District Court New South Wales Medium Neutral Citation: R v Darke [2021] NSWDC 377 Hearing dates: 12 October 2020; 27 November 2020, 11 December 2020 Decision date: 15 February 2021 Jurisdiction: Criminal Before: M Adams ADCJ Decision: The offender is sentenced to a period of imprisonment for a period of 3 years, to be released after serving 2 years. The Offender would therefore be released after serving 2 years on a recognisance pursuant to s.20(1)(b) of the Crimes Act, subject to the following conditions: 1. An amount of security of $1, without sureties; and 2. The offender is to be of good behaviour for a period of 3 years upon his release Catchwords: CRIMINAL LAW- Sentence – 16BA schedule – Attempt to procure a child to engage in sexual activity with another person outside Australia – Use carriage service to solicit and transmit child pornography material – Child Internet Exploitation Unit – Persistent Neurocognitive Disorder [Acquired Brain Injury] – Persistent Depressive Disorder – Alcohol Use Disorder – Personality Disorder – Offender kept in strict protection Legislation Cited: Criminal Code (Cth) Criminal Code of Canada Crimes Act 1914 (Cth), Category: Sentence Parties: The Crown Jason David Darke Representation: Counsel: W. Fitzsimmons – The Crown N. Mikhaiel – The offender Solicitors: Director of Public Prosecutions (Cth) File Number(s): 2018/42703 Publication restriction: There is to be no publication of the name of the complainant or any material which may tend to identify the complainant Judgment Introduction 1. The offender is before the Court for sentence for the offence, in substance, of attempting to procure a child to engage in sexual activity with another person outside Australia, contrary to s 272.14(1) of the Criminal Code (Cth), for which the penalty is a maximum term of 15 years imprisonment. He seeks to have taken into account (by way of a Schedule under s 16BA) two other (connected) offences, of using a carriage service to solicit and transmit child pornography material, contrary to s 474.19(1)(a)(iii) and (iv), for each of which the penalty is also a maximum term of 15 years. These offences occurred between 5 August 2016 and 11 September 2016. 2. The offender was arrested on 7 February 2018 and granted bail on 10 September 2019, but he remained in custody until 14 October 2019. On 19 February 2020, bail was revoked. He has been in custody since then. 3. The offender was committed for trial on 26 June 2019 and his trial listed to commence on 10 February 2020 in the District Court. A plea of guilty was entered to the index offence on 11 February 2020. Earlier negotiations had taken place between prosecution and defence in which the offender had agreed to plead guilty to the two Schedule offences in full satisfaction of the prosecution. This was rejected. It is submitted, in substance, that there was a real legal issue to be determined in relation to the index offence, namely whether the conduct engaged in needed to be contact directly with the child as distinct from another person such as (as here) the mother and this explained the defence approach. For myself, I think it is clear beyond argument that subsec 272.14 of the Criminal Code (Cth) covers the present circumstances but, at all events, I do not see how this is relevant to the issue of the utilitarian discount that is applicable on an early plea. The fact is that the plea was entered on 12 February 2020 on the day following the listed trial date. In favour of the offender, it should be noted that it had been agreed between the parties that civilian witnesses would not be required and the trial could proceed by way of a single police witness, namely, the officer in charge. It is submitted that this avoided the necessity for calling evidence from Canadian residents including, in particular, the mother. I find it difficult to understand why any Canadian residents would be required by the Crown, although it may be that some aspects of the verbal exchanges in which video material was shown might have been thought to be relevant plus other exchanges not electronically available. The assessment of the utility of a plea of guilty is not a matter for nice calculation. Rather a practical approach is called for. I consider that the appropriate discount is 10%. Facts 1. In September 2017, officers with the Child Internet Exploitation Unit of the New South Wales Police commenced an investigation into certain activities of the offender. He was arrested on 7 February 2018 and his premises searched. He participated in a lengthy recorded interview with police and made the following admissions – 1. In 2016, he had a mobile phone and an account with Telstra. He also had a laptop computer. He accessed the internet using wi-fi, which at the time was registered in the name of his landlord. 2. He was the creator and sole user of a Facebook account and used his mobile phone and the laptop to access it. He also used Facebook Messenger through an application on his telephone. 3. About 2014-15, he had engaged in conversations via Facebook Messenger and on video-chat with a woman (the mother) from Canada whom he had met through a mutual friend. She had a daughter about nine or 10 years of age. He spoke with the mother about sexual things. 4. The offender spoke to the daughter at one time on a video call, at first denying but ultimately admitting that he was aroused by this conversation and was probably masturbating when it was taking place. (This was not seen by the child and the conversation itself was innocuous.) 5. The offender could not remember if he requested the mother to provide images of a sexual nature of her daughter but he thought he may have received a photograph depicting the daughter with her head on her mother's naked breast. He believes that the mother might have suggested it and he might have cooperated. 6. The offender agreed that he was sexually aroused by his chats and constantly "closed my eyes and pictured things". 7. He had requested, for reasons of sexual gratification, to see the daughter naked. He knew that she was 11 or 12 years of age. 8. He had asked the mother to show him her daughter's vagina, in the context of the mother having been largely compliant so far and expecting that she might agree. 9. He had verbally adopted a coaching role, and the mother verbally adopted a student role with regards to sexual experience. He agreed that part of the coaching involved telling the mother how to sexually engage with her daughter. 10. The offender engaged in a video-chat with the mother during which the mother showed him her sleeping daughter's naked behind. He found this sexually arousing. 11. The offender discussed sexual activity between himself, the mother and the daughter. 12. Despite his discussions with the mother about this, the offender never booked flights to travel to Canada although he agreed that he may have met up with her if he did go to Canada. He maintained that he would not have engaged in sexual activity if he had met the daughter in person. 13. The offender denied being sexually attracted to children. 1. The mother told Canadian authorities that it was the child who had initiated the sucking on her breast about which, she said, the child had a preoccupation. She had taken a picture of it when her daughter was biting her nipple. The mother is depicted as topless but the child is fully clothed. She sent this image twice to the offender. Offensive as it is in the context, it is at the lowest level of indecency. There is no evidence that it was passed on by the offender to any other person. 2. The offending conduct, as described in the Statement of Agreed Facts, commenced with a conversation on Facebook Messenger on 6 August 2016. During this conversation, the mother and the offender discussed the "naughtiest things" they had each done "sexually". The mother also told the offender she had a 9 year old daughter. The mother and the offender continued these Facebook communications, including exchanging messages, photographs and video calls, until 11 September. 3. The relevant communications constituting the offences took place on 7, 8, 9 and 10 September 2016. In summary, they comprised a large number of graphic and sexually explicit exchanges, which included persistent attempts to persuade the mother into facilitating online sexual access to her daughter including sexual activity between the mother and the girl despite the mother's repeated expressions of reluctance (interspersed, however, with apparent encouragement). The offender solicited sexual images and videos involving the girl and obtained the picture to which I have already referred. He also sent material describing explicit sexual activity between children and adults to familiarise the mother with the idea of sexual activity between them and her daughter. 4. It is apparent from the interchanges that the offender persuaded the mother to show him her sleeping daughter's naked behind on 8 September. He had no contact with the child aside from one innocuous conversation during a video call in the mother's presence on 9 September, to which I have already referred. Nothing of a sexual nature was discussed between the mother and the offender in the girl's presence. 5. The exchanges were ended emphatically by the mother who stated, "I fell in love with you wrongfully, you no longer have me under your spell. This evil ends today, now" … What you wanted of my daughter is heinous … Evil ends NOW". 1. On 12 September 2016, the mother went to the Royal Canadian Mountain Police alleging inappropriate behaviour between her daughter and her father, from whom the mother had been separated for some time. There was, however, no substance to the allegations. In the course of the investigations, her communications with the offender were disclosed and the mother herself charged with several offences. She was ultimately convicted of endangering the morals of her daughter by taking a sexually suggestive photo of her (namely, the photograph to which I have already referred) contrary to s 172 of the Criminal Code of Canada (which carries a maximum penalty of two years imprisonment) and given a non-custodial sentence. One of the significant factors taken into account was the fact that she suffered from a longstanding mental disorder. The conviction, together with surrounding circumstances, resulted in the daughter's moving from her mother's custody to that of her father and has had, for some time at least, no contact with her mother. 2. The offender's mobile telephone and computer were seized by police. The offender provided the details necessary for access, in particular to his Facebook account. Importantly, no evidence of additional criminal communications was found. Victim Impact Statement 1. A Victim Impact Statement was tendered in the Canadian proceedings against the mother. The statutory requirements for admissibility under s16AAAA(1) of the Crimes Act 1914 (Cth), are satisfied if the statement is made by the victim and describes the "impact of the offence on the victim, including details of the harm suffered by the victim as a result of the offence" (emphasis added). It is submitted that the Statement ought not to be received as it was made for the purpose of proceedings dealing with another offender and a different offence. It seems to me that the connection requirement is to be objectively determined. The mother's offence was the taking and transmission of the image of her daughter at her nipple. There is no evidence as to when it was taken. The relevant point, however, is that it was sent to the offender. Though this was not done at the offender's request, sending it was part of the communications between him and the mother in which he was pressing for sexual images of the girl to be taken. In that sense its communication to him was a part of his offending, to which the mother was an accomplice. I consider that, having regard to the purpose lying behind the provision about victim impact statements, the crucial question is whether it is relevant to the offence before the Court, not its strict provenance. In my view, therefore, it falls within s s16AAAA(1). 2. There is, however, another prerequisite that, although it is not explicitly required by the legislation, is clearly important. The statement can only be presented to the Court with the consent of the victim. I would readily accept that it was so used in the Canadian proceedings. I would also accept that, had she been asked, the victim may well have consented to its being used in the present proceedings. The statement contains private and personal disclosures of continuing significance. Given her age, this is a matter about which she would need to be carefully and sympathetically advised. There is no evidence before me that such a request was made or her consent given. 3. Accordingly, I am not prepared to admit the statement in these proceedings. 4. Also sought to be tendered by the Crown is a report by Ms Laura Mills, a registered psychologist, that was prepared for family law proceedings between the child's parents and tendered in the sentencing proceedings against the mother. Objection is taken on the ground that there is no opportunity for the defence to cross-examine the expert. I consider that this objection is well taken, especially considering the complex history that it discloses and the altogether different purpose for which it was prepared. 5. I should in fairness state, however, that nothing in the statement or the report suggests more significant consequences for the victim than those which would by common sense be expected. Subjective features 1. The offender has some relatively trivial offences on his record. For present purposes I think it is appropriate to treat him as a person of good character aside, of course, from the present offences. Unlike many of the cases that come before the courts involving offences of the present kind, it appears that this is an isolated offence. 2. Tendered without objection on behalf of the offender is a report of Dr Richard Furst, a distinguished forensic psychiatrist. As is usual, Dr Furst took an extensive personal history from the offender. Although the offender did not give evidence in the proceedings and, thus, has not verified these matters, I consider that it is reasonable to take the history into account. (Statements about the offences, of course, must be treated with caution.) The offender's childhood was not particularly unusual although there were some tragic losses as he was growing up. He was not academically inclined but enjoyed sports. He was the victim of bullying and putdowns because of his name. He has been involved with driving go-karts and high powered vehicles since the age of about 16 years. He has driven professionally in car racing events. He has been driving trucks since 1994. 3. The offender has had long-term mental health issues relating to low self-esteem, depression and anxiety arising largely from his relationship with his father. He has had long-term interpersonal difficulties, including with sustaining friendships, intimate relationships and in his working/professional relationships. He sought assistance in 2013/2014 for anxiety and depression as a result of a relationship breakdown and struggled to cope after the breakdown of an intimate relationship in June 2017, when he was drinking large amounts of alcohol and took an overdose of sleeping tablets in an apparent suicide attempt. His housemate at the time, a registered nurse, assisted him and he obtained professional help. He was referred to a Mr Desland, clinical psychologist, who he has been seeing since June 2017 up to his incarceration in February 2020. 4. The offender was a member of a race team owned and managed by his father. In 2001 he suffered a serious crash and spent several months in hospital, further time in rehabilitation as a consequence of a head injury as well as other injuries suffered at the time. The offender told Dr Furst that his treating doctors told him there was damage to his frontal lobe. He has suffered from memory loss and anxiety attacks since that accident although, when he recovered, he continued to race semi-professionally. In a work-related incident in 2010 he suffered a fractured skull. No hospital records relating to the 2001 accident have been produced (I accept that attempts to do so were unsuccessful because they were no longer available). He was, however, admitted to the Liverpool Hospital in February 2010, with a head injury sustained after a syncopal episode. A CT scan demonstrated a fractured right petrous temporal bone. Other features were noted, but none in the frontal lobe. Whether this is consistent with continuing frontal lobe dysfunction is, of course, not anything about which any finding can be made without expert evidence. On examination, however, he was neurologically intact and no abnormalities were found. He was discharged after 4 days as an inpatient and was to be followed up as an outpatient. He was advised he could drive but needed to be careful. Dr Furst has not seen this report. 5. On the whole, despite the fact that the offender did not give evidence, I accept Dr Furst's opinion that the offender met the DSM-5 criteria for the diagnosis of Persistent Neurocognitive Disorder [Acquired Brain Injury – Frontal Lobe Syndrome]. I think it most unlikely that the offender fabricated his account of having suffered a head injury in 2001 and what he was told about it by the doctors. He certainly suffered a skull fracture in 2010 and, as Dr Furst explained, brain injury can result from a combination of direct blows and rapid deceleration (contrecoup injury). I take it that the continuing symptoms described by the offender, together with the history he gave, were regarded by Dr Furst as diagnostically significant. Features of "frontal lobe syndrome" include changes in personality, disinhibition, higher levels of impulsivity, increase sex drive and increase sexualised behaviour. Dr Furst thought this probably contributed to the poor judgment and disinhibition apparent in his offending conduct. 6. Dr Furst had available to him a report from Mr Desland in which he confirmed that he had been the offender's treating psychologist since his suicide attempt in June 2017 and related a history of accumulated multiple stressors leading up to his depression and suicidality. There was also a report from a psychologist Ms Jenny Howell of August 2020, which gave a history broadly consistent with that obtained by Dr Furst. Ms Howell observed clinical symptoms of depression, anxiety and stress. She also thought that certain childhood events resulted in PTSD, a diagnosis with which Dr Furst disagreed. I prefer Dr Furst's view. 7. Dr Furst considered that the offender also met the DSM-5 criteria for Persistent Depressive Disorder, Alcohol Use Disorder and Personality Disorder [borderline and avoidant features]. 8. The offender disclosed a pattern of previous sexual liaisons, accessing pornographic material to masturbate, using chat sites or dating apps to achieve sexual gratification, and/or engaging in brief casual sexual relationships. This behaviour is consistent with increased libido and/or sexual preoccupation. Dr Furst thought that the offender's primary sexual interest and arousal involves adult females not children. 9. To summarise Dr Furst's view, at the time of the offences, the offender was likely struggling emotionally, including having symptoms of depression, anxiety stress and excessive alcohol consumption. These are not independent risk factors or causal factors for sexual offending but are indirectly connected with his conduct that, for reasons described by Dr Furst, can relieve stress, anxiety and depression. 10. The offender told Dr Furst that he felt "disgusted about his actions" and "hated himself for it". 11. As to risk of re-offending, Dr Furst opined, for reasons it is unnecessary to detail, that this was probably towards the lower end of the spectrum, likely well below the risk of recidivism of the average male offender. He thought it reasonable to conclude that the risk was somewhere between 5% and 12% within five years of release, noting that procuring offences were generally regarded as being more serious than possession of child abuse material alone. Statistics of this kind, of course, must be treated with caution, especially when dealing with particular individuals. 12. The offender has written a letter addressed to the Court explaining his feelings of extreme depression at the time and expressing his remorse for committing the offences. Amongst other things, he says that he finds it hard to explain what he did and that he "had lost his normal way of thinking". 13. His father confirms the offender's longstanding depression. 14. I note also that the offender has the continuing support of his fiancé. There are testimonials from other friends who say, amongst other things, that his offence is out of character and that they have never seen the offender act in an untoward manner towards their young children. Assessment 1. The offender's conduct in seeking to bring about sexual interactions between a mother and her child was seriously criminal and, had it been successful, may well have had long term seriously adverse consequences for both, but especially for the child who was only nine years of age at the time. He persisted, despite the mother's repeated expressions of reluctance. The risk was cut short, not due to any of the actions of the offender but because the mother at last came to her senses and brought their communications to an end. I think it reasonable to act on the basis that the child became aware at least of the photograph and its transmission to the offender and must also have suffered feelings of betrayal by her mother's breach of trust. These consequences were all implicit in what the offender attempted to do and far worse was likely to have resulted had his importunities succeeded. Fortunately, they did not. 2. As I have already observed, this appears to have been an isolated and brief period of offending by an offender otherwise of good character. I accept that he was suffering from psychological and mental conditions which compromised his judgment to some degree. It is this context that leads me to accept, with some caution, the offender's expressions of remorse. (His plea of guilty is consistent with this but, in light of the overwhelming Crown case, does not add weight to it.) The offender has been assaulted whilst in prison and is being held in strict protection. I accept Dr Furst's view that his incarceration will be more onerous than for the average inmate. 3. The offences on the Schedule were, in substance, part and parcel of the index offence and demonstrate the character of the persistent attempt constituting that offence. 4. The index offence, for the reasons I have given, was serious because of the potential consequences had the offender's attempt been successful. Careful reading of the exchanges, however, persuade me that, despite some equivocation on the part of the mother, the likelihood that he would succeed was, if any, very low. I note that the mother reacted unhappily following her transmission of the image of the child at her breast. The fact that no actual sexual misconduct occurred is, of course, highly significant and places this offence in the lower range of objective seriousness in terms of the circumstances potentially covered by the provision. 5. Although I have accepted that the offender's psychological issues reduce his culpability and thus should qualify the application of the requirement for general deterrence, it remains important given the function of this law to protect children, especially those who, for whatever reason, are vulnerable. Parity 1. It is submitted on behalf of the offender that the principles applicable to parity of sentences between co-offenders apply in this case. There are substantial differences between the position of the offender and the mother: first, the offender instigated the attempted procurement and persisted with it; second, the mother brought the communications to an end; third, the offence of which she was convicted was, in substance, very different and far less serious than that which the offender is facing; and, fourth, the effect on her child of being in gaol would have been seriously deleterious. I see no proper reason to reduce the sentence which is otherwise appropriate by reference to that imposed on the mother. Sentence 1. The offender, taking into account the utilitarian discount of 10%, is sentenced to an overall term of 3 years imprisonment with a non-parole period of 2 years, commencing on 15 January 2020 and expiring on 14 January 2023. The date upon which he is eligible for release on parole is 14 January 2022. I make the forfeiture order in respect of the computer and mobile telephone seized by police. The sealed envelope is not to be opened without further order. SENTENCE CORRECTION On 11 December 2020, the offender was originally sentenced as per paragraph 37 of this judgment. [37] The offender, taking into account the utilitarian discount of 10%, is sentenced to an overall term of 3 years imprisonment with a non-parole period of 2 years, commencing on 15 January 2020 and expiring on 14 January 2023. The date upon which he is eligible for release on parole is 14 January 2022. I make the forfeiture order in respect of the computer and mobile telephone seized by police. The sealed envelope is not to be opened without further order. Under the Slip Rule On 15 February 2021 Under the Slip Rule (as published on cover sheet in this judgment). Pursuant to s.19AHA of the Crimes Act 1914 (Cth) and s.43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court reopens the proceedings to correct the sentence The Offender is to serve 3 years imprisonment commencing 15 January 2020 and expiring 14 January 2023, to be released after serving 2 years. The Offender would therefore be released after serving 2 years on 14 January 2022 on a recognisance pursuant to s.20(1)(b) of the Crimes Act, subject to the following conditions:: 1. An amount of security of $1, without sureties; and 2. The offender is to be of good behaviour for a period of 3 years upon his release ********** 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: 03 August 2021