The offender Mr Swinton stood trial during the week commencing 31 October 2022 before a jury on two charges under s 474.27A(1) at the Commonwealth Criminal Code. The jury subsequently found the offender guilty of both counts, on which he must now be sentenced. Each of the offences carries a maximum penalty of ten years imprisonment, which of course is an important guidepost in the sentencing exercise.
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FACTS
The facts upon which the offender is to be sentenced are derived from the evidence led at trial which are set out in a document provided by the Crown and about which there is essentially no dispute. Those facts in summary are as follows: At the relevant time, the offender was 30 years of age and lived in Katoomba. The facts in relation to the count 1 offence are as follows; on 10 April 2021, CEIU41 which was an identity used by an undercover police officer, to whom I will refer hereafter as an Assumed Online Identity or just by the letters AOI. That person and the offender communicated on an online chatroom website called Chatiw. To register on Chatiw, the user needed to put in an age that is 18 years or over. However, there is no documentation required in order to verify a person's age. The offender had the username "Anyone4K9KOK". The offender did not have a profile picture. The offender was a regular user of Chatiw at the time.
When the AOI registered its profile, an age of 18 years or over was used. However, police could not recall during the trial the precise age that was used, only that an age over 18 years must have been used. On 10 April 2021, during the first set of messages, the offender and the AOI transmitted the following messages between each other. In the course of setting out these communications I will firstly use the name of the person transmitting the information and then the information.
"Offender: Hey
AOI: Hey hru
Offender: Good and you? What you up ro"
Which presumably was intended to mean 'to'.
"AOI: Nm, jus chatting hbu
Offender: Same what part of Sydney
AOI: Like near Parra, you from Syd
Offender: I'm just outside of Sydney what you looking for? I'm about an hour from Parra
AOI: Cool. What you mean looking for?
Offender: Like on here
AOI: Idk what you mean
Offender: Are you looking to meetup
AOI: Like for reals?
Offender: Yeah I'm keen
AOI: What would we do
Offender: What do you feel like doing?
AOI: Idk"
Presumably meaning 'I don't know'.
"Offender: Having fun or just hanging out? What do you look like
AOI: Idk I never met anyone from chat b4 strawberry blonde, aussie, normal height, hbu"
Presumably meaning 'How about you'.
"Offender: You got a pic? Are you a virgin
AOI: Of course I'm only 14!
Offender: Oh have you done anything with a guy?
AOI: I kissed one once
Offender: Is that all
AOI: Yeah
Offender: You haven't tried anything else
AOI: Like what
Offender: Being fingered or sucking dick hahaha
AOI: Wow no
Offender: Lol do you finger yourself
AOI: No
Offender: Why not
AOI: Cause aren't I too young for that stuff
Offender: Lol no want me to show you how lol
AOI: How?
Offender: We could meetup? Do you have a pic of you?
AOI: Yeah but I can't send on chats mum flips out enough when I send friends pics on Skype, you got Skypes?
Offender: Won't she know if you go on Skype then
AOI: She just thinks it's friends from school rly
Offender: Oh true what about your dad
AOI: It's just me and mum
Offender: What's your Skype"
The AOI then provided an email address and then said, "What's urs". The offender put the word, "Added". Presumably meaning that he had joined with the Skype connection. Immediately after the last message on Chatiw to which I referred, the offender sent the AOI an invitation for them to communicate privately on Skype. His Skype profile was "Col Swinton".
The offender asked the AOI to send him pictures of "her". The AOI then sent a picture purporting to be her, which was a picture of a clothed girl. The offender sent the AOI pictures of himself and asked for more pictures of the AOI. He also asked the AOI if she talked to guys on Skype and asked if she had a boyfriend. The offender sent another picture of himself and asked for a second photo of the AOI and "she" sent one of herself clothed, lying in bed.
The offender asked about the AOI's pyjamas and whether he could get another photograph of her and then the AOI then sent a third photograph. During the chat, the offender asked if the AOI liked chatting or wanted to meet somewhere. The AOI said she wanted to meet and the two then messaged each other the suburbs where they lived. They did not however communicate again until about four months later on 25 August 2021, when the AOI sent a message to the offender on Skype and they sent some short messages to each other.
Similarly, the two communicated on Skype on 1 and 2 September, 25 October and 1 and 11 November 2021. However, there is no suggestion that in any of those other communications there was any indecent suggestion or material offered by the offender.
At about 7am on 25 November, police attended the offender's residence at Katoomba and executed a search warrant. The offender at that time was using the Chatiw application. When he was arrested, his iPhone was seized. He provided his pin code to the police and a manual review of the phone found images, which included images sent by the AOI to the offender in the Skype communications on 14 April 2021.
Police also saw messages on Skype between the offender and the AOI, and they matched images that the offender had sent to the AOI with Transport for New South Wales facial recognition material and also obtained the offender's driver's license. He was arrested on that day and charged with these matters.
The facts in relation to the count 2 offence came to light during a manual review of the offender's iPhone when police saw that there was a contact called "Kitten" within the Skype application on the phone. The following relevant messages transpired between the offender and Kitten. At 4.06am on 17 March 2021, the offender added Kitten as a contact on Skype. At about 2pm Kitten messaged, "Hey who's this soz?".
At 2.26pm on that same day, the offender replied, "It was just a random add tbh lol" and also "How old are you?". Kitten replied, "15, u?" To which the offender replied, "Oh wow thought you were older, see you haha". Kitten then replied, "Oh okay" and the offender messaged, "Yeah sorry". Kitten then said, "It okay I was board" and thereafter the offender and Kitten continued communicating. The offender asked where she was from and what she was doing. The offender told Kitten that he liked cars, motorbikes, hanging with mates, fishing, camping and four-wheel driving. Kitten replied in effect that she can't do any of those things, because she has no dad and no one she knows has a car. To which the offender replied, "Yeah true, that sucks."
During the Skype messages, the offender asked, "What are you friends doing?" and Kitten replied, "At school still probs" and she also referred to not being able to have her phone at school. To which the offender replied, "Oh true, that sucks". They continued messaging and at one point Kitten said she was waiting for her mother to get home.
This first chat on 17 March 2021 took place between about 2 o'clock and 4.39pm. On 21 March, that is about four days later, the offender messaged Kitten, but there was no reply. However, she replied on 22 March to the offender's previous message of the 17 March saying that she lived with her mother and they then messaged each other over a period of about three hours on that day, 22 March. At one point Kitten messaged saying that the offender was nice to her and "the boys at school sucked". The offender replied to this, but Kitten did not reply until 12 April 2021, after which the offender asked, "What do you look like?" and Kitten said, "I have a profile pic". To which the offender replied, "No, I can't see one".
Kitten then sent an image and the offender replied, "Oh yeah cool. What you watching?" At about 12.23pm the offender asked, "Where's all your friends?" and Kitten said, "Idk it school hols". Around 12.30pm, the offender asked Kitten if she had any more pics of herself, to which she replied, "Umm yeah heps", presumably meaning 'heaps' and she then sent another image of herself. The offender and Kitten exchanged other brief messages on six other days in April 2021.
However, the relevant communications that are the subject of count 2 occurred on 5 May 2021, when the offender initiated the communications which were then as follows;
"Offender: Hey what you up to
Kitten: Hey hun just got home
Offender: Aww yeah you should send me a pic of you
Kitten: Um I can find one if you want
Offender: Yeah any sexy ones haha, what you doing this arvo"
Kitten then sent an image. The offender then said,
"What you doing this arvo do you have a booty? Haha
Kitten: Not much u
Offender: Just chilling bored
Kitten: Oh okay
Offender: Yeah entertain me haha
Kitten: How
Offender: I don't know what do you do when you're bored
Kitten: TV n stuf u
Offender: Lay on my couch haha
Kitten: Oh okay
Offender: Yeah is that the only pic you have of you"
Kitten then sent another image.
Offender: Is that your friends
Kitten: Yeah
Offender: You're hotter
Kitten: Um yes
Offender: Cool waiting for the right guy
Kitten: I guess
Offender: Oh okay want to talk about something else
Kitten: Woteva you want
Offender: Well what you like talking about
Kitten: You can pik
Offender: Idk you choose lol do you have any bikini pics
Kitten: Um I don't know.
Offender: Oh okay do you got a bf
Kitten: No
Offender: Oh why not what's your actual name or is it Kitten lol idk
Kitten: Samantha lol
Offender: Don't want a bf oh yeah cool do you have snap?
Kitten: No
Offender: Oh okay can you take a pic of you right now
Kitten: Okay?"
These exchanges of messages took place between about 10 to 2 in the afternoon and just after 2.30 that same day. On 25 November 2021, on this day, the offender was arrested. He participated in an interview with police, in which he said a number of things including that he had spoken on Skype with the AOI who he met online. He denied having sexual conversations with persons identified as under 16 years. He said he had been using the Chatiw application for probably a year. He said he did not recall the username "Anyone4K9KOK". When showed a portion of the conversation with the AOI and asked whether he recalled it, the offender replied, "Not really, um sort of." But agreed that he was the author of those messages and said that he might not have seen her age.
When he was shown an extract of the conversation with the AOI on Skype dated 10 April 2021, he admitted that he had given his Skype name to the AOI and added the AOI as a contact and that the images were of him and his dog. He was asked again whether he saw her age mentioned in the Skype conversation and admitted he did and said, "That's when I sort of stopped chatting to her. Then she kept sending me messages saying, 'hey' and I just said I was busy at work and stuff like that." When asked what he meant at the time of the arrest, he said it was all fantasy. The offender stated, "Just like dirty talking online" and said, "There was nothing sexual there". In relation to his conversation with the AOI on Skype he said, "Didn't want to be mean and just say go away".
He told police that he was not aware that it was an offence to communicate in that manner to a child. When asked about "Kitten", the offender denied that there was anything sexual towards her. He also denied being sexually attracted to children. In relation to Kitten, the offender agreed she told him she was 15 years of age and agreed he continued to ask to talk to her and ask for photographs. When asked why, the offender said, so that he knew who he was talking to and that he was not "talking to her sexually... just chatting... as a friend." He also said that, "he didn't ask for sexual photos... just ask for photo".
When he was asked why he asked Kitten for a "sexy pic", the offender said he didn't know, and added that "might've forgotten how old she was" and said, "he didn't talk to her for ages so I might've forgotten how old she was". When asked about his response to Kitten's photo "you're hotter, are you a virgin?", the offender replied, "I think I thought she was 16". So those are the facts upon which the offender is to be sentenced.
As these are Commonwealth offences, it is necessary that I address the various matters insofar as they are relevant in s 16A(2) of the Crimes Act 1914.
Paragraph (a) of that subsection refers to the nature and circumstances of the offences. As was noted in the Crown's submissions, Refshauge J in R v Aniezue [2016] ACTSC 82, set out, by reference to earlier case law, a number of factors relevant to assessing the seriousness of the type of offences before the Court. These include the nature and explicitness of the indecent material, the offender's level of awareness and indecency and deliberateness of the communication, the age differential, the relationship between the offender and the victim, the number of communications, and the period over which they occurred, and whether the victim was a police officer or a real child. I will consider these matters insofar as they are relevant to the two offences before the Court.
In relation to count 1, the offender very quickly after commencing the communications suggested that he and the AOI meet up and he continued with this suggestion even after he was told that the AOI was 14 years old. Furthermore, this suggestion was made after the offender had asked clearly sexually motivated questions, such as whether the AOI was a virgin and whether she had tried being "fingered or sucking dick". The very explicit questions that the offender asked of the AOI and his requests to be sent photographs were clearly motivated by an intention to obtain some sort of sexual gratification and occurred after he was told that "she" was 14 years old.
There is no doubt that the offender was aware of the very indecent nature of these messages and that there was a considerable age difference between himself and the purported 14 year old. The indecent aspect of the communications between the offender and the AOI however occurred on only one day and were relatively brief in duration. As already noted, the victim was not a real child. In my view the count 1 offence is towards the lower range of objective seriousness.
In relation to count 2, the offender initiated contact with "Kitten" after identifying her profile randomly. He was told quite early in the communications that Kitten was 15, but continued contact with her nonetheless. Contact with Kitten continued over a substantial number of weeks. Although it was not until 5 May 2021, about six weeks after the first contact, that the offender engaged in communications that had an indecent element and these were relatively brief. Also they cannot be regarded as terribly explicit in the language that was used, although I accept beyond reasonable doubt that the offender knew they were indecent given the age of the child.
There was a considerable age difference. It was argued by the Crown that the offender's communications with Kitten were "strategic" in that they started off as benign and perhaps trying to win her trust, before later progressing to being indecent.
However, and was submitted by counsel for the offender, this argument might involve De Simoni error in that it is suggestive of a more serious offence such as using a carriage service to make it easier to procure a child for sexual activity under s 474.27 of the Code. Therefore, and while I accept that the earlier communications were somewhat benign, I do not approach them on the basis that they were "strategic" and I do not treat the escalation of the offender's communications as being a matter that makes the offence more serious. I regard the count 2 offence as being in the lower range of seriousness.
Paragraph (c) of 16A(2) refers to whether the offence forms a course of conduct. While each of the communications with the AOI and with Kitten occurred over a period of time, the indecent aspects in each case occurred on a single day. It cannot be said in my view therefore that the offending involved a course of conduct.
16A(2) paragraph (e) refers to any injury, loss or damage resulting from the offence. The "victim", if that is the right word, in count 1 was police officer and it cannot be realistically be said that any injury, loss, or damage resulted from this offence. And, in relation to the victim of count 2, while there is the possibility of some injury to this person, it is not a matter about which I can form any view beyond speculation.
In terms of paragraph (f) of 16A(2) which refers to whether there is any contrition, I make the following observations. The offender cooperated to a degree in the trial process in reaching agreement through his lawyers to the Crown case being led essentially through only one witness and I have taken this into account in his favour. However, in describing the offences to the psychologist after his conviction, the offender effectively justified his behaviour by saying that he understood persons communicating on the relevant internet platform were over 18 despite assertions by the AOI and Kitten to the contrary.
This is reasonably consistent with what he told the author of the Sentencing Assessment Report although he went on to tell the author that "girls that age do not need to know about that stuff". In my view, there is some although minimal contrition. Paragraphs (j) and (ja) of s 16A(2) refer respectively to the deterrent effect that the sentence may have on the person and on other persons. It is well established that general deterrence is a leading consideration with offences such as those before the Court. There is a great public interest in ensuring that persons caught engaging in indecent communications and other online activities targeting children are sent the message that such offences will be met with significant punishment. This is particularly important given the perception among some people that their online activities are anonymous and unable to be traced or detected. This is of course no longer the case as is demonstrated by the number of offences of this type that come before the Courts, offences that are often detected by means of proactive police operations designed to expose offenders.
As to the importance of personal deterrence of this particular offender, in my view it is unlikely that this offender will reoffend in a similar way given his experience of being exposed by police and convicted by a jury. However, in the absence of significant contrition, personal deterrence remains a matter of some relevance.
Paragraph (k) of s 16A(2) refers to the need to ensure that the person is adequately punished. This is of course a fundamentally important aspect of any sentencing exercise whether it be for a Commonwealth or State offence and one that I have addressed generally in these reasons.
Paragraph (m) of the same subsection refers to the character antecedents, age, means, and physical or mental condition of the person. The offender is now 32 years of age and was 30 at the time of the offending. He did not give evidence on the sentence hearing but his personal background and circumstances were placed before the Court by means of letters from his mother and a report from psychologist Dr Schweinsberg. The offender attended school until part way through Year 12, and since then has worked in a number of largely manual labour positions including carpentry and plumbing. He comes from a supportive family in which he has younger siblings. He reports no history of abuse, domestic violence or drug and alcohol problems in the family, although he has a minor history of substance abuse including alcohol, cocaine and MDMA.
The psychologist concluded that the offender had good insight into his mental health and that he was not suffering any significant mental health problems at the time of assessment. The psychologist noted, however, that the offender was likely suffering from increased distress and isolation around the time of the offences, in part due to the restrictions associated with COVID-19 pandemic. The psychologist noted further that based on information from the offender, he was attempting at that time of isolation to connect with others via "adult" based applications and that it was in this context that the offences took place.
The offender maintained to the psychologist that, in effect, he believed at all times he was communicating only with persons above 18 years. I do not however accept this assertion, which is contradicted by the jury's verdicts. In my view, the offender believed he was communicating with girls under 18 and in fact under 16 years of age, as the jury's verdicts confirm. I am satisfied that he did so with the purposes of sexual gratification. Having said that, I do not think that he is an offender whose primary sexual interest or focus is children. Rather, I regard the offences as having been opportunistic, and arising in the context of the offender's interest and engagement in sexualised communications which were mostly with other adults.
The offender has not been working pending the determination of these Court proceedings. He does wish to return to work as soon as possible and hopes to start his own carpentry/building type business and his mother says his work prospects in the rural area where the family live are good. The most significant recent factor in the offender's life is the very recent death of his father after a long battle with cancer. The offender's mother has confirmed that the offender was close to his father and had been a tremendous support to him and his family during his father's illness. She expresses concern for the offender's mental health due to the passing of his father. While this is a concern, I note that the offender continues to have the support of his family, with whom he can continue to live.
Paragraph (n) of s 16A(2) refers to the prospects of rehabilitation. In this regard, I note that the offender has a very limited criminal history. He has fairly good prospects of obtaining work and he retains the support of his family and has stable accommodation. He has also shown himself by his assistance to both his parents during his father's illness to be a person who can act responsibly and with empathy for others. While I balance this against his minimal remorse for the offences, I think that his prospects of remaining crime free and leading a useful life are reasonably positive.
Paragraph (p) of 16A(2) refers to the probable effect that any sentence would have on family or dependents. The offender has no dependents but it is relevant that I take into account the effect of any sentence on his family and in particular his mother. In one of her letters to the Court, the offender's mother refers to how helpful the offender has been in carrying out everyday chores on their small acreage. She also speaks about the crucial support that the offender provided to her and her late husband in the latter stages of the offender's, father's illness.
As was confirmed in Totaan v R [2022] NSWCCA 75, it is not necessary in Commonwealth matters that the impact on family be exceptional before it can be taken into account in a material way. In this matter, I am satisfied that the impact on the offender's family and in particular his mother is a matter to which I ought give some weight especially given the recency of the death of Mr Swinton senior and the undoubted impact of this upon the family and Mrs Swinton.
Section 16A(2)(AAA) of the Crimes Act 1914 provides that' in determining sentence, I have regard also to the objective of rehabilitating the offender including by considering whether it is appropriate to impose any conditions about rehabilitation or treatment options and/or to include within the length of any sentence sufficient time for the offender to undertake a rehabilitation program. I have taken this into account, but of course it does not remove the important requirements that the sentence be appropriate in its severity and reflect general and personal deterrence and the other important purposes or sentencing.
Section 17A of the Crimes Act 1914, requires that the Court not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in the circumstances. In this regard, the Crown submitted that a sentence of imprisonment is required, but that a head sentence of less than 3 years is appropriate. The offender however submitted that any sentence should be well under the 3 year mark and that I should conclude that the offender has already served an appropriate period in actual custody.
Section 20(1)(b)(ii) of the Crimes Act 1914 says that when dealing with a "Commonwealth child sex offence" an offender must be sentenced to a period of imprisonment calculated in accordance with s 19AF(1) unless the Court is satisfied that there are exceptional circumstances justifying another outcome such as immediate release upon giving security of the kind referred to in s 20(1)(a).
In this matter, the offender has already served a period of full time custody amounting to about 5 months and 9 days referable to his being bail refused on charges leading to the convictions for offences before the Court. In my view, the fact that the offender has already served that period in custody, which was during some of the most difficult stages of the COVID pandemic, and that since being released, he has been subject to fairly stringent bail conditions, amounts to exceptional circumstances which satisfy me that it is appropriate to impose a sentence which does not require him to serve any further time in custody.
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DETERMINATION
As there are two offences, I intend to impose an aggregate sentence. I convict the offender of each offence. I nominate an indicative sentence for count 1 of seven months imprisonment and for count 2 of four months imprisonment. As the two offences involve separate offending with different victims, there is a need in my view to some notional accumulation, but having regard also to totality principles. Mr Swinton if you could just stand up and I will announce and explain the sentence.
Pursuant to s 20(1)(b) of the Crimes Act 1914, I sentence you to an aggregate term of imprisonment for a period of nine months. I order, however, that you be released forthwith, that means now, upon a Recognisance Release Order for a period of 18 months, after entering into a self-recognisance, which is a type of bond, in the amount of $500, which will be subject to the following conditions;
1. That you be of good behaviour;
2. That you be subject to the supervision of the New South Wales Department of Community Corrections;
3. That you obey all reasonable directions of the New South Wales Department of Community Corrections;
4. That you not travel interstate or overseas without the written permission of Community Corrections and
5. That you undertake any treatment or other counselling as directed by Community Corrections.
OFFENDER: Yes.
HIS HONOUR: Do you understand all of that?
OFFENDER: Yes your Honour.
HIS HONOUR: So you'll be subject to that bond for a period of 18 months from today. Okay, you can take a seat. I direct that you report to the Armidale office of Community Corrections within seven days. I also direct that a copy of the report of Dr Ashley Schweinsberg be sent to the Armidale office of Community Corrections. Lastly, I make the forfeiture order under s 23ZD of the Crimes Act 1914 in relation to the mobile telephone and associated SIM card. All right, Ms Crown, Mr Pierce, anything in relation to those orders that needs to be raised?
KALLINOSIS: No your Honour.
PIERCE: No your Honour.
HIS HONOUR: Thank you all right. So Mr Swinton, you'll have to go to the registry here and enter into that recognisance, that bond and you'll be subject to that for the next 18 months.
OFFENDER: Thank you your Honour.
HIS HONOUR: Thank you, Court will adjourn.
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Decision last updated: 28 April 2023