District Court New South Wales Medium Neutral Citation: R v Pedersen [2021] NSWDC 535 Hearing dates: 24 September 2021 Date of orders: 08 October 2021 Decision date: 08 October 2021 Jurisdiction: Criminal Before: Berman SC ADCJ Decision: The offender is sentenced to imprisonment for a period of two years. He is to be released immediately upon entering into a recognizance release order of $5000, without security, that he will comply with conditions as set out by his Honour Catchwords: CRIMINAL LAW – Sentence – 16BA Schedule – Use carriage service to send indecent material – Grooming – Sexual gratification from offending behaviour – Cooperative with police – Isolated offending – Exceptional circumstances. Legislation Cited: Commonwealth Crimes Act. Commonwealth Criminal Code New South Wales Crimes (Sentencing Procedure) Act Category: Sentence Parties: The Crown Christopher Carl Pedersen Representation: Counsel: P English – the offender Solicitors: Director of Public Prosecutions (Cth) Blaxell Law – the offender File Number(s): 2020/233813 Judgment 1. For those offenders convicted of a Commonwealth child sex offence committed after 23 June 2020, section 20(1)(b)(ii) of the Commonwealth Crimes Act provides that the court before which the offender is convicted may, if it thinks fit, sentence that person to imprisonment but direct that the person may be released, if the court is not satisfied that there are exceptional circumstances, only after that person has served a period of imprisonment. Section 20(1)(b)(iii) provides that a court can order immediate release only where there are exceptional circumstances. 2. In the convoluted way which is now common to the drafting of Commonwealth legislation, it appears that the Commonwealth Parliament is intending to create something of a presumption that those convicted of Commonwealth child sex offences serve a period of actual imprisonment, requiring offenders to demonstrate exceptional circumstances before they can avoid going to jail. 3. The offender in this matter, Christopher Carl Peterson is to be sentenced for a Commonwealth child sex offence committed on 14 July 2020. In particular he has pleaded guilty to an offence under section 474.27.1 of the Commonwealth Criminal Code of using a carriage service to groom a person under the age of 16 years of age for sexual activity. The maximum penalty for that offence is one of 15 years imprisonment. When he is sentenced for that offence, he asks that I take into account another offence - one of using a carriage service to transmit an indecent communication to another person under the age of 16, that offence being committed on 3 April 2020. 4. Because of section 20(1)(b)(ii) and (iii) of the Commonwealth Crimes Act to which I referred earlier, many of the submissions made to me focused on the question as to whether there were exceptional circumstances in this matter. I will return to that issue later. 5. Another complicating piece of legislation also needs to be referred to, this time section 67 of the NSW Crimes (Sentencing Procedure) Act. Mr English, who appeared for the offender, says that his client is eligible to serve any sentence of imprisonment I impose upon him by means of an Intensive Correction Order, but the Crown says that that option is not available. 6. Section 67(1)(b) provides that an Intensive Correction Order must not be made in respect of a sentence of imprisonment for a prescribed sexual offence. The definition of "prescribed sexual offence" to be found in subsection 2 lists a number of offences under the Commonwealth Criminal Code, including an offence under section 474.27.1, but the definition concludes with these words, "being an offence the victim of which was a person under the age of 16 years". In this case, as will be made clear when I eventually get to the facts on which the offender is to be sentenced, there was no victim under the age of 16. The person with whom the offender was communicating was in each case an adult police officer. 7. Thus, Mr English says that the definition does not cover the offence committed by his client because there was no victim under the age of 16, and so an Intensive Correction Order is available. 8. The Crown's answer to this submission is both simple and correct. The Crown relies on section 67(1)(g) of the Crimes (Sentencing Procedure) Act which provides that an intensive correction order is not available for an offence that includes an intention to commit an offence referred to in paragraph (b). In this case the offender believed that the person with whom he was communicating was a 14-year-old girl. He intended to commit an offence against 474.27.1 of the Commonwealth Criminal Code against a victim who was under the age of 16 - thus the offence is one of those listed in section 67(1). Therefore, an intensive correction order is not a sentencing option in the present matter. Whether this is to the offender's advantage or disadvantage remains to be seen. 9. The first offence I will describe is the one committed on 3 April 2020, it to be taken into account on the 16BA schedule. On that day the offender began chatting to someone on a social networking website. Using the online identity "Chris 59", he went to the "teen chat room" and initiated communication with a person pretending be a 14-year-old girl. He told her he was a 59-year-old male. He asked her whether she had ever chatted with an older man before and then told her that if he knew the kiss emoji he would send it to her. He told her "I like chatting sexy sometimes, you ever do that?" And then sent the following messages "kiss", a tongue out emoji, "with a tongue LOL" and "couldn't find the kiss one again". They arranged to chat further using Skype. 10. The offender sent a "wave" on Skype and, having established that he was communicating with the same person he was chatting to earlier: * told her that she was cute * sent a selfie to her and when she told him he looked nice and not that old, he said "thanks babe, I try, you're really hot and cute LOL" and "you're superhot" * asked whether she had a boyfriend and called her "baby" * asked to see a larger version of her profile picture and told her "you're very cute and hot, even better full-screen LOL" * asked her "have you had, you know, sexual thoughts about boys or men?" * asked her what she was wearing and when told she wanted to wear pyjamas said "bet you look hot in those PJ's too", later saying that he wanted to see them * said "you're so sweet" and "I am just kind of flirting with you" * asked "what would excite you" 1. They discussed chatting again in a conversation in which the offender told the person to whom he was chatting, "it makes me blush" and that she "will learn all sorts of secrets from me". He said "it will be a fun game" but "I just have to be careful wife doesn't catch me chatting". 2. Fortunately, the person he was chatting with was not a 14-year-old girl at all but a police officer using an assumed identity. Of course, the offender was not to know that. It was a serious matter indeed to communicate in such terms with a person he believed was a 14-year-old girl. Asking her whether she had sexual thoughts about boys or men, telling her she was "hot" and that he wanted to see her in pyjamas were clearly indecent communications. There can be only one explanation for the offender's behaviour, that he found it sexually exciting to be doing what he did. 3. The next offence is more serious. It was committed on 14 July 2020. On that day the offender was on a different social networking site using the online identity "ausdad". His profile indicated that he was 59 years old. He initiated communication with a person who told him she was a 14-year-old girl. The offender told her, correctly, that his name was Chris and he lived in St Ives. He asked her whether she was home alone and whether she chatted much with older men on the social networking site. 4. They moved their chat to Skype where the offender's name was accurately given as "Chris Pederson". During that chat the offender asked for a picture and when he received one he described the picture as "very cute" and then sent a selfie in return. He described her as "hot". 5. The offender's behaviour became much worse when he asked her whether she masturbated and he told her that he could show her what to do. He told her that he was "kinda horny" because it had "been a while" "between getting off", before asking her whether she had ever touched herself. When told that she had not, he offered to show her what to do saying "I would come over there". After being told what part of Sydney she lived in he asked, "would you ever meet me do you think" 6. He said about the person masturbating: * "you will love it" * "like your whole body will feel tingly" * "and esp between your legs" 1. The conversation continued with the offender encouraging the person to whom he was communicating to masturbate and he told her what to do. 2. He said: * "spread your legs and put your hand down there" * "in your pants" * "put your hand inside your panties too" * "now rub, up and down in small circles, pressing on it" * "press with your fingers" * "rub around with your whole hand" * "see what feels best" * "if it feels good to keep doing it" 1. It is apparent that at the same time as the offender was instructing a person he believed was a 14-year-old girl to masturbate, he was also working from home because he told her "just on a work call now sorry, can still chat a little bit though… Sorry babe, just trying to concentrate here". That the offender was sexually excited by what was happening is make clear when he told her "my hand was down my pants too LOL" 2. He told her that he wished he was touching inside her underwear, thanked her for not treating him like "an old perv" and told her that she was "fun, and nice. And sexy" 3. The chat ended with the offender saying "hopefully we can chat again" and "chat tomorrow", but there is no evidence that he attempted to resume communicating with that person again before he was arrested on 11 August 2020. 4. Once again it is fortunate that the person to whom the offender was speaking was not a real 14-year-old child but a police officer. It is not a matter of mitigation that that is the case - it would be a matter of aggravation if a real 14-year-old girl was harmed by the offender's behaviour 5. The offender is now 61 years old and is a man of otherwise good character. Not only does he have no criminal history but references tendered on his behalf backed up the offender's evidence that the offences were uncharacteristic of him. 6. The offender was born in the USA. His father was in the military and the offender's family moved as his father was posted to various locations overseas and within the USA. As he grew up he did not experience domestic violence, substance abuse, mental illness, sexual abuse or other childhood trauma. He was close to his family. He is a keen musician. For a while he was working as a drummer but realised in his 30s that if he was to meet his family's needs, he needed to change careers. He now works in IT and has worked for a major bank for the past 14 years. 7. At the time of his arrest the offender was working from home, married and living with his wife and daughter in St Ives. The evidence suggests that at the time of his offending the offender was experiencing a number of stressors in his life, some of them exacerbated by the Covid 19 pandemic. 8. His 88 year old mother is in assisted care in Oregon. He can't visit her of course due to the pandemic, which he finds upsetting. His wife lost her job last year, again because of Covid 19, leaving the offender the sole breadwinner for the family. His relationship with his wife is problematic and this too is a source of stress for him. His son cannot return to Australia from overseas because of Covid 19. His daughter requires a significant quantity of medication and counselling arising from a circumstance which I will not further mention in order to protect her privacy. This circumstance in particular is a source of a significant stress for the offender. 9. A psychologist interviewed him for the purposes of these proceedings. The offender told him that he had no deviant sexual interests and specifically denied any history of sexual interest in children. He had a brief extramarital affair in his late 40s and does not have a sexual relationship with his wife. He first used online sexual chat websites some five years ago both as a means of sexual expression and sexual validation. This behaviour escalated when he was locked down in 2020 as he felt understimulated and trapped, working from home. 10. He could not explain to the psychologist why he sought to interact with 14-year-old girls in a sexual way. There really can only be one explanation though – he obtained sexual gratification from his offending behaviour. 11. The offender pleaded guilty at the earliest opportunity. Consistent with that attitude he was cooperative with police on his arrest, providing them with the information they needed to obtain evidence, including giving them passwords to his electronic devices. In order to reflect the utilitarian benefit of his plea of guilty I will discount the sentence I would otherwise have imposed by 25%. His cooperation with police at the time of his arrest and later is not the subject of a specific discount, but I have taken it into account in formulating the appropriate sentence to impose upon the offender. 12. I am satisfied that the offender is remorseful and has good prospects of rehabilitation. I accept that, as the offender said in his evidence, his behaviour sickens him. Since his arrest the offender has been undergoing psychological treatment which he has found valuable. With help, he has developed strategies to cope with stress and negative thinking. 13. The offender relied upon an affidavit of his wife. Importantly the Crown did not require her for cross-examination. This means that I should accept what she said. One of the matters addressed in that affidavit concerned the family's financial circumstances. She said that if the offender were to lose his job, presumably as a consequence of going to jail, their daughter would not be able to continue with her mental health therapy program nor would she be able to afford their daughter's prescriptions or psychologist bills. Their daughter would be significantly affected if the offender went to jail, and it would be "devastating for (their daughter) to not have her father's daily love and presence". If the offender lost his job, they would have to sell the family home. 14. One of the matters relied on by Mr English is the effect that his client's incarceration would have upon his family. This raises the question as to whether the effect upon them would be exceptional. Mr English has not satisfied me on the balance of probabilities that it would be. Sadly, it is commonplace for breadwinners to be sent to jail and for their families to suffer significantly as a result. Substantial though the effects upon the offender's wife and daughter in particular would be, those effects are the sort of thing that happen when a loving father and husband who is the sole, or virtually the sole, source of income for the family, commits serious crimes and is sent to jail for them. Such consequences, while terribly sad for the innocent members of the family, are not exceptional at all. 15. That is not to say that they are to be ignored. Instead, I will take them into account as part of the general mix of subjective factors which I look at in deciding the appropriate sentence to impose upon the offender. In particular I will take them into account in deciding whether there are exceptional circumstances for the purposes of section 20(1)(b)(ii) of the Commonwealth Crimes Act. 16. Another matter relied on by Mr English concerns the effect of the Covid 19 pandemic on prisoners in New South Wales. There are many such effects. * Prisons are unpleasant places at the best of times, particularly so for offenders in their 60s with no criminal history. But they are even more unpleasant at the present time because of the necessary restrictions which flow from the risk that offenders face from the Covid 19 virus in custody. The authorities have been forced to impose significant restrictions on such things as time outside cells, personal visits and so on, making an offender's time in custody harsher than it would otherwise have been. * It is hard to socially distance in a crowded prison and so the risks of a prisoner catching the virus are significantly increased. * Prisoners such as the offender would feel more anxious whilst in custody, fearful that they will become infected. 1. At this point I will return to where I started. Are there are exceptional circumstances such that the presumption that the offender will serve some time in prison, is overcome? 2. Perhaps the most important factor concerns the, at least unusual, circumstances of the offences themselves. In contrast to most other cases of this kind the offender did not pretend to be something he was not. He did not for example pretend to be a 17-year-old boy in order to overcome any resistance a 14-year-old girl might have to engaging in a sexual way with someone they have never met. Further, and perhaps more importantly, there was no repeated contact between the offender and the persons to whom he was chatting. Most other offences of this kind involve sustained grooming, involving many separate online communications over a significant period of time. Nor is there any evidence at all that the offender attempted to regain contact with either of the people to whom he was communicating, despite the time which elapsed from the conclusion of the two chats, the last being on 14 July 2020, until his arrest almost a month later. In addition, these offences were isolated, the two offences occurring more than three months apart and a search of the offender's electronic devices revealing no other offences of this kind. 3. That is not to underestimate the objective gravity of what the offender did. It clearly was conduct capable of harming vulnerable and impressionable children who must be protected from the sometimes predatory behaviour of adults. But while all grooming offences are serious, they are not all of equal seriousness. 4. Also, in deciding whether there are exceptional circumstances in this case I take into account the offender's rehabilitation and the effects that his incarceration would have on his family as regards both financial and mental health matters. 5. I need not decide whether individually the matters to which I have referred amount to exceptional circumstances, because I am satisfied that together they reach that standard. Accordingly, it is open to me to impose a sentence of imprisonment upon the offender, but order that he be released immediately. This would have the effect that the offender serves no time in custody at all. Such a sentencing outcome is one of the options available to me. 6. I recognise immediately the leniency involved in such a sentence. I accept that it is inadequate, although I do not believe it is manifestly so. But I have to choose from such an outcome on the one hand and what I consider to be manifestly excessive sentence of a period of full-time imprisonment on the other hand, because the intermediate option of an ICO is denied me. 7. Let me bluntly say that were I able to impose an ICO upon the offender, that is what I would have done and that the conditions attaching to that order would have been far more punitive than the order I will soon make. Although for obvious reasons Mr English attempted to persuade me that Section 67 of the Crimes (Sentencing Procedure) Act did not apply, it is that section which has led to me imposing what I have already acknowledged is an inadequate sentence upon his client. 8. The offender is sentenced to imprisonment for a period of two years. He is to be released immediately upon entering into a recognizance of $5,000, without security, that he will comply with the following conditions: 1. he is to be of good behaviour for a period of four years 2. he is to continue to receive treatment from Ms Delphine Bostock, or such other psychologists nominated by either her or the offender's general practitioner, for as long as the person providing treatment considers it would be beneficial to the offender. 3. he is to be subject to the supervision of a probation officer and obey all reasonable directions of that officer 4. he must not travel interstate or overseas without the written permission of that officer 1. he must undertake such treatment or rehabilitation programs that the officer reasonably directs 2. he is to report to the Hornsby office of Community Corrections within 7 days. ********** 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: 08 October 2021