Solicitors:
Maguire & McInerney Lawyers
M Hayes for the for Public Prosecutions (NSW) (Crown)
File Number(s): 2023/106442
[2]
Introduction
In 2022 Christopher Till was 26 years old. He had a job, he was in a relationship, he had a home. His life had not been without problems. His mother tragically died when he was seven years old, and he and his stepmother had their issues. During his childhood he showed symptoms of Autism Spectrum Disorder ("ASD"). He was bullied at school. He left school early, but he was able to gain an apprenticeship and a trade. He was to form relationships with other women, generally over the internet, and for short periods. He does not have many friends.
He utilised the internet to make his female friends. In 2022 he started chatting online with the complainant. After commencing this online relationship, he became aware that she was 14 years old. Despite their respective his ages, he continued the online relationship. The messages between them, included exchanging of still images and videos, that were often explicit, both in the texts and images. They showed them both engaging in sexual activity. This material was, given her age, child abuse material.
Till saved, by various means, those communications, including the videos and still images on his phone. That material, the details of which are set out in full in the Agreed Facts is sexual and graphic. There is no need to set out the details in this judgment.
Someone discovered that child abuse material and a report was made to police. Till was interviewed by police. He made admissions to what he described as a "romantic relationship" with the child. He gave police permission to inspect his phone. He was arrested and charged.
Police then spoke to the child involved. She disclosed that she and the offender had engaged in multiple acts of sexual intercourse between June and December 2022. A number of these acts were particularised. During the course of the interview, the complainant indicated there were other occasions when sexual activity had occurred. She also said that she willingly engaged in the acts of sexual intercourse, and that she was the person who initiated the sexual acts most of the time. She said that in 2023 Till had proposed to her.
The interview with the complainant and material on the phone led to eight (8) charges being put before the Court.
Sequence 1, an offence of possess child abuse material: Crimes Act 1900 (NSW), s 91H(2).
Sequences 6, 7, 8, 11, 13, 15 and 16, which each involve a charge that he had sexual intercourse with a child aged between 14 and 16: Crimes Act, s 66C(3).
[3]
Matters on Forms 1
Some other matters were placed on Forms 1. Sequences 9 and 10 attached to Sequence 8; Sequence 12 attaches to Sequence 11; Sequence 14 attaches to Sequence 13: Crimes (Sentencing Procedure) Act 1999 (NSW).
I will take into account the matters on a Form 1. While I do not sentence for those matters, they do require, in accordance with the guideline judgement, that greater weight be given to deterrence and community protection when I come to sentence for the matter to which they relate: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [39]-[42].
[4]
Maximum and standard non-parole periods
Each of the charges before the Court for sentence carries a maximum penalty of 10 years. I must take into account that maximum as one guide to the exercise of my sentencing discretion. That discretion is also guided by the need for consistency in sentencing. It is not suggested that there is a sentencing pattern that can guide my discretion. I have however, been referred to cases, where the Court of Criminal Appeal has examined various factual scenarios where s 66C matters have come before them. It is possible to derive from those cases some general principles that must be applied: Nelson v R [2016] NSWCCA 130; R v RD [2014] NSWCCA 103; R v Taane [2014] NSWCCA 330; Wakeling v R [2016] NSWCCA 33; Brown v R [2023] NSWCCA 330; Blackett v The Queen [2021] NSWCCA 210.
[5]
Agreed Facts
There are Agreed Facts. I have already referred briefly to the child abuse material facts. Till was in possession of 72 images of the child complainant engaged in sexual acts and/or sexual posing.
So far as the sexual intercourse matters are concerned, a short description should suffice. I am indebted to Mr Fraser, counsel for Till, for his summary.
[6]
Sequence 6
When aged 14 and 10 months, the complainant snuck out to meet the offender. They drove to park where penile/vaginal intercourse took place in the back of his car. The offender ejaculated. He did not wear a condom.
[7]
Sequence 7
The complainant was slightly older but still 14. They again went to the same park. There was an act of penile/vaginal intercourse in the back of the car. Again, there was ejaculation with no condom.
[8]
Sequence 11
The complainant aged 14 and 11 months. There was penile/vaginal intercourse in the car at the same park. Again, there was ejaculation with no condom.
[9]
Sequence 12
This offence involved another act of penile/vaginal intercourse in the same night as Sequence 11.
[10]
Sequence 13
The complainant was then aged 14 and 11 months. As with the earlier matter, in same car, in same park, there was an act of penile/vaginal intercourse in the car. Again, there was ejaculation with no condom. The complainant said that following this incident she felt some vaginal pain for a few days.
[11]
Sequence 14
On the same occasion as Sequence 13 there was an act of penile/anal intercourse. That matter is on the Form 1.
[12]
Sequence 8
This event occurred after the complainant's 15th birthday. She was 15 and 2 months. She invited the offender to stop by her house on his way to work. She was aware she would be home alone. There was penile/vagina intercourse in her bed. Again, there was ejaculation with no condom. She said she felt some pain for some days after.
[13]
Sequences 9 and 10
These matters are dealt with on a Form 1. They occurred at the same time as Sequence 8. They involved the offender performing cunnilingus on the complainant. She then performed fellatio on him.
[14]
Sequence 15
Occurred when the complainant was 15 and 2 months. The two met in the bushland near her home where she performed fellatio on the offender.
[15]
Sequence 16
The last matter occurred when she was 15 and two-and-a-half months. She snuck out to meet the offender. They had penile/vaginal intercourse and she felt some pain.
[16]
The guilty plea
The offender's plea of guilty requires that I reduce the otherwise appropriate sentence by 25% to reflect its utilitarian value. Had he chosen to deny or defend the charges the child would have been required to give evidence. I will reduce the otherwise appropriate sentences. I will indicate in what will be an aggregate sentence by 25% to reflect the utilitarian value of the plea. I will take care that the process of accumulation does not reduce the benefit of the discounts.
His plea of guilty also reflects his assistance with the course of justice and an acceptance of responsibility. This is reflected in the material before me which shows he has some insight into his offending behaviour. The plea has other values, which will be taken into account and synthesised along with other matters.
[17]
The objective seriousness - child abuse material
The material was explicit. The child was young. The offender kept the material on his phone, presumably for his own prurient interest. There is no evidence that he disclosed that material to anyone else, or that he had that intention. But everyone in the community, children in particular, must understand the dangers of providing such material to others, even if they believe that it is part of a romantic relationship. Romantic relationships do not last, but material stored on phones do. The mere fact it is stored can have a detrimental impact on the person who knows the material is there.
Every time child abuse material is accessed is another example of a person exploiting that child. If it is accessed by others, or made generally available, it can have devastating consequences for the child involved.
I was referred by both parties to Minehan v R [2010] NSWCCA 140 and the very helpful guidance of Hulme J in that case. There is an absence of many of the more aggravating circumstances that could apply in this matter, and it would appear that the genesis of these charges was someone having access to material without the offender's knowledge.
Given the number of images and the explicitness of them, this is a matter where, while not nearly as serious as many of the matters that come before the Court, a custodial sentence is warranted.
[18]
Objective seriousness
So far as the sex with a child matters are concerned, it needs to be stated and restated that every act of sex with a child is a serious offence. There is an absolute prohibition on sex with children. There is no evidence here that the offender groomed the child, but he was significantly older than her. He was in another relationship with an adult at the time. He had been in relationships before. He did not in any way discourage the acts and was obviously an active participant in them.
The nature of the sexual intercourse is generally not significant when it comes to assessing objective seriousness, but it is generally accepted that penile/vaginal intercourse, because of the risk of pregnancy and disease and because there is a likelihood, particularly with a child, that there will be vaginal pain, can be treated more seriously than some other forms of intercourse. So much is accepted here.
I need to consider the nature and circumstances of the acts and their age difference. Although here the actual age may, given the matters to which I will soon refer, not be indicative of the actual intellectual age of the offender. The absence of exploitation here is significant, but the offences occurred over months. They occurred over the period of her 15th birthday.
The presence or absence of consent is a relevant factor, but, as Basten and Rothman JJ pointed out in Nelson v R lack of consent is not an element of these offences. Children are, as a matter of law, deemed to be unable to give informed consent. This is because, it is accepted, that they do not have the capacity to appreciate the nature and consequences of the activity.
Courts accept that even when the activity is not opposed by the complainant, it will be damaging. Early sexual relationships with adults often exploit or exacerbate the precarious sense of self-worth and self-respect in a child. It is recognised that this can have lifelong consequences, including upon future relationships, and lead to further self-destructive behaviour: Nelson v R at [23].
The absence of significant aggravating features does not mitigate, and the child's agency cannot be ignored: Bell v R [2019] NSWCCA 251 at [32]-[33]. But at the same time, an adult exercising adult responsibility could not, and should not, have responded in the way he did.
There was repetition of the offending; there was persistence. One event occurred in the child's home and although that is a matter that has to be considered, there is no evidence that the sanctity of her home was violated, in the sense that is often applied to that aggravating feature.
It is accepted, given the persistence, the age of the child, their relative ages, that only custodial sentences could meet the purposes of sentencing. And, although these matters are not as serious as some that come before the Court, there are enough serious features to justify that conclusion.
[19]
Subjective case
The offender has no criminal record. He was born in 1996. He grew up locally. I have referred already to some aspects of his background.
I have the benefit of a report of Dr Thomas Dornan, a registered psychologist. That report is comprehensive. He notes at par [74]:
"Mr Till … has always found social interactions challenging and … has difficulties interpreting other people's behaviours. He also appears to have had childhood issues processing some sensory and cognitive information. He presents with persistent deficits in social communication and social interaction across multiple contexts, including deficits in social-emotional reciprocity; non-verbal communicative behaviours; and developing, maintaining and understanding relationships."
That conclusion is borne out by a diagnosis that he meets the criteria for ASD: Dr Doran's report at [28]. ASD "is a neurodevelopmental disorder characterised by persistent deficits in social communication and social interaction, as well as restricted, repetitive patterns of behaviour, interests or activities". That diagnosis matches the history that is before me. Dr Doran also believes that there is evidence of a Persistent Depressive Disorder with mixed features: par [79]. ASD can lead to lack of self-awareness.
That he is "lonely and withdrawn" does not provide the offender with an excuse: Doran par [29]. It is clear from the material before me that he knew that sex with children was unlawful. He took steps to avoid being found out, not just because he was in a relationship, but because of the illegality of what he was doing.
Dr Dornan analysed Till's potential risk of re-offending. He applied both static and dynamic risk assessment factors. He noted that studies and predictions using actuarial risk assessments are not always helpful. One reason, which many in the community may not understand, is the low base rate of sexual recidivism makes accurate prediction of future offending difficult. Simply put this means that those offenders who are convicted and brought before the courts have a low rate of recidivism.
He sets out in his report, detailed factors which are protective of further offending, particularly Till's capacity to work and maintain a home. He does not present with other significant problems. There is no history or indication of sexually violent ideation.
Dr Doran also notes there are matters which elevate Till's risk of future offending; some chronicity in the offending, that he has a major mental illness, he has problems with self-awareness, and problems with stress and coping.
There are some underlying factors which led to the possibility that he suffers from Post-Traumatic Stress Disorder. At the same time, Dr Doran endorsed at par [105] characteristics of a "prosocial sexual identity, and no deviant sexual interests". And, he does not have any significant drug or alcohol problems.
Ultimately, Dr Dornan concludes that Till has low/moderate risk of reoffending and that, accordingly, he is unlikely to qualify for the programs for serious sex offenders run by Corrective Services. He recommends he be referred to the Moderate Intensity Sex Offender Program which can operate both in custody and in the community. A copy of Dr Dornan's report will go with the warrant.
The offender has been in custody since he was committed for sentence. There were 2 days of custody prior to that. It is agreed that I will start this sentence on 28 January 2024.
Dr Dornan sets out Till's response to being in held gaol. He is not well equipped for a number of reasons for imprisonment. The nature of the offence has led to him requesting protection. He is presently in special management area protection.
Programs that he needs to assist with his mental health are unlikely to be made available to him. It is unlikely the time he will have left to serve his sentence that he will be able to complete the programs should he get into one. He will be, because of his age, small size and lack of criminal antecedents, and mental health problems, be more vulnerable in gaol than many other prisoners.
His mental health conditions can best be managed in the community, but the law in its harshness requires he be removed from the community. That removal carries with it two risks; one is that he will be further damaged by the harshness of the prison environment; and second, that engagement in the programs he needs will be delayed.
[20]
Moral culpability
Sentencing, while it can, and should, take into account an offender's background and their mental condition, and give appropriate weight to it, is also about punishment. Till's ASD does mean, as both Ms Hayes, for the Director, and Mr Fraser submit, that his moral culpability is not the same as that of a person who did not have that underlying condition. It was a contributing factor, I suspect, to his actions: Donald (a pseudonym) v R [2021] NSWCCA 198 at [116] citing Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. But it does not mean he is absolved of moral culpability for what he did. He knew what he was doing was wrong and he persisted with it. He knew the child's age. He knew his own age and he knew she was too young for him to do what he did.
Here, the ASD must be taken into account, but the law is clear, presumed harm on a child too young to make rational choices by an adult who is capable of rational choices requires punishment.
[21]
Structure of the sentence
There are multiple offences before the Court. Often repetition of offending requires considerable accumulation, but here the circumstances of each offence were quite similar. The added burden on the complainant, of course, must be taken into account, but care is required.
There will be a finding of special circumstances because of the circumstances of the offender, his good future prospects, his need for treatment in the community, and the fact he is not previously offended and thus is deserving of some leniency.
[22]
Instinctive synthesis
The offences require the Court to take into account the exposure of the child to premature sexual activity. That is the key harm that is to be addressed. The child is presumed to play no part in the offence and that is only right and just given her age.
Till has a capacity to lead a law-abiding life in the community as he has demonstrated in the past. His mental illness and need for treatment must be taken into account, so too must his vulnerability in custody, and my finding that he would be better treated and have greater prospects of rehabilitation if supervised in the community. That said, given the number and nature of the offences there must still be a custodial component of some length.
Synthesising all those factors in this matter, I come to the following conclusions, which include a significant finding of special circumstances, and reductions of 25% for the utilitarian value of the plea.
[23]
Orders
I will go through the matters and indicate sentences.
In relation to Sequence 1, a s 91H(2) offence: a sentence of 1 year and 6 months.
In relation to Sequence 6, a sentence on the first act of sexual intercourse with the child: a sentence of 1 year and 10 months.
In relation to Sequence 7: 1 year and 6 months.
In relation to Sequence 8, which has the Form 1: 1 year and 10 months.
Sequence 11, with a Form 1: 1 year and 10 months.
Sequence 13 with a Form 1: 1 year and 10 months.
Sequence 15: 1 year and 3 months.
Sequence 16: 1 year and 10 months.
The aggregate sentence in this matter of 4 years will commence on 28 January 2024. There will be a non-parole period of 2 years reflecting a substantial finding of special circumstances, meaning the offender will be eligible for release to parole on 27 January 2026.
[24]
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Decision last updated: 18 July 2024