R v Warren Drake [2014] NSWDC 252 | Case summary

R v Warren Drake [2014] NSWDC 252 | Case summary | Zoe

Prior criminal trial

The offender was tried in Bega District Court before a jury and Judge Haesler SC in August/September 2011 on one count of sexual intercourse with a child, TJ, between the ages of 10 and 14. I have been provided with a copy of the remarks on sentence of Judge Haesler SC dated 19 December 2011. His Honour referred to the fact that the offender, in that trial, ran a defence which was essentially that he did not know the complainant's age. The jury there clearly rejected that defence and, as his Honour noted, clearly accepted the evidence of the complainant. That resulted presumably from the jury's consideration of the offender's prior knowledge and involvement with the young girl, their own individual history from an early age and their family history.
It is also clear from his Honour's remarks that the offender had a romantic attachment to the complainant in that case and indeed "took things far more seriously than TJ, the complainant".
The charges in the trial were brought under s 66C(1) of the Crimes Act for which the maximum penalty is one of 16 years imprisonment.
His Honour also found that the criminality involved fell towards the lower end of the spectrum. He was influenced by the pre-sentence report as well as the associated psychologist's report which seems to be that the offender had been placed in a category of "low to moderate risk relative to other male sex offenders". His Honour also found that the offender was at that time a young man who had been working for a very long time.
"He is well-established in the community and is starting a new and proper relationship. He has excellent prospects and he is unlikely to re-offend".
The offender was sentenced on 19 December 2011 and required to enter the bond imposed under s 12 of the Crimes (Sentencing Procedure) Act for 12 months. He was also placed on a Commonwealth bond to be of good behaviour for 18 months. All the offences for which the offender is to be sentenced for his breach are of that s 12 bond. There is also another bond for 18 months on which I propose to take no action.
That optimism of Judge Haesler SC proved to be unfounded and in a very short time. The evidence before Judge Haesler is clearly different from the evidence before me in these proceedings. As a result of that conviction the offender was placed on the Child Protection Registrar in accordance with the Child Protection Registration Act NSW 2000. His registration on that Child Protection Registrar was updated apparently after the birth of his child on 4 July 2012.
Further reports were sent to his primary address at Tregear, New South Wales. This Registrar becomes relevant in relation to some of the Form 1 offences.

[14]

Offender's personal details and circumstances

The offender was born on 13 December 1989, he is nearly 23 years of age. On his account he grew up in a large supportive and close family as the third youngest of six children. Mr Drake identifies as an Aboriginal man. In his interview with Dr Seidler, the offender described a positive relationship with both parents although his father could be, using his words, "pretty nasty at times regarding discipline." All the offender's siblings bar one have been in trouble with the law at various stages including serving time in custody. The offender offered that his exposure to antisocial and negative influence may be responsible for this behaviour.
The family have resided in Department of Housing accommodation for a lengthy period of time despite his parents maintaining employment. The offender reported no history of significant substance abuse nor a personal history of abuse and presented an unremarkable medical history. The offender's early schooling was also largely unremarkable, however, he acknowledged that he did not fit in well at high school and was unhappy although he had friends has not teased or bullied to any great degree. The offender told Dr Seilder that his behaviour at high school was problematic and that he was suspended on eight occasions for fighting with other students. He subsequently left school in Year 9.
He completed a Certificate III in Landscaping and Horticulture and has been in various forms of unskilled labour since he was 15. His longest period of employment is four years as a sheet metal worker which is commendable. He has expressed the desire to return to welding work in the future.
With regard to his friends, the offender told Dr Seidler that he has a lot of friends, many of whom he has known over the long term and about half of whom are engaged in antisocial behaviours. He stated that although he goes out socially he does not like going out drinking and spends time with his family.
Since losing his virginity aged 16 the offender has had about eight sexual partners with whom he was in a relationship with and three serious relationships. The offender acknowledged that in his most recent relationship he was not that faithful. His offending behaviour and incarceration contributed to its breakdown. The offender would like to play a role in the life of his son from this relationship, however, obviously that has its constraints at the present time.

[15]

Prospects of Rehabilitation

I have particular concerns about the rehabilitation of this offender. I have been given various reports, particularly the pre-sentence report for the specific purpose of this assessment, exhibit 7, dated 15 July 2014 as well as the associated treatment summary and risk management report of 13 May 2013 and the report of Dr Seidler from Lennings Seidler Collins, psychologists, of 22 April 2014, exhibit 10. It is clear from the report of Dr Seidler that the offender has a somewhat distorted idea of consent and boundaries. His view in April 2014 when he was interviewed was that he still thought that the degree of physical enjoyment of the girls involved would determine their capacity to consent and enjoy sexual behaviour. Clearly such views need to be addressed along with the offender's present apparent predilection for contacting young girls who do not have the capacity for consent.
A common feature of these reports is that the offender seems to be part of a group which is a moderate to high risk of re-offending. Defence counsel, Mr Ozen, submitted that these classifications by statistical grouping are generalisations and that any consequential specific categorisation of this offender may lead to an injustice. Defence counsel also points out that some of the common comments of the various experts referred to the offender's "flat affect" in his conversation with the experts and his borderline verbal intelligence. He also submits that the report of Dr Seidler in paragraph 69 is to the effect that the offender will respond and has the capacity to make important changes in his life.
Mr Ozen has submitted that in this regard I should be wary of not taking full account of the offender's familial and indigenous background. He further submits that the offender in this category may well be subject to cultural and linguistic constraints which should not be misinterpreted. I agree with those submissions and I will take them into account.
The Crown in response pointed out that there are other denials by the offender of his culpability in criminality which did not indicate full co-operation with the police.
In the light of the submissions made I have in the intervening period reviewed the reports to which I have referred. The thrust of all the independent evidence before me is that the offender is a person who is at significant risk of re-offending. Notwithstanding that risk categorisation I am still faced with a very young man who despite previous appearances in this Court has not engaged in any meaningful rehabilitation or treatment. That is a live consideration when determining an appropriate sentence and the offender's prospects of re-offending: R v Blackman and Walters [2001] NSWCCA 121 citing with approval King CJ's remarks in Yardley v Betts (1979) 22 SASR 108 at 44.

[18]

Offender: family

The offender did not give evidence, however, his mother did. Mrs Drake told the Court that the offender came from a large family with six children, four of whom, not including the offender have been diagnosed with Attention Deficit Disorder Syndrome.
The offender lived with his mother until he moved out with another person with whom he was then in a relationship. He was then aged 22. Mrs Drake said that she was aware of the charges and the issues which had arisen from the prior trial matter. She said that she was aware of some of the offender's relationships including that with Elizabeth, the mother of his child, B, who was born in March 2012.
She had a limited awareness of his other relationships other than her perception that there were numerous such relationships. She was not aware of his practice of sending inappropriate communications to young girls. She is also not aware of his use of pornography from the age of 13 which involvement appears to have continued thereafter.
Mrs Drake said and I accept, that she visited the offender since he has been in custody bail refused from 9 August 2012. She has visited twice a week, every week since that time.
Mrs Drake expressed the offender has regretted what he had done. The offender, himself, as I have noted did not give evidence and that expression of remorse cannot be tested. From the hearsay evidence that I have including from Mrs Drake and to the extent that it is set out in the psychologist's report what appears to be distressing the offender the most his is inability to contact his son and the ongoing restrictions which have been placed on him. While I have no doubt of Mrs Drake's love for her son and the genuineness of her current desire to provide a home for him on upon his release I am concerned about whether she is likely to exercise effective supervision of him in the event that (as appears likely) he returns to live with her. Mrs Drake did not know that there were further conditions in place resulting from his previous convictions, for example, with his Internet usage or phone usage. Indeed, it appears that the offender confirmed at the time that there were no other conditions.
Mrs Drake seems motivated to "protect him from himself". She considered that although he had the build of a man he is really just a boy and he needed her to make him understand things fully and adequately. The Agreed Facts and communication sent by the offender to the complainants support the mother's conclusion and indicates a level of immaturity on the part of Mr Drake.
A necessary part of the offender's rehabilitation will involve his interaction with his family particularly his brother and siblings. It is submitted that the fact that the offender's mother and family are now fully apprised of the seriousness of his conduct and the ongoing restrictions that are placed on his behaviour give renewed confidence that the offender's family will be of positive assistance to the offender in the future. However, I have some reservations in accepting that particularly given the frequency of Mr Drake's offending and the rapidity with which it occurred after his criminal trial.

[19]

Consideration

What was involved in all these cases was a series of sexual offences involving either pre-adolescent or adolescent girls whom the offender attempted to contact through the use of electronic or mobile phone contact. The offender clearly set up a Facebook account including his name and photographs of himself. There does not seem to have been any or any significant attempt at deception in terms of his own identity or his age.
The extent of the offender's actions became apparent as a result of the complaint made by Ms NP when she spoke to her mother and her mother took her to the police station. The complaints involving the other three victims, whose names are listed, seem to have been the result of private messaging and other conversations. It is clear that the offender generally tried to entice young girls to participate with him further in email or text conversations by extending credit to their respect phone accounts. One of those matters involving Ms M occurred on 30 April 2012 which is the same day that he, the offender, was attending a Sex Offender's Program in Surry Hills. In my view that is a matter which gives support to the Crown's submission that there has been a superficial engagement by Mr Drake to the extent of disregarding the messages he was getting in those programs or treating it with contempt. Whatever his views were as to the co-operation with respect to the victims, and it is clear that he regards them as having been willing participants in conversations with him, he must have known the criminality of what had occurred given his previous trial and conviction for similarly offending behaviour.
All the offences occurred in a relatively short period after the offender had been involved in a long trial where he was found guilty and was the subject to the sentencing process and the sentence itself by the District Court. There could have been no doubt that the offender was aware of the criminality of his conduct. However, it also highlights the need for this offender to undertake prolonged and intensive rehabilitation.
There does not seem to have been any manipulation or pressure by him on any of the victims nor does there seem to have been any commercial or other widespread for the dissemination of the material involving the complainants' photographs or that of the offender himself. None of the counts involve acts of the offender which mean that there would be widespread embarrassment of any of the complainants as is sometimes the case with messages of pictures particularly amongst people of this age. That is to the offender's credit. I find that any photographs obtained from the complainants were simply obtained and retained for his own pleasure. What was involved is a consistent and persistent contact with young girls by electronic means with the clear intention of meeting up with them or maintaining contact with them or storing explicit images of them. Neither the prior court proceedings nor the subsequent contact with the various probation and treatment authorities seems to have made much difference to him.
Following the trial the offender was placed on a suspended sentence with the appropriate bond conditions, however, it seems he did not engage with any particular course of treatment. It is evident that the offender needs to engage in such treatment if he is to become a functioning member of society.

[23]

Consideration of totality

Totality is one of the most important issues in this particular sentence proceeding, here the offender as I have said has been in custody since 9 August 2012. The sentence for imprisonment which was suspended was one of twelve months. That was a separate sentence arising out of a trial involving totally separate circumstances and a different but again young complainant. Considerable leniency was extended to the offender for the reasons set out by Judge Haesler SC. That leniency was abused by the offender and within a very short period. In my view having regard to the matters set out in the remarks on sentence and the surrounding circumstances, the appropriate sentence for the breach of the suspended sentence is a non-parole period of eight months with a parole period of four months. To take into account principles of totality I will commence the sentences for the offences committed whilst on the bond from 9 April 2013, eight months after the date the offender went into custody.
Counts 1, 2, 3 and 8 all involved NP. Acts of intercourse involving young girls should be the subject of a penalty which marks the principles of general deterrence. Here also the requirements of specific or personal deterrence need to be borne in mind with this offender. This is particularly the case given the similarity of the offences in Count 1 and a number of the offences.
The other concerning factor is the rapidity with which the other offences occurred after the earlier sentence and the offender's involvement with the Probation Service and the Sex Offenders Program.
The sentence imposed on Count 1 should be largely accumulated in that what is involved is an entirely separate kind of criminality from those involved in Counts 2, 3 and 8. Count 1 involved an act of digital penetration with a young 14 year old girl who was, as far as the offender concerned, a willing participant in what had occurred. Although a young man, the offender was much older than the complainant.
The sentences on Counts 2, 3 and 8 should be served concurrently. They involve essentially the same complaint of NP and arise out of the same method of communication and indeed the same relationship. They should be dealt with together to avoid a crushing sentence on the offender. There is some leniency to the offender in this approach.
Counts 4, 5 and 6 involve SM and BT. Each of these offences represent an attempt by the offender to initiate and pursue electronic forms of communication with different young girls for sexual purposes, whilst nothing actually came of them that sensation of activity was not brought about by the offender.
The sentences in relation to counts 4, 5 and 6 should be the subject of the same sentence. They will be served concurrently. The one common element is that the grooming of each complainant was clearly contemplated by the offender. Further, that he took steps to contact them repeatedly at a time when he must have known that he was restricted from such activities for those purposes.
Counts 7 and 9. They (as with Count 8) involve offences against the Sex Offender Registration and supervision schemes. While the breaches are not significant the Form 1 offences indicate there are a number of related breaches over a period of time. The purposes of sentencing need to include as an aspect of specific deterrence the message to the offender that these schemes are to be strictly complied with.
The sentences on Counts 7 and 9 should be the subject of concurrent sentences. They essentially relate to the same kinds of criminality concerned with the offender's reporting obligations and his compliance with the various Registration schemes.

[24]

Plea of guilty

The Crown accepts, and I find it appropriate, there should be a discount on the sentence which otherwise would have been appropriate in the order of 25%. Timing of the plea meant that the complainants did not have to give evidence at the trial but were also spared of detail conferences with police and staff.
The offender did not give evidence although I note there is no statutory requirement that the offender must give evidence before remorse can be taken into account: Butters v The Queen [2010] NSWCCA 1. In Alverez v R; Farache v R [2011] NSWCCA 33, Buddin J said: "It is important to emphasise that the court was not taken to any decision in which it has been authoritatively stated that an offender will only be entitled to the benefit of a finding of remorse in the event that he or she gives sworn evidence to that effect...Indeed it would be surprising if there was any such authority because it is readily apparent that an offender may, in some circumstances, demonstrate remorse by either words or conduct without giving sworn evidence...There are other types of conduct on the part of an offender which may well also be indicative of remorse".
To the extent relevant, there is some remorse reflected in the plea, however, that needs to be balanced against the impression gleaned from the various reports as to the offender's belief in his responsibility for criminal conduct involving young girls. Mr Ozen sought that there be an additional discount in respect of remorse and contrition inherent in the plea and as to what was said to be evident from Mrs Drake when she gave her evidence of what she observed the offender's reaction to have been while he has been in gaol. I do not think that there should be any further discount available to the offender than that contained in the 25% plea discount for the plea of guilty, in particular the timing of these repeat offences means the offender is not entitled to any leniency which otherwise would be extended to him particularly because of his age and the absence of prior convictions before the trial matter.

[30]

Sentence

You are convicted on each of those counts.
In relation to each of the counts I impose the following sentence.
For the breach of the s 12 bond I direct that the s 12 bond be revoked. The offender is sentenced to a non-parole period of eight months imprisonment commencing 9 August 2012 and expiring 8 April 2013, a balance of term of four months. The head sentence is twelve months, expiring 8 August 2013. So that is the suspended sentence that Judge Haesler SC imposed.
In relation to breach of the Commonwealth bond I direct that no action be taken.
In relation to Offence 1, that is the sexual intercourse involving NP, for which the maximum penalty is one of 10 years imprisonment. You are sentenced to a head sentence of two years and six months commencing on 9 April 2013 and expiring on 8 October 2015 consisting of a non-parole period of imprisonment of one year and six months commencing on 9 April 2013 and expiring on 8 October 2014.
Offence 2, the grooming of NP, for which the maximum penalty is one of 12 years imprisonment. You are sentenced to a fixed term of imprisonment of three months commencing on 9 February 2014 and expiring on 8 May 2014.
Again, in relation to possess child abuse material for NP, a fixed term of imprisonment of three months commencing on 9 February 2014 and expiring on 8 May 2014.
In relation to Count 4, in relation to the complainant PS, a fixed term of imprisonment of three months commencing on 9 July 2014 and expiring on 8 October 2014.
Offence 5, that is the one involving CS for which the maximum penalty is also 12 years imprisonment, you are sentenced to a fixed term of imprisonment of three months commencing on 9 July 2014 expiring on 8 October 2014.
In relation to Count 6, re LT, a fixed term of imprisonment of three months commencing on 9 July 2014 and expiring on 8 October 2014.
In relation to Offence 7, not informing the police of your current residential address, taking into account Form 1A, I fix a term of imprisonment of two months commencing on 9 October 2014 and expiring on 8 December 2014.
For Offence 8, in relation to regular unsupervised contact with NP, taking into account Form 1B, you are sentenced to a fixed term of imprisonment of two months commencing on 9 February 2014 and expiring on 8 April 2014.
For Offence 9, that of writing to EB requesting to see your son, taking into account Form 1C, again a fixed term of imprisonment of one month commencing on 9 October 2014 and expiring 8 November 214.
So the overall effect of the sentence will be that you will be released from custody on 8 December 2014. Do you understand that?
OFFENDER: Yes.
HIS HONOUR: That is the operative date as far as you are concerned.
OFFENDER: Yes.
HIS HONOUR: That will mean that you will be home in time for Christmas. I want you to bear this in mind Mr Drake, on one view I have dealt with you very leniently because I am concerned that you are a young man who was out of control when you were but that you need to be fully aware that that has got to stop. You were dealt with very leniently indeed by Judge Haesler SC in this Court in my view and you abused that leniency and that opportunity pretty quickly.
On 8 December 2014 I recommend the offender's release to parole subject to the following conditions:
To maintain and observe such conditions:

as may be imposed upon him by those conducting the CUBIT programme or any other sex offenders program, in particular to notify Community Corrections of his address or any address that you occupy;
comply with any requirements as to the use of electronic or telephonic communications including Facebook and the operation of any mobile phone and that he notify Community Corrections of the address;
That he attend within 14 days of his release to parole any one of the following services as may be recommended by Community Corrections: 1. Forensic Psychology Services Pty Ltd at Surry Hills; 2. Pastoral Counselling Institute; or 3. NSW Commission for Children and Young People's Child Sex Offender Counsellor Accreditation Service And comply with any recommendations of that service.

R v Warren Drake

At a glance

Court

Decision date

Source

Judgment (31 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)