Mr Ainsworth (Counsel for the Offender)
File Number(s): 2020/315274
[2]
Judgment
On 4 November Robert Wood was arrested and charged with one offence contrary to s 474.26(1) of the Criminal Code (Cth), namely that, he used a carriage service to transmit communications to a person under the age of 16 years with the intent of procuring the recipient to engage in sexual activity. This offence carries a maximum penalty of 15 years imprisonment.
He has been in custody since his arrest and has since spent his 61st birthday in custody. He pleaded guilty to that charge in circumstances in which the Crown acknowledges attracts a 25% discount on any term of imprisonment.
He has no criminal record.
The agreed facts show that he came under notice having placed an advertisement, titled "Sutho Shire Daddy Seek Teen Son" on a site called "Locanto" which is utilised for classifieds and the buying and selling of goods and services, as a legitimate marketplace, and in a way, I am told from the bar table, similar to services such as Gumtree. On 8 October the Child Exploitation and Internet Unit of the New South Wales Police Force commenced an investigation into the website and they found the offender's advertisement. In the advertisement he said that he was,
'looking for a teenage boy to call son and be a toy boy and for companionship, travel and fun times together and develop a caring daddy son relationship but happy to explore your sexuality on a casual basis.'
As Mr Ainsworth of counsel puts there was no suggestion that he was targeting boys under the age of 16 or children under the age of 16.
An assumed online identity (AOI) adopted by the police investigators responded to the advertisement and stated that the recipient was 14. In short, between 8 October and 4 November 2020 the offender engaged the victim in sexualised chat online, with the intention of procuring him to engage in sexual activity. The nature of the contact is set out in great detail and the facts I will return to the relevant parts when considering the Crown submissions on objective seriousness.
Ultimately on 3 November in the last online contact between the AOI and the offender the offender asked, "Are you sure you don't want to wait and experiment with guys your own age?" The offender had made plans to meet with the intended victim at a hotel. He was seen parked outside the address which was the subject of the arrangement during the chats.
Upon his arrest, he participated in an interview in which he acknowledged he placed the advertisement. He had arranged the meeting to hook up and meet and spend some time with the AOI. He had booked a room in a hotel and he was going to give lubricant and a dildo to the intended victim and that he wanted a father and son relationship.
A sentence assessment report was prepared on 1 April and the subjective case is set out there and in a report of Sam Borenstein, clinical psychologist, as well as in two references. In the Crown's helpful written submissions, none of which are specifically challenged by Mr Ainsworth, the Crown acknowledges the limitations sometimes to be taken into account when histories are not tested or adopted, but the material in this case seems to be a reasonable basis upon which to proceed given that the detailed subjective history appears relatively unremarkable.
At the time of the offending he was living with a friend in Gymea in an apartment which is owned by Mr Wood. He had been conducting a property maintenance business for some time and he is apparently well respected in that field and intends to return to that business on his release, it having been overseen by his friend while he has been in custody.
He denied having any attraction towards male children, claiming he believed the AOI was lying about their age and he wanted to catch the person out. He acknowledged that once he knew the victim's age he should have ceased contact.
To the author of the sentence assessment report he appeared unable to comprehend the impact of his offending as the victim was an AOI and not an actual 14 year old male, but he was willing to engage with intervention to address the sexual nature of his offending. He was assessed as being at a low risk of re-offending.
His friend Andy Young speaks favourably of him, having known him for over six years and he points to the very stressful nature of his gardening work both physically and mentally. He expresses the view that Mr Wood has every intention of improving and that he will benefit from any support he receives in the community.
Shirley Woo, a coordinator at the Red Cross, has known the offender for some unspecified period of time, but she describes him in favourable terms and says that she has only heard good things about him. She does not specify the extent of her knowledge about the case, neither does Mr Young. However, Mr Ainsworth pointed out Mr Young is present in present in Court today and there is a sufficient basis for assuming that they have some knowledge of the nature of the offending given the circumstances, and given he has been in custody for some time.
He told Mr Borenstein that he had been threatened and assaulted while in custody. As to his offending behaviour he acknowledged that he did the wrong thing. He said he thought the person was role playing and as far as he was concerned the person was older. He denied any attraction towards younger girls or boys and Mr Ainsworth points out, having had a long career as a teacher and a tennis coach and been previously been married there has been no indication of any such improper attraction to younger boys or girls. Notwithstanding the opportunities that his employment as a teacher and a tennis coach may have presented.
He identified himself as bisexual and acknowledged that he previously engaged in similar online activities with people aged between 19 and 22. He said that he thought the person he was speaking to was at least 19.
He had an apprentice in his gardening business for about 18 months and hoped that that would be someone that he could hand on his business to but that did not work out.
He grew up with his adoptive parents in Sydney. His mother was a conservative church going Christian and his father an accountant. His mother told him only this about sexual matters, namely, "do not have sex before marriage." His first sexual experience was in his early thirties with his fiancé. When that relationship ended he had been married for six years.
He completed year 12 at high school. He completed a Diploma of Education and taught physical education at high school for seven years as well as coaching at a tennis academy.
There is no suggestion of any serious psychiatric disorder. The profile assessment testing confirmed his propensity to act impulsively without considering the consequences of his actions, more so when subject to stress, as was the case leading up to and during the offending period.
Mr Wood said that he had been indebted to his adoptive parents and he followed their life script and values as best he could, but he struggled with his sexuality. He was denied, as an adolescent and young adult, sexual experiences which in all likelihood, according to Mr Borenstein, impact deeply on his psychosexual development. His risk of re-offending was assessed as being low.
The Crown's written submissions point to the general principles of sentencing for Commonwealth offences and in particular the recent amendments inserting new provisions relevant to sentencing for child sexual offences. The general principles to be applied include that general deterrence is a primary sentencing consideration, particularly in light of the increase and prevalence of the internet as a means of allowing predators to forge relationships with children. A sentence of immediate imprisonment will ordinarily be required for such offences.
There is intrinsic harm caused by sexual offences and evidence of prior good character will often have limited weight in such matters. The principles set out in s 16A of the Crimes Act 1914 (Cth) must be taken into account. As to the nature and circumstances of the offence, there is no challenge to the proposition that the offender is culpable and the offending is objectively serious, bearing in mind that he was told by the AOI at the outset of the communications said that he was 14 years old. He was persistent during his contact over 27 days of offending. He introduced sexual matters into his communication with the identity. He made offers to the identity to be his toy boy. He made numerous references to the age difference between he and the AOI and sought to establish a relationship of trust with him and demonstrated an intention to transition from online communications to real life interactions which he put into place.
The fact that the victim was not a real child does not make the offence any less reprehensible as the Court noted in R v Gajjar [2008] VSCA 268 at [56].
The mandatory factors to be taken into account in sentencing an offender include the age and maturity of the victim or intended victim and the number of people involved in the commission of the offence. Clearly general deterrence and specific deterrence are matters to be given prominence in the sentencing process. As I have indicated I have accepted his prospects of rehabilitation are good, given the assessment by both the sentence assessment report and Mr Borenstein of his low risk of re-offending I take account of the requirement to note the objective of rehabilitation when sentencing for a Commonwealth child sexual offence pursuant to s 16A(2AAA) of the Crimes Act 1914 (Cth)
Both the Crown and Mr Ainsworth have focussed the Court's attention on a number of supposedly comparable cases and in particular the Victorian case of R v Gajjar [2008] VSCA 268 and the New South Wales case of R v Fuller [2010] NSWCCA 192. Mr Ainsworth pointed to these cases as appropriate comparators, in particular the sentence which was imposed in Gajjar at [43] was described by the Court as being "squarely within the range of sentence typically imposed for like offences under both Commonwealth and State law."
Gajjar involved a 28 year old man who had engaged in sexually graphic and explicit communications with an undercover operative posing as a 14 year old female. The offending occurred over a period of two days and there was a 25% discount for the plea of guilty. The Court there said at [52]:
"Of course it cannot be said that this offence falls within anything like the worst category of its type. Nor, however, can it be described as anything but a serious example of conduct that is pernicious and difficult to detect. As such, it warrants severe punishment."
As to the cases of Gifford v R [2016] NSWCCA 302, Moore v R [2018] NSWCCA 26 and R v Hizhnikov (2008) 192 A Crim R 69 and Rampley v The Queen [2010] NSWCCA 293 referred to by the Crown there are significant differentiating factors in those cases which make them of very limited value in the sentencing exercise.
In R v Fuller [2010] NSWCCA 192 the Court noted that while the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it.
As the Court said in Fuller at [25] - [26],
"The internet has produced many benefits for the community but has also brought some problems. One of those problems is addressed by s 474.26 of the Commonwealth Criminal Code. The offence is made possible because the internet provides access to communicate with others anonymously. Tragically, experience has shown that it is not uncommon for immature persons, particularly females, to explore the internet and accept communications from adults who are seeking sexual encounters with children. Because a child can access and navigate the internet without the supervision of a responsible adult, the opportunity for a sexual predator to identify a potential victim is significant. If communication is made, the harm to the young person may be considerable, even if sexual activity does not ultimately occur. Of course, the potential for harm will be greater if sexual activity does take place
It is for these reasons that the legislature has made it an offence to use the internet to procure a young person to engage in or submit to sexual activity. It is also apparent that the detection of the offence may be difficult. For this reason the legislature has determined that the law enforcement authorities should be empowered to identify persons who are seeking to communicate in the manner prohibited by the section by creating fictitious identities."
Mr Ainsworth acknowledges the objective seriousness of the offence, and the need of general and specific deterrence to factor significantly in the sentencing exercise. He ultimately submits that a term of fulltime imprisonment equating to the time served, together with a period of supervision under recognisance is the appropriate sentencing outcome. I accept that submission.
The orders that I make are:
1. The offender is convicted of the offence.
2. I impose a sentence of imprisonment of two years and three months commencing 4 November 2020 and expiring 3 February 2023.Pursuant to s 20(1)(b) Crimes Act 1914 (Cth) the offender is to be released after a period 7 months expiring on 3 June 2021, on the condition that the offender enters into a recognisance, self, in the sum of $100, subject to the following conditions:
1. To be of good behaviour for a period of one year and eight months.
2. The offender is to be placed under the supervision and guidance of the Community Corrections Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.
3. The offender is not to travel interstate or overseas without the written permission of the Community Corrections Services.
1. I make forfeiture orders by consent, pursuant to s 23ZD of the Crimes Act 1914 and upon the application for the Director of Public Prosecutions the following items are forfeited to the Commonwealth:
1. One (1) Nokia mobile phone, with memory card (X0004230001); and
2. One (1) HP laptop (X0003300089).
Note - These extempore remarks were revised without access to the court file.
[3]
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Decision last updated: 28 September 2021