District Court New South Wales Medium Neutral Citation: R v Frewin [2021] NSWDC 114 Hearing dates: 2 March 2021 Date of orders: 5 March 2021 Decision date: 05 March 2021 Jurisdiction: Criminal Before: Buscombe DCJ Decision: Overall sentence imposed one of 4 years and 6 months imprisonment with non-parole period of 2 years Catchwords: CRIME — Commonwealth offences — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material CRIME — Commonwealth offences — Child sex offences — Using carriage service to groom person < 16 years for sexual activity Legislation Cited: Criminal Code (Cth) ss 474.27A(1), 474.27(1), 474.17(1), 474.26(1) Cases Cited: R v Pham [2015] HCA 39 Category: Sentence Parties: Director of Public Prosecutions (Crown) Mr Frewin (Offender) Representation: Solicitors: Mr Von Treifeldt (Crown) Mr Boom (Offender) File Number(s): 2020/150396 2020/304246 Publication restriction: Non-publication order re identity of the complainant SENTENCE Introduction 1. The offender stands to be sentenced having pleaded guilty to five offences under the Commonwealth's Criminal Code. The first four offences concerned a young person JH who was 13 years of age at the time of the offences. The fifth offence concerned a police officer posing as an assumed online identity Tahlia Evans who represented that they were 14 years of age. 2. Two of the offences concerning JH are in identical terms in that they are under s 474.27A(1) of the Commonwealth's Criminal Code: that between 1 August 2019 and 30 September 2019 the offender used a carriage service to transmit indecent communication to a person under the age of 16 years. Each of those offences has a maximum penalty of seven years imprisonment. 3. The third offence concerning JH is under s 474.27(1) of the Commonwealth's Criminal Code, and is an offence that between 20 June 2019 and 16 August 2019 the offender used a carriage service to transmit a communication to the recipient JH, a person under 16 years, with the intention of making it easier to procure that person to engage in sexual activity with himself. That offence has a maximum penalty of 12 years imprisonment. 4. The fourth offence concerning JH is under s 474.17(1) of the Commonwealth's Criminal Code and is an offence that between 1 August 2019 and 31 August 2019 the offender used a carriage service in a way that reasonable persons would regard as menacing. That offence carries a maximum penalty of three years imprisonment. 5. The fifth and final offence for which the offender stands to be sentenced concerns an assumed online identity and is an offence that on or about 25 November 2019 the offender used a carriage service to transmit a communication to a recipient that he believed was under 16 years of age with the intention of procuring the recipient to engage in sexual activity with himself. That offence is an offence under s 474.26(1) of the Commonwealth's Criminal Code, it has a maximum penalty of 15 years imprisonment. 6. These are, as I say, Commonwealth offences and I am required to sentence the offender in accordance with pt 1B of the Commonwealth's Crimes Act, with particular regard to s 16A(1) and (2). The Facts 1. The facts upon which the offender are to be sentenced are agreed and the following is taken from the agreed facts. 2. At the relevant time the offender used two Facebook accounts called Moruya Mac and David Roots. He proceeded between June and September 2019 to contact JH, the young person, who was 13 years of age via Facebook Messenger, text message and telephone. 3. On 25 November 2019 he had a chat conversation using Facebook Messenger with an assumed online identity, Talia Evans, whom he believed was 14 years of age. 4. In terms of the specific facts in relation to each offence, I do not propose to read a great deal of detail of the particular messages that ground each of the offences onto the record. The reason is that they are extremely explicit and I do not propose in those circumstances to read great slabs of the messages. 5. In terms of the first offence concerning JH, the young person was 13 years of age. He sent her one text message on 13 August 2019. The message contained an offer of illicit drugs and a reference to explicit sexual activity. The young person felt disgusted by the message and her father took screenshots of it. As I say I do not propose to read in detail the obscene nature of the text onto the record. The young person did not reply to the message. 6. On or about 29 August 2019 the offender sent two further text messages to the young person. These ground the second charge in relation to JH. The messages were sexually explicit in nature and included offers of illicit drugs. One of the messages commenced "Hello gorgeous, how are things?". There are references to pornographic videos in the messages as well. Again, for the same reason I do not propose to read onto the record much of the content of the messages which ground that charge. There is reference to terms like "man whore David", "sexual servant", "slave for anything and everything". Clearly highly indecent. 7. In relation to the third charge, using a carriage service with the intention of making it easier to procure the young person for sexual activity, the facts indicate that this involved the use of the name Moruya Mac. The young person had a public Facebook profile displaying her age and profile picture of her with a school uniform. 8. During the evening of on or about 20 June 2019, that is before the text messages which are the subject of the first and second count, the offender sent about ten to 15 messages using Facebook Messenger to the young person. He asked the young person questions about her age, where she lived, her appearance and what she was doing that night. The young person did not reply to those messages and those messages were not sexually explicit in nature. 9. The offender then attempted to call the young person via the voice call feature of Facebook Messenger about ten times. He accompanied these voice calls with messages saying, "Answer the phone". The young person did not answer any of the voice calls or respond to the messages. The young person's father answered one of those voice calls. He told the offender that his daughter was 13 years of age and to stop contacting her. The offender apologised and said he would block the young person's number. 10. On or about 16 August 2019 shortly after the young person received the text message which relates to the first charge, the father of the young person used her phone to call the offender putting the phone on loudspeaker in the presence of the young person. The offender and the young person had a particular exchange. The young person asked the offender, "How did you get my number?", he responded, "I either got it off an adult dating site or off Facebook". The young person said, "You couldn't have got it off an adult dating site because I'm only 13", he responded, "Would you like to come down here tonight?", the young person said, "No thanks, I won't be coming down there", and hung up the telephone. 11. In relation to the fourth offence, using a carriage service to menace, on or about 18 August 2019, so after the messages on 16 August 2019, the offender made a phone call to the young person who answered the call. The offender said that if she was to involve the police bad things would happen because he knew everything about her. The young person said, "Yeah, sure". The offender said that he knew that her birthday is [redacted], that she goes to [redacted] High School, that she's in year 8, she catches a bus numbered 16 and she lived in one of the local areas. The young person hung up the phone feeling, understandably, scared because the offender apparently knew that information about her. 12. In terms of the offence concerning the online identity utilised by the police the offender operated, as I say, a Facebook account under the name of David Roots. On 27 September 2019 New South Wales Police accessed the Facebook profile of the assumed online identity of a 14 year old female who appeared as Talia Evans. On 27 September 2019 that online identity accepted a Facebook friend request from the offender. The entity and the offender had the following conversation with the offender commencing it by saying "Hello gorgeous", and quickly asking, "Where about in Sydney do you live?", and saying, "When I travel to Sydney next we could meet up with each other". 13. The police who were conducting the relevant conversation advised the offender early in the conversation that Talia was 14 years of age and he acknowledged that she was 14 years of age several times throughout the conversation. During the conversation the offender invited and encouraged the online entity to engage in sexual activity in a hotel room at Parramatta. He also sought to induce that to occur by offering ice or ecstasy to enhance the sexual experience. I am not going to read onto the record the excerpts of the conversation which are in the agreed facts, suffice to say it is extremely indecent and sexually provocative. 14. During the conversation the offender sent the entity five images of pornography that he was watching at the time, two of them could clearly be distinguished as pornography. He also sent the entity during the conversation an image of his penis and repeatedly asked the entity to send him naked photographs. 15. On about 2 January 2020 he sent further messages to the entity. One of them was, "You're only 14, I'm 47 and my corrupted naughty ways aren't fit or suitable for any girls under 18". I do not propose to read any more of the messages onto the record. 16. At about 11am on 20 May 2020 police attended his home in Moruya and arrested him. They executed a search warrant. He participated in a record of interview with the police. He made some admissions which are set out in the statement of facts which I do not propose to read onto the record, both in relation to the conversation with the young person JH and with the online entity. Objective seriousness 1. Turning then to my assessment of the objective seriousness of the offences. 2. In relation to the first four offences that I have to sentence the offender for there are some common factors concerning each offence. One child was concerned and she was some 13 years of age. The conduct alleged in the counts covered an approximate three month period, although the number of messages was somewhat limited. The first charge under s 474.27A(1) of the Code concerning JH involves only one indecent text message sent on 16 August 2019 and occurred after some of the conduct relied upon for the charge concerning making it easier to procure the person for sexual activity. There was an implicit offer of illicit drugs in that message and a reference to sexual activity. The child JH did not respond to it. 3. The second charge under s 474.27A(1) of the Code concerning JH involves two messages sent on or about 29 August 2019 and are sexually explicit and include offers of illicit drugs. Those messages were also sent after some of the conduct relied upon for the third charge concerning JH, being the charge of making it easier to procure the person for sexual activity. 4. The messages that support the first and second charges concerning JH were sent after the offender had been told on 20 June 2019 by JH's father that JH was only 13 years of age and to stop contacting her. 5. The third charge concerning JH is the offence under s 474.27(1) of the Code of transmitting a communication with the intention of making it easier to procure the child for sexual activity. The facts in relation to that offence refer to conduct on 20 June 2019 and on 16 August 2019. 6. A number of messages using Facebook Messenger were sent to the child on 20 June 2019 asking her personal questions. None of those messages were sexually explicit in nature, none of the messages were replied to by the child. The offender also made a number of unsuccessful voice calls via the voice call feature on Facebook and none of those calls were answered by the child and she did not respond to related messages. 7. One of the calls was answered by the child's father who told the offender that his daughter was only 13 and to stop calling her. According to the facts, the offender apologised and said he would block the child's number. 8. On 16 August 2019 shortly after the message the subject of the first charge was sent the offender called the child and the conversation set out in the facts was had with the child's father listening. I withdraw that, it was the child's father who made the call. 9. The messages in charges 1 and 2 and the call on 16 August 2019 all occurred after the offender was told by the child's father her age and not to contact her again. In my opinion that fact adds to the seriousness of each of the offences. 10. The offender gave evidence as to why he contacted the child after being told not to by the father. He said in evidence that he had numbers on a piece of paper and as I understood his evidence simply dialled it by mistake. I do note that there was also some two months between 20 June and 16 August 2019, but I did not find the offender's explanation particularly plausible. This is especially as he had told the child's father he would block the child's number. 11. The first three offences against JH are particularly serious having regard to the content of the messages in particular in the first two charges which are very sexually explicit and confronting. I note the Crown's concession that the messages were not specifically sent to JH. I consider charges 1 and 2, given the limited number of messages to fall below a notional mid-range of objective seriousness. The content of the calls and messages that relate to charge 3 are somewhat limited, although it really needs to be seen in the context of the other two charges. I assess the objective seriousness of that offence as being below a notional mid-range offence. 12. The menacing phone call, the subject of the fourth offence involving JH is particularly serious, and I have no doubt that the 13 year old child would have been very scared having received that call. I assess the objective seriousness of that call as falling just below a notional mid-range offence. 13. I of course have had regard to the fact that a real child was the subject of charges 1 to 4. The facts of the fifth charge concerning the online entity are particularly serious. I note the age of the entity was 14 years, there was an invitation to engage in sexual activity and illegal drug taking. The offender sent pornographic images during the exchanges and requests to be provided with naked images of the other party. I assess the objective seriousness of that offence as falling slightly below the mid-range. The fact that a real child was not the subject of this count does not mitigate the offence. 14. I have had regard to the content of the victim impact statement by JH. Clearly the offender's conduct was an ordeal for the young person that has left a mark on her. The offender's subjective case 1. Turning then to the offender's subjective case, his date of birth is 26 March 1972, so he is currently 48 years of age. He has something of a criminal history, however there are no offences of a sexual nature on his record. The offences on his record include offences of stalk or intimidate, breaches of apprehended domestic violence orders, possession of unregistered firearms and possession of prohibited drug. This will not be his first time in custody, although it will be his longest. His most recent prior offences were in 2016. His record means that he is entitled to little by way of leniency. Medical report and relevant evidence by the offender 1. There was tendered on the offender's behalf a report from Moruya General Medical Practice dated 11 November 2020 and which attached to it a report by the Spinal Outreach Service and the offender gave evidence. Family background 1. The evidence establishes that he is currently supported by his mother and sister who were present in court when I heard the sentence proceedings. He also has young grandchildren, a boy and a girl. His hope is that when he returns to the community he will return to his home and see his elderly mother and his dog which is currently being looked after by his sister. Education and employment history 1. In the past, in terms of his employment, he has worked as a mechanic. However he currently suffers from a number of medical issues which mean that he cannot, and it would seem he will never, work again. Medical issues 1. The reports before me establish that in 2005 he sustained a spinal cord injury which resulted in the offender becoming an incomplete paraplegic. This has resulted in him having significant issues in relation to the evacuation of his bowels and bladder. He is currently required to self-catheterise to empty his bladder three times a day and to manually evacuate his bowels with a surgical glove due to his irreversible spinal cord injury. He also wears an ankle/foot orthosis to prevent foot drop when walking as without it he would be at risk of falls. The medical reports before me indicate that due to him having to manually evacuate his bladder and bowels he has a higher risk of infection. 2. The offender gave evidence concerning his time in custody to date. He is currently held in the Long Bay Prison Hospital having been moved there recently to see a specialist in relation to his health. There is some suggestion he may have surgery at some point to give him a colostomy bag, although the offender appears not keen to have it. 3. He confirms in his evidence that he is currently prone to urinary tract infections. His evidence was that while he has been held in the general prison population he has been provided with a medical one-out cell given his condition such that he is not required to share a cell. He also gave evidence that he considered that he had been receiving adequate treatment while in custody. 4. While the offender gave evidence that he was being appropriately treated in prison for his health issues, given the serious nature of them and what he is required to do to evacuate his bowels and bladder several times a day, and that he is still held within the general prison population, I consider that his time in custody will be considerably more onerous than it would be for persons who do not have his conditions. That factor has caused me to significantly moderate the sentence I otherwise would have imposed. Sexual interest in children 1. The offender asserted in his evidence he is not sexually attracted to children, although the conduct he has engaged in suggests otherwise. I have no psychological assessment of the offender so his risk of offending against children again is very difficult to determine on this sentence. Substance use 1. While the text messages he sent in the offences and his criminal record suggest he may have had an issue with illicit substances in the past and indeed at the time of the offences, I heard no evidence about his drug use history. There is reference in one of the medical reports to him in the past using marijuana for pain relief. Attitude to the offence 1. He gave evidence that he was remorseful and ashamed of his offending, and I note his earlier plea of guilty. His apology to the victim while giving evidence appeared to me to be genuine. I find that he has some genuine remorse in relation to the offences. The future and risk of re-offending 1. Given his past criminal record and the fact I have no professional assessment concerning his risk of reoffending in the future I can only find that his prospects for rehabilitation are no better than guarded. Imposition of sentence 1. The pleas of guilty were entered in the Local Court and I will allow him a 25% discount for the utilitarian value of his plea. The offender has been in custody since his arrest on 20 May 2020, and the offender's sentence will be backdated to that date to take account of pre-sentence custody. 2. The State aggregate sentencing provisions are able to be applied when sentencing an offender for Commonwealth offences (see R v Pham [2015] HCA 39 at [21]). I propose to utilise those provisions here. If I had not done so my approach to accumulation and concurrency would have been as follows; in relation to the offences concerning JH, given the one victim and some overlap in the conduct, in particular in relation to the first three offences, I consider that it would be appropriate to have a considerable degree of concurrency in the sentences. As the offence concerning the police online entity was distinct from the offences concerning JH, there should be a degree of accumulation. 3. General deterrence must always feature strongly when sentencing for this type of offending which is directed towards young adolescent children. Children should be free to grow up through adolescence and into adulthood without being preyed upon by predators like this offender. All right-minded people in our community find offences such as these abhorrent. They are often difficult to detect and are becoming very, very prevalent. The sentence that is imposed must send the message to the community that such conduct will result in stern punishment. 4. But for the offender's medical conditions that I referred to earlier, a far more severe sentence and non‑parole period would be imposed. 5. I have considered the authorities provided to me by both legal representatives in arriving at the sentence to be imposed. They do not provide a range of sentence and it must always be remembered that sentencing remains individualistic and founded upon instinctive synthesis. The maximum penalty has been taken into account as legislative guideposts. 6. I formally convict the offender of the five offences to which he has pleaded guilty. I will firstly record the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence I have had regard to all of the objective and subjective factors I referred to earlier. The sentences the offender Mr Frewin will hear me first announce are what are called indicative sentences. He will then hear me announce an aggregate sentence which is the sentence and non-parole period that he will serve. It is not arrived at by simply by adding up all of the indicative sentences. When announcing the aggregate sentence I will tell him the date it starts from, the date it ends and the date when he is first eligible for parole. 7. The indicative sentence on the first offence concerning JH under s 474.27A(1) of the Criminal Code being sequence 1, 18 months' imprisonment. The indicative sentence on the second offence concerning JH under s 474.27A(1) of the Criminal Code being sequence 2, 18 months' imprisonment. The indicative sentence on the offence under s 474.27(1) of the Criminal Code concerning JH, sequence 3, two years' imprisonment. The indicative sentence on the offence under s 474.17(1) of the Criminal Code concerning JH, 12 months' imprisonment. The indicative sentence under s 474.26(1) of the Criminal Code concerning the online entity, sequence 5, three years' imprisonment. 8. I impose an aggregate sentence of four and a half years' imprisonment with an aggregate non‑parole period of two years. It commences on 20 May 2020 and expires on 19 November 2024. The non‑parole period expires on 19 May 2022. The earliest date you are eligible to be released to parole is the date of the expiry of the non‑parole period which is 19 May 2022. Whether you are in fact released to parole that day is a matter for the Commonwealth Attorney General who will no doubt take account of your behaviour in prison in determining whether you are released then or on another date. 9. So the aggregate sentence is four and a half years with an aggregate non‑parole period of two years, commences 20 May 2020, the sentence expires on 19 November 2024, the non‑parole period on 19 May 2022. Orders 1. The offender is convicted of the offences to which he pleaded guilty 2. Impose an aggregate sentence of 4 years and 6 months imprisonment with a non-parole period of 2 years. The sentence commences on 20 May 2020 and expires on 19 November 2024. The non-parole period expires on 19 May 2022. ********** Amendments 09 April 2021 - Redactions to comply with non-publication order of complainant's identity 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: 09 April 2021