District Court New South Wales Medium Neutral Citation: R v NF [2020] NSWDC 352 Decision date: 30 January 2020 Jurisdiction: Criminal Before: Payne DCJ Decision: Pursuant to section 20(1)(b) Crimes Act 1914, sentenced to a term of imprisonment for 16 months, to be released forthwith upon entering into a recognizance, self in the amount of $500, on the following conditions: 1. To be of good behaviour for a period of 2 years; 2. Continue to receive psychological counselling; 3. Take any medication prescribed by your General Practitioner, as directed by your General Practitioner. Catchwords: SENTENCING – child sex offences – using a carriage service to transmit indecent material to a person under the age of 16 years, Criminal Code 1995 (Cth), s 474.27A(1) Legislation Cited: Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Category: Sentence Parties: Regina (Crown) NF (Offender) Representation: Counsel: G Bashir SC (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Lawyers Corp Pty Limited (Offender) File Number(s): 2019/42244 Judgment 1. NF comes before the Court in respect of one offence. That offence is contrary to s 474.27A(1) of the Criminal Code 1995 (Cth). The offence in a shortened way can be described as use carriage service to transmit indecent material to a person under 16 years of age. The maximum penalty is imprisonment for seven years. The matter proceeded by way of a Court Attendance Notice. I convict him of this offence. 2. He pleaded guilty at the earliest opportunity and in addition, the original Court Attendance Notice contained a significant number of errors and had to be amended. He did though consent to those amendments and then pleaded guilty. The relevant period of time is between about 15 October 2018 and 4 February 2019. The amended Court Attendance Notice is that he, between 15 October 2018 and about 4 February 2019 at Caringbah South in the State of New South Wales, being over the age of 18 years, did use a carriage service to transmit communication to another person, which included material that was indecent, and the recipient was someone who he believed was under 16 years of age. This matter is of some relevance in relation to him facilitating the course of justice. I accept this is the position. 3. There was also a circumstance where at first the matter was going to be dealt with, it was thought, summarily. A report has been obtained from Dr Allnutt, psychiatrist, indicating that the prisoner was eligible for consideration under s 32 of the New South Wales Mental Health (Forensic Provisions) Act 1990. There is indeed a different provision for the Commonwealth, that being s 20B(2) of the Crimes Act 1914. That was never put to the Local Court because there was a change in representation by the Crown and it was determined by the Crown that the matter be dealt with, it being an indictable matter, in the District Court. The defence say, and it is noted in an affidavit, that the progress of the matter was one that added to their client's anxiety. 4. There was a reference to an undertaking in the affidavit of Mr Houda dated 29 January 2020, in para 8, that there was an agreement with the CDPP that the CDPP would not oppose or argue against the defence submission that a non-custodial sentence would be appropriate in the circumstances of this case. That took place on 15 August 2019 and on 20 August 2019 there was an email from the CDPP advising there had been a change of prosecutor in the case and the new prosecutor was not bound by that representation. 5. I give some, although limited, weight to the effect on the prisoner in respect of the progress of the matter. I am not though suggesting in any way that the Commonwealth Crown have acted improperly. 6. I do accept he is genuinely remorseful and contrite for his offending behaviour and he has taken responsibility for his behaviour, and understands the damage that he would have inflicted on the 14 year old girl, had the person actually been a 14 year old girl. In the Sentencing Assessment Report dated 29 January 2020, it said NF took and understood the seriousness of the offence for which he is before the Court and the serious impact his actions would have had on the young person he believed he was communicating with. There are also references in the testimonial material that are part of the defence bundle, and in particular the psychological report of John Machlin dated 16 December 2019: "Attitude and Reflection [NF] accepts responsibility for his offence, making no attempt to minimise his actions. He related his understanding of wrong-doing in view of the age of the victim, or rather the presumed identity. He related that this behaviour was contrary to his ethics. He said although he had no desire to cause harm to anybody he understood his behaviour was harmful." Then there is a reference in the further forensic psychology report of Jenny Howell, page 5: "[NF] is ashamed of his behaviour and experiences an intense level of guilt and remorse for the harm his behaviour caused his partner and to their relationship. He accepts sexual behaviour with children is immoral and he has stated he is grateful the AOI was a police officer and not a real child." Then further: "He understands engaging in sexual behaviour with children is harmful and morally wrong and there is no evidence to conclude he holds attitudes to condone or support sexual violence or child sexual abuse." Factual Circumstances of the Offending 1. The factual circumstances of the offence are found in an agreed facts document. Suffice to say in summary, conversations were undertaken over the internet between the prisoner and the assumed identity. Two photographs were sent. One was a view of the prisoner's back. The other one was a view of him lying down on his back. The first was face down and the second face up and it showed his abdomen and part of his penis through the opening in his underpants. The entirety of that document is as follows: "1. The accused in this matter is NF ('the offender'), November 1989. The Offending Conduct 2. On 15 October 2018, investigators from the Child Exploitation Unit entered a social networking site using an assumed online identity ('AOI') of a 14 year old female. 3. Between about 7.30pm and about 8.18pm, the offender, utilising the screen username of 'Nick_syd' sent a private message to the AOI. Investigators informed the offender that they were 1 14 year old girl, to which he acknowledged. The offender stated, '28 m syd u'. AOI stated '14 f syd'. 4. During the conversation, the AOI stated, '…never done this before', to which the offender stated, 'well this site is mostly for sex stuff'. When asked, 'What do u look like?', the AOI replied, 'look like a 14 year old girl, silly'. Subsequently, the offender stated, 'I love cute girls' and asked, 'Do u like older men?' 5. Subsequently, the AOI asked, 'what did u mean by sex stuff?' The offender explained the site ['trading pics', 'role playing', 'talking dirty', or 'meeting up'] and then asked, 'U don't have any pics of u?' 6. At about 8.18pm, the conversation was then moved to a popular social media platform, where the offender had the user profile 'nicolas f'. The offender stated, 'I can take a pic of me now if you want', and 'all my old ones are probably too dirty for u hehe', and then sent the following image at 8.26pm: (a) A photo depicting a nude male [from head to feet] lying face down on a bed and showing his back and buttocks, with a large distinctive tattoo word across his shoulders. (b) AOI states, 'no ones ever sent me a pic like that before'. (c) The offender stated, 'Do u like". (d) AOI stated, 'maybe :)'. (e) The offender stated, 'Would u like to see more'. (f) AOI stated, 'up to u'. 7. The offender then sent the following image at 8.32pm: (a) A photo depicting a nude male [from chest to feet] lying face up on a bed and showing his abdomen and part of his penis through an opening in his underpants. The offender stated, 'If u don't like or not into this then let me know'. 8. Subsequently, the offender asked the AOI for a picture of herself, stating, 'Do u have any nice pics of u', and then stated, 'Sorry but I'm kinda horny'. 9. The offender and the AOI ended by stating that they would 'chat later'. 10. On 23 October 2018 at about 8.36pm, the offender and the AOI engaged in conversation via the same social media platform. During this conversation, the offender was reminded that the AOI was 14 years old. 11. Subsequently, the AOI asked 'what u up to?'. The offender replied, 'just finished in the shower and lying down chatting and been a lil naughty', 'ribbing a lil', 'my cock'. The AOI replied, 'omg soz', to which the offender replied, 'Y are u sorry'. The AOI replied, 'well you probs think im like a silly 14yo kid now lol'. 12. Subsequently, the offender asked, 'So did you find any other nice pic of u?' The AOI replied, 'not really I don't like pics of me'. NF asked, 'Try taking one now', and subsequently asked for a 'full body pic'. A picture was sent by the AOI. The offender replied, 'hot'. The AOI then asked, 'so what else u wanna chat about', to which the offender replied, 'I don't know how great my convos will be tonight, I'm thinking only about one thing atm', 'sex sorry', 'because u don't know about that stuff', 'I'm just horny and need to cum'. The AOI stated, 'how will u do it', in response to which the offender stated, 'By rubbing it hard'. 13. Subsequently, the offender asked 'what would you do if u had one in front of u?' The AOI stated, 'I wouldn't know what', 'what would I be supposed to do?', to which the offender replied, 'Rub it', 'or u can just use ur mouth'. Subsequently, the offender stated, 'I wish u could help me cum'. 14. The offender then sent an image of his chest and abdomen. There is a large distinct tattoo on the chest of the male in the image. 15. During the conversation on 23 October 2018, the Internet Protocol and port address was captured. It was identified that the conversation held on 23 October 2018 was created over a mobile phone with contact number xxxx xxx 620. This mobile phone has been registered to the offender since 2012. 16. On 4 February 2019 at about 4.58pm, the offender and the AOI engaged in conversation via the same social media platform. During this conversation, the offender stated, 'I'm still waiting on a nice pic from u lol', and when reminded that one had been sent, stated, 'I mean a sexy pic J', 'because I think ur hot'. Subsequently, the offender asked, 'are u still wearing ur school uniform?' The conversation continued and the offender asked for a 'pic trade'. Detection, Arrest and Execution of Search Warrant 17. On Tuesday 5 February 2019, police applied for, and were granted, a Commonwealth Search Warrant for [address omitted], Caringbah South NSW 2229. 18. On 7 February 2019 at about 11.00am, police executed the search warrant over the offender's premises and spoke to his partner. Mobile phones, an iPad and thumb drives were seized at this warrant. At about 12.50pm, the offender returned home and was arrested and cautioned. When asked, the offender indicated that he had two mobile phones in his vehicle - his mobile phone [xxxx xxx 620, which was used to commit the offence] and a work mobile phone. 19. The offender was then taken to Sutherland Police Station where he was read his rights as per Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. 20. The offender participated in an electronically recorded interview where he made admissions to being the author of the chats between himself and the assumed online identity, and stated the chats were all fantasy. The offender admitted owning the mobile phone with phone number xxxx xxx 620 and that the images sent to the assumed online identity were of himself. The offender stated the following: (a) That he lived at the [address omitted] premises with his girlfriend. (b) That he worked as a supervisor at an earthworks company. (c) That his personal mobile phone number was xxxx xxx 620 and that he had had that for 'quite a while'. (d) That the sites were 'role play' 'so obviously you don't know who you're talking to'. (e) That he visited those sites 'every now and then'. (f) That his site username was 'Nick_syd'. (g) That he reads and writes English, and has no issues with reading. (h) Stated, when shown transcript of the AOI stating the age of 14, 'obviously if you want to have a role play you don't discuss that between the two people, um, even till the end basically they almost, if you want to say, keeping the character'. (i) That the first image sent [on 15 October 2018] was of him. (j) That the second image sent [on 15 October 2018] was of him. (k) That he was the author of the chats. (j) When asked, 'Can you identify anywhere in this chat the person states they're anything other than a 14 year old girl?', the offender stated, 'No'. Antecedents 21. As at October 2018, the offender was 28 years of age. 22. The offender works as a manager for a demolition company, and resides with his partner at [address omitted], South Caringbah, New South Wales. He has no known dependents. 23. The offender was unrelated criminal antecedents." 1. The gravamen of the offence, as Ms Bashir says in her careful submissions, was on both 15 October 2018 and 23 October 2018 when indecent material was sent. So the police sent a photograph of another person purporting to be a 14 year old on 23 October 2018. The prisoner believed that the person that he was communicating with was 14 years old. Clearly this is a serious offence. This is reflected in the type of behaviour that is criminalised by the offence and the maximum penalty. 2. Ms Bashir says correctly the Court must not impose a sentence of imprisonment unless satisfied, having considered all other available sentences, that no other sentence is appropriate in all the circumstances of this case. It is relevant to note at this time that intensive correction orders are not available in this instance, as it is a prescribed sexual offence. Ms Bashir notes that the range of conduct encompassed by the section includes all manner of indecent communication. The submission is that the offence is in the low range of offending. The Crown submitted the offending sits at the mid-range. 3. The three factors, the nature of the communication, second, the period of time of the offending conduct, said to be three months and, third, the use of two platforms. I take those submissions into account and give them weight. 4. In my view, the offence is at the top of the lower range, just under the mid-range. I do not accept it is in the low range, nor do I accept it is in the middle range. 5. The offender at the time was aged 28 years, turning 29 years. 6. Ms Bashir then considers the moral culpability and his mental health. In my view, his mental health conditions are such that there can be a finding of somewhat reduced moral culpability. 7. The Court was assisted in the bundle of material provided by the defence, in particular the psychological report of John Machlin, 16 December 2019, psychological report by Jenny Howell of 13 January 2020 and the report of Dr Allnutt annexed to the solicitor's affidavit. That report is dated 6 May 2019. 8. General deterrence must be a significant feature of this sentencing exercise and in my view can only minimally be mitigated by his mental state at the time. The community's view of this sort of offending is that it is abhorrent. There is a wealth of cases that have been considered by the Court of Criminal Appeal that emphasise the requirement for courts to do what can be done to protect children from any form of sexual exploitation. 9. He has a prior conviction but that is contrary to motor vehicle requirements and they go back to 2009. Accordingly I am prepared to sentence him on the basis that he is a person of good character. There are a considerable number of character references and I have read each of them. He has got a very good work history and is still supported by his current employer. He also has a report of his general manager since 2015. 10. In the Crown's careful written submissions, the Crown brings to attention, which is certainly the position, that he must be sentenced in accordance with Pt 1B of the Crimes Act in addition to any other relevant factors. The Court must specifically take into account the matters listed in s 16A(2) of the Crimes Act that are relevant and known to the Court. The Crown's submission was that a custodial sentence is the only appropriate penalty, having regard to the nature and objective seriousness of this offence, and the paramount need for general deterrence and denunciation, but stated that it was a matter for the Court the form of that custodial sentence. The Crown did not seek to be heard on the imposition of a sentence of imprisonment that would be suspended forthwith pursuant to s 20(1)(b). 11. I have already referred to general deterrence, the circumstances of the offence, I have referred to his character, age, antecedents and background. Just in relation to his background, I have referred to his work history. He comes from a supportive family. As a result of this behaviour he has lost a relationship with his then partner. She did, though, also provide a reference. 12. I take into account the fact that he has taken steps towards rehabilitation. He has been attending his general practitioner and has also, with the Wellbeing Clinic, in a report dated 29 January 2020, attended on eleven occasions from 11 April 2019 to 16 January 2020 and he will continue with that treatment. 13. In my view he has got good prospects of rehabilitation. Whether he will or will not re-offend in the future, this in my view is a very difficult matter to determine. There is material in the papers in respect of this. I do not have a view as to whether he will or will not re-offend. In my view that matter is neutral. I am prepared to say though, on the basis of all the material provided, it is unlikely that he will re-offend. 14. I agree with the Crown that what the Crown referred to as the s 17A threshold has been passed. I have taken into account all relevant sentencing factors, those referred to in s 16A, in deciding whether to impose a term of imprisonment and if so the length of the term. 15. In my view, there should be a recognizance release order in this case and in determining my view that he should be released forthwith under s 20(1)(b) the same factors as those applicable to him, that he should have fixing of the term of imprisonment (notably those referred to in s 16A). 16. I return briefly to what I was saying about his treatment. There must be some element of specific deterrence in the sentence to be imposed. But in this case there has been the charging, there has been the way the matter has proceeded, and I have made reference to that. There is also the treatment that he has obtained, that I have made specific reference to. And in my view this has ameliorated the requirement for specific deterrence in this case. I must remember too that this was repeated behaviour but over a short period of time and is certainly isolated in the context of his general behaviour and character and I am firmly of the view what he did was out of character. Further, he is medicated and he is being treated for his depression, which I accept was one of the triggers for the offending behaviour. 17. I have already said he is to get the benefit of facilitating the course of justice and even though it is not necessary, a court can indicate the reduction for utilitarian considerations only, and in this case in my view they should be 25 percent. Sentence 1. Accordingly, the sentence I would have imposed prior to 25 percent reduction only for the utilitarian element, is 22 months, reduced by 25 percent, that is sixteen and a half months, rounded to sixteen months. 2. The offender adheres to the plea of guilty entered on 17 September 2019. 3. The offender is convicted. 4. In relation to the offence contrary to s 474.27A(1), in accordance with s 20(1)(b) Crimes Act, sentenced to a term of imprisonment of one year and four months to date from today, 30 January 2020, and expiring on 29 May 2021. He is released forthwith, upon entering into a recognizance, self in the amount of $500, with the following conditions: (1) To be of good behaviour for a period of two years from today, expiring on 29 January 2022; (2) Continue to receive psychological counselling; (3) Take any medication prescribed by your general practitioner, as directed by your general practitioner. ********** 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: 06 July 2020