchat in the name of "Ryaaan." 6. There was a level of persistence.

Child prostitution - child under 16:

1. 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.
2. 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.
3. 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.
4. 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.

Child prostitution - child aged 16 - 18

1. 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
2. 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.
3. 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.
4. 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.
5. 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.

Transmitting indecent material

1. The offences involved the offender sending photos of his penis to the victims. Relevant considerations here include: 1. The complainants were just under the age of 16. 2. The images were unsolicited.

Assessment of Objective Seriousness

1. 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].
2. 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.
3. 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.
4. 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.
5. 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.
6. 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).
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.

Victim Impact Statements

1. 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].
2. 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].
3. 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.
4. 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.
5. 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.

Offender's Subjective case

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. Although in his 20's he was able to present as a teenager to his young victims. He was and remains very immature.

An immature young man

1. When sentencing young or immature offenders, considerations of general deterrence and principles of retribution can be of less significance than they would be when sentencing a mature adult for the same offence. Allowance can be made for an offender's youth, and not just his or her biological age: KT v R [2008] NSWCCA 51.
2. The law recognises that younger people can reform and learn to conform to society's norms. It is also accepted that cognitive, emotional and/or psychological immaturity of a young person can contribute to their offending: "…the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20's:" Clarke-Jeffries v R [2019] NSWCCA 56; BP v R [2010] NSWCCA 159; Howard v R [2019] NSWCCA 109.

Submissions

1. Mr Johnson and Ms Olender, for the Director of Public Prosecutions, have made comprehensive submissions which, fairly and dispassionately, put the position of both parties before the court. I hope these remarks do justice to them.
2. For the Director, Ms Olender submits that individually and collectively each offence is serious enough to justify a custodial penalty. Given there are a series of sexual offences involving a number of different victims she submits the overall sentence must adequately reflect the totality of all the crimes committed and not undervalue the need for the individual vindication of each complainant.
3. Mr Johnson, on Suttle's behalf, acknowledged the seriousness of what was done to each young girl and the need for proper punishment. He asks that I consider; the offender's early guilty pleas, his immaturity, the impact of prison on him and his solid prospects for the future. Accordingly he submits it is in both the offender's and the community's interest that a sentence that does not crush those prosects be imposed. While recognising the need to accumulate to reflect the harm to each complainant he cautions that the ultimate aggregate sentence must not exceed what is called for in all the circumstances.

Other cases

1. I was referred to a number of other cases and sentencing statistics. Past sentences and statements of principle in them do help guide the exercise of my sentencing discretion, however each case and each offender is individual: Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen [ (2014) 253 CLR 58 at [74]. As Bell and Gaegler JJ said, in The Queen v Pham [2015] HCA 39 at [47], "…sentencing is a discretionary judgment and the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.''

Totality - multiple offences - multiple complainants

1. It is important that the court show in its judgement there was a punishment referable in a real sense to the serious and separate criminal conduct against each of the complainants. There is also a need here to accumulate some indicated sentences for offences referable to that single victim, at least partially, so as to acknowledge all the harm done. Such was the nature and extent of the offending against some victims that although there was a single episode of criminality one sentence could not reflect the criminality of them all: Cahyadi v R [2007] NSWCCA 1.
2. The indicated sentences must individually and as accumulated attempt to reflect the harm which the law understands is done to young children: R v Gavel, at [104]. That consideration needs to be balanced against the principle that it is necessary to arrive at an ultimate aggregate sentence that does not exceed what is called for in all the circumstances: R v PFC [2011] NSWCCA 117, at [62]; R v Gommeson [2014] NSWCCA 159: Johnson v The Queen (2004) 78 ALJR 616; Postiglione v The Queen (1997) 189 CLR 295, at 308. The overall sentence must be just and appropriate to the totality of Suttle's offending behaviour: Mill v The Queen (1988) 166 CLR 59, at 62-63.
3. The totality principle works also to recognise that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing. The severity of a sentence is not simply linear. The severity of a sentence may increase at a greater rate than an increase in the length of a sentence, for example; a sentence of two years has greater impact than one so far as the punitive aspects of a sentence is concerned: R v Clinch (1994) 72 A Crim R 301, at 306, approved in MAK v R [2006] NSWCCA 381.

Structure of sentence

1. Sentencing for Commonwealth and State offences requires considerations of the specific purposes of sentencing set out in both s16A Crimes Act 1914 (Cth) and s3A Crimes (Sentencing Procedure) Act 1999. Those considerations are different but complementary.
2. I will first impose fixed terms for each Commonwealth offence. I will then partially accumulate the aggregate sentence for the State offences and fix a non-parole period for the State offences that recognises the period in custody referable to both as one of the special circumstances that apply: s 44(2) Crimes (Sentencing Procedure) Act 1999.
3. While it is possible Suttle will get some psychological help in custody the sooner he is able to reengage with his treating psychologist the better. On release he will need help adjusting to normal community life. With help from Corrective Services, appropriate psychological treatment and the promised family support, his rehabilitation is likely to be successful: see R v Carter [2003] NSWCCA 243, at [20].
4. All of the material before me provides a strong basis for a finding of special circumstances requiring an increase in the period he may spend on parole. In so finding I am mindful of a requirement that the minimum period for which he should be imprisoned must also properly reflect the gravity of his offences and the other manifold purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704, at [59].

Synthesis

1. 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.
2. 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."
3. 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
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Commonwealth offences:

1. Commonwealth Sentences: Allowing 25% for the facilitation of the course of justice by early guilty pleas the following fixed terms are imposed:

• Offence 2: s474.27A - Anna - 3 months fixed term starting on 4 April 2018
• Offence 3: s474.27A - Rachel - 3 months fixed term starting 4 May 2018
• Offence 9: s474.27A - Pam - 3 months fixed term starting 4 June 2018
• Offence 14: s474.27A - Robin - 9 months fixed term starting 4 July 2018
• Offence 17: s474.27A - Joan - 5 months fixed term starting 4 August 2018
• Offence 22: s474.27A - Rhonda - taking into account the matter on the schedule, 4 months fixed term starting 4 October 2018

State Offences:

1. 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

1. 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.
2. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 3 March 2023.
3. 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.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 October 2019