R v Schleu [2022] NSWDC 713

District Court New South Wales

Medium Neutral Citation: R v Schleu [2022] NSWDC 713 Hearing dates: 18 November 2022 Date of orders: 2 December 2022 Decision date: 02 December 2022 Jurisdiction: Criminal Before: Sutherland SC DCJ Decision: See [43]. Offender sentenced to an aggregate sentence of four years with a non-parole period of two years. Catchwords: CRIME — Child sex offences — Commonwealth offences — Child abuse material — Using carriage service for child pornography material or child abuse material Legislation Cited: Crimes Act 1914 (Cth) Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) Criminal Code Act 1995 (Cth) Cases Cited: Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 R v Gajjar (2008) 192 A Crim R 76 R v Gent (2005) 162 A Crim R 29 R v Hutchinson [2018] NSWCCA 152 Category: Sentence Parties: Crown Jack Schleu (Offender) Representation: Counsel: R Al-Majed (Solicitor for Crown) R Keller (Offender)

Solicitors: Commonwealth Director of Public Prosecutions (Crown) Brady & Associates Lawyers (Offender) File Number(s): 2020/00320821; 2021/00214169 Publication restriction: Nil

Sentence 1. HIS HONOUR: Jack Schleu appears for sentence after pleading guilty to two substantive offences arising under the Commonwealth Criminal Code. The first offence contrary to the provisions of s 474.261 of the Criminal Code Act 1995 arises from the use of a carriage service to procure a person under the age of 16 years for sexual activity. Such an offence carries a maximum penalty of 15 years imprisonment. The second offence of possessing child abuse material is a contravention of s 474.22A of the Criminal Code. It similarly carries a maximum penalty of 15 years imprisonment. 2. The facts giving rise to the first offence are set out in a statement of Agreed Facts signed by the offender on 11 May 2022. It is neither necessary nor appropriate to set out the details of the communications which were transmitted utilising the telecommunication service. It is sufficient to observe that investigators from the Child Abuse and Sex Crime Squad Child Exploitation Internet Unit or CEIU were conducting proactive investigations, inter alia, with respect to classified advertisements posted by persons seeking to procure sexual activity with children. 3. In September 2020 investigators from the CEIU observed an online classified advertisement seeking younger men "over 14" who would be available to "make love like lovers do". On 22 September 2020 using an assumed online identity or AOI of a 14 year old male, child exploitation investigators initiated contacted with the offender by responding to the advertisement which had been placed. The response included the assumed name "Tyler" and asserted that he was 14. The offender replied by email the same day. 4. Between 22 September and 10 November 2020 the offender and the assumed online identity consistently communicated, initially by email and subsequently via SMS and MMS messages on the offender's mobile phone. The messages sent by the offender described in detail the sexual activities that he sought to engage in with what he presumed was the 14 year old male who was receiving and sending messages. In the course of the offender's endeavours to procure the recipient of his messages to engage in sexual activity with him, the offender sent photographs of his erect penis, cartoon images of a pubescent male and adult male having anal intercourse, and video recordings of himself masturbating. 5. In due course the offender made arrangements with the assumed online identity to meet, with the expressed intention of engaging in the sexual activities which had been described in graphic detail. Investigators were readily able to identify the offender by various of the email addresses used by him and also by the circumstance that the mobile phone used by him was registered in his own name. 6. On 10 November 2020 after an arranged meeting with the assumed online identity was cancelled by the offender, police executed a warrant at the premises to which both his email and mobile phone were registered. That address was in fact the address of the offender's mother in Yagoona. It was the address that the offender, despite being 59 years of age and married, had utilised as his mailing address. The offender at the time resided with his then wife in premises in nearby Chester Hill. 7. After police attended the Yagoona premises and were advised by the offender's mother that he in fact lived five minutes away, the offender was contacted and asked to come to his mother's home. The offender was advised that police were in attendance. A short time later the offender arrived at his mother's premises in the company of his then wife. After his arrival at Yagoona he was searched and placed under arrest. Police could not locate his mobile phone and were advised by him that he had lost his mobile phone on the way to his mother's premises. Police conducted a search for the mobile phone on surrounding roads without success. The offender remained in custody until released to bail on 12 November 2020. The offender thereafter remained on bail. His conditions of bail included that he was not to access the internet or social networking sites. 8. On 27 July 2021 police were patrolling in the vicinity of Miller Road Villawood during a period of COVID-19 lockdown. They observed a vehicle containing the offender parked in the driveway of an industrial site. The offender was observed to get out of the vehicle and stand near a gate on the driveway. He was then observed to walk up and down along the industrial site fence line next to the roadway. Police introduced themselves to the offender and explained that they were conducting enforcement of the COVID-19 stay at home orders and asked him why he was at the location. The offender told the police that he was there to pick up grass for his rabbits. Police advised the offender that this was not an exemption under the orders and requested his identification. After receiving details of his identity police checks revealed the previous child abuse related proceedings and his conditions of bail. Police asked the offender if he was in possession of a mobile phone. The offender produced his iPhone and gave his consent for police to search it. Police located information on the mobile phone indicating that the offender had had access to the internet contrary to his bail conditions. Police questioned the offender about the mobile phone. He identified it as his own and indicated that he thought that bail conditions were to not access social media. Police informed the offender that he had in fact accessed social media on 30 May 2021. The offender said, "I guess I shouldn't have done that". 9. The offender was arrested and taken to Bankstown Police Station. A further search of the mobile phone memory located a number of stored images which were child abuse material. The phone was subsequently forensically examined. 19 images were located which were classified as category 1 on the Interpol Baseline Scale or IBS, and 31 images which were classified as category 2. 10. Category 1 within the Interpol Baseline Scale is a classification of images used in as number of different international jurisdictions. It identifies sexual material involving prepubescent children, that is under the age of approximately 13 years, in which a child is involved in a sexual act or witnessing a sexual act or where the material is focused or concentrated on the child's anal or genital regions. It constitutes material that is illegal in all countries which have laws relating to child exploitation material. 11. Category 2 of the Interpol Baseline Scale relates to material that falls within the Australian definition of child abuse material. This definition is broader than category 1 in the International Baseline Scale and includes sexual material which also involves post-pubescent children, broadly between the ages of 13 and 18, who are depicted as involved in sexual acts or material as previously described. It also includes depictions or written descriptions of any real child under the age of 18 who is or appears to be a victim of torture, cruelty or physical abuse. Category 2 also includes descriptions in the form of audio, texts, written chats or stories relating to any child under the age of 18 who is or is implied to be engaged in sexual activity. The definitions of activities which fall within category 2 extend to cartoons or other representations. 12. The forensic examination of the mobile phone indicated that the images found in one location on the mobile phone had been accessed by the offender on various dates in January, April, June and July 2021. The offender remained in custody bail refused from the date of his arrest from 27 July 2021 until he was again released on bail on 18 January 2022. 13. Subjective features relevant to the offender have been placed before the Court in a number of written documents. No oral evidence was led on the sentence proceedings. A letter written by his daughter, Bianca Manewell, sets out detail of the offender's background. He was born in Germany on 16 January 1961. He came to Australia when he was seven years of age. His daughter describes the offender's history, presumably based on knowledge gleaned from her father over the years. She described her father as having been picked on at school because of his German heritage. She described him even obtaining "a concussion" on one occasion. 14. The history set out by the offender's daughter describes her grandfather, the offender's father, having left Australia. As a consequence the offender had gone with friends from Germany to Canberra where he was said to have worked on a farm each morning before going to school. The offender was about ten years of age when this occurred. He returned to live with his mother when he was in year 10. I would infer that this was when he was about the age of 15 or 16. When he was 17 years of age he moved back to Germany to try and get his life on track. He remained there for approximately 18 months. 15. The offender's daughter describes him as having had a "really bad" car accident when he was in his early twenties. He was described as having effectively "died" for 8 minutes. She described him having been in hospital for an extensive period of time and enduring months of rehabilitation to regain what she described as some form of normalcy in his life. She described the offender having met her mother and having had two children, herself and a brother. The relationship dissolved when the children were babies. 16. Ms Manewell describes her father having then met and fallen in love with a lady named Debra who unfortunately passed away. She described Debra having died as a result of an asthma attack and her father never having got over the trauma of her death. She describes him still talking about her to this day. Her account does not indicate when these events are said to have occurred. However she goes on to indicate that the offender's most recent relationship/marriage from the past almost ten years had broken down following which her father had moved out and into the place which he was renting. She described her father as being a hoarder and said that she had spent a considerable period of time prior to Christmas 2020 assisting him to clean his house out. She described that sadly, within five months, her father had filled the house and every room to the ceiling again. 17. She described her grandmother, the offender's mother, being reliant on the offender since he had moved in with her to get her groceries and take her to appointments. Ms Manewell described her grandmother's need for a carer on a permanent basis and said that was a role filled by her father since his release from custody. 18. A letter from a treating psychologist Mira Azar indicated that the offender had attended upon her for psychological counselling on four occasions during 2021 - February, April, June and July 2021 - and then one occasion in September of 2022. The offender spoke of the psychological difficulties and violence he had experienced in his period on remand. He discussed suicidal ideation. The offender told the psychologist that he had been released from custody four months previously. I note in passing that by the time of that consultation on 6 September 2022 it was closer to eight months from when he had been released from custody on 18 January 2022. 19. The treating psychologist was of the opinion that the offender presented with symptoms consistent with a diagnosis of chronic depression as well as a generalised anxiety disorder pursuant to the criteria in DSM-5. Both the depression and anxiety disorder were assessed as severe. By reference to a self-report assessment which had been conducted in April 2020, his symptoms appear to have significantly worsened over the period of time which he had been custody. The counselling sessions were focussed on cognitive behavioural therapy aimed at developing personal insights, emotional regulation strategies and relaxation and mindfulness strategies. 20. Additional material related to the physical circumstance of the offender which indicates that he sustained a serious injury to his hip whilst in custody. A letter from his current treating doctor at the Bass Hill Medical Centre, together with a report from a MRI of the offender's left hip, confirmed that he suffered an acetabular labral tear. The pain from that tear in the hip joint is also associated with a paralabral cyst. 21. Material subsequently forwarded to the Court and included as part of the tender bundle are documents recently obtained from Justice Health. They indicate that while in custody at Bathurst the offender was assaulted by another prisoner who jumped on his outstretched left leg. It is clear that the tear to the soft tissue in his acetabulum or hip socket was sustained as a consequence. The offender was transported from gaol to Bathurst Hospital. At that time the provisional diagnosis was of a hip fracture and dislocation. However in the absence of a frank fracture it would appear that after treatment with analgesics he was discharged from hospital and sent back to the care of the New South Wales Correctional Centre. 22. The Court is aware, despite the absence of medical material having been tendered, that the customary treatment for a labral tear of the kind described requires the intervention of an orthopaedic surgeon. Arthroscopic surgery is frequently indicated. The Court has not been provided with any evidence regarding arrangements or intention for such surgery by the offender. However, it is noted that the offender still requires the use of crutches even when just standing. 23. Additional medical material was tendered with respect to the offender's mother. She is described as having a past history of frequent falls and being a falls risk. She also has a history of cognitive decline with a poor memory and at times suffers from confusion. She has depression, anxiety and lacks confidence. She suffers from arthritis and chronic low back pain and needs assistance on a daily basis. Her GP describes her as being dependent on the offender. I note that the offender has lived with his mother since his wife separated from him, inferentially as a direct result of him being charged with the current offences. 24. The Court is required to sentence an offender in accordance with Part 1B of the Crimes Act 1914. The governing principle set out in s 16A(1) requires the imposition of a sentence that is of a severity appropriate in all the circumstances of the offence. The Court is specifically required to take into account the articulated list of factors set out in s 16A(2) of the Commonwealth Crimes Act. The general principles applicable to sentencing for child abuse material offences have repeatedly and consistently been restated by appellate Courts throughout the Commonwealth. The inevitability of a sentence involving an immediate term of imprisonment in the absence of exceptional circumstances is a well established principle in a multitude of determinations in the appellate jurisdiction of the different States of the Commonwealth. 25. An assessment of the objective seriousness of such offending includes a number of identifiable factors which have been various itemised in numerous cases. More recently RA Hulme J in R v Hutchinson [2018] NSWCCA 152 revised what was described as the non-exhaustive list of relevant factors which had previously been set out by the New South Wales Court of Criminal Appeal in Minehan v R [2010] NSWCCA 140 ; 201 A Crim R 243, which his Honour described as relevant to the assessment of objective seriousness of child abuse material offences. I do not restate the full list of such factors. They relevantly include whether actual children were used in the creation of the material, the nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed, the number of images and the significance arising from the number of different children depicted, in circumstances of dissemination or transmission the number of recipients, the degree of any planning, organisation or sophistication utilised by the offender in acquiring, storing or transmitting the material, the risk of material being seen or acquired by vulnerable persons, particularly including children and any other matters in s 16A of the Crimes Act 1914 bearing upon objective seriousness. 26. In relation to the various identified factors, amendments to the Crimes Act 1914 relevant to the sentencing of offenders for child sexual offences were introduced by the Crimes Legislation Amendment Sexual Crimes Against Children and Community Protection Measures Act of 2020. Those specific amendments, which have application in the present matters, require the Court to have regard to the timing of the plea of guilty and the degree to which those factors resulting in any benefit to the community or to any victim, s 16A(2)(g). The amendments also require the Court to take account of the objective of rehabilitation when sentencing an offender for a Commonwealth sexual offence in addition to any other matter: s 16A(2)(aaa). The amendments also require that, absent exceptional circumstances, an actual period of imprisonment must be served, s 20(1)(b)(2). There is now a statutory presumption that any terms of imprisonment will be served cumulatively, s 19(5), and there is a requirement that additional conditions apply upon the release of an offender on a recognizance release order. 27. There are a veritable multitude of appellate decisions throughout the Commonwealth which have consistently stated almost self-evident principles in sentencing for offences relating to the sexual exploitation of children and in particular the utilisation of electronic means of either procurement or dissemination of child abuse material. The primary sentencing consideration flowing from the paramount public interest in promoting the protection of children is general deterrence, see for example the remarks of Johnson J in R v Gent [2005] 162 A Crim R 29. 28. The offence in s 474.26 was introduced so as to specifically address the increasing trend of paedophiles using the internet as a means of anonymously accessing children and subsequently grooming them for intended sexual offending, see R v Gajjar [2008] 192 A Crim R 76. 29. It is clear that an offender's conduct is to be regarded as no less morally reprehensible merely because the person to whom the communication is made was, unbeknown to the offender, an undercover police officer. The requirement of immediate imprisonment being ordinarily required for such offences had been clearly stated in numerous authorities prior to the statutory amendment. 30. The primacy of general deterrence means that personal mitigatory factors such as prior good character, age and also prospects of rehabilitation consequently have more limited weight that otherwise might have been the case. Bearing in mind the relevant principles the offending conduct in respect of the procurement offence occurred over a period of slightly more than seven weeks. 31. The offender was 45 years older than the purported age of the undercover police officer. The communications occurred consistently during the approximate seven weeks. Communications occurred on a total of 31 days out of the 50 days over which the offending conduct occurred. 32. The extracts included in agreed facts indicate a degree of persistence by the offender. The nature of the sexual material communicated demonstrated an increase in the explicitly sexual language used by the offender and repeated descriptions of the activities which were intended and expressed to have been desired. It suffices to describe this as engagement in anal and oral intercourse, masturbation and ejaculation. The descriptors were explicit. The graphic photographs and images which were forwarded have been described earlier. The offender's awareness of the wrongfulness of his conduct is in my view buttressed by the circumstance that he "lost" his mobile phone when travelling to his mother's address to meet with police. 33. In the Crown submission the offending falls within the mid-range of objective seriousness. On behalf of the offender, the level of objective seriousness was submitted, somewhat unhelpfully, to be "a matter for the Court". Whilst the specification of objective seriousness by reference to a range is not a necessity in cases which do not involve a standard non-parole period, a determination of objective seriousness is often described as both helpful and of assistance in exposing with some clarity that aspect of consideration in the Court's ultimate instinctive synthesis. It is of course to be recognised that just where a so-called mid-range commences and ends is somewhat of a fluid concept. An individual Judge's assessment will be tempered by his or her experience of past cases and perchance by perusal of comparable cases. In my view the objective seriousness of the procurement charge with respect to the present offender falls within a broadly described mid-range. 34. With respect to the possession of child abuse material the relevant factors include the number of images possessed and the nature and content of that material. There were, by comparison with the vast majority of cases that come before the Court, a very small sample of images by reference to their numerical quantity. Whilst not viewed by the Court the Crown has not advanced a submission that is frequently made in other cases that the nature of the material was of a particular depravity. Notwithstanding the absence of such a submission the inherent seriousness of the possession of child abuse material is confirmed by the categorisation of 19 of the images as being within category 1 of the Interpol Baseline Scale. The objective seriousness of the possession of child abuse material viewed individually falls below the mid-range. 35. It is recognised that there was no identifiable risk that the material would be seen by children and in the circumstances there was no evidence of a sophisticated degree of planning. However the fact that the offence was committed while the offender was on bail and constituted a contravention of his conditions of bail operates as an aggravating factor in respect to the second offence. 36. The offender has a history of prior criminal offending which predominantly relates to drug offences, driving matters and offences of dishonesty. He has no prior offending against children. His prospect of rehabilitation whilst not having been assessed by either a psychologist or in a sentence assessment report may at least be viewed as optimistic in light of his having commenced psychological counselling and treatment, albeit not consistently, prior to him being sentenced. It is appropriate to take into account the effect of any return to custody upon his immediate family in circumstances where he is now the fulltime carer of his mother, see Totaan v R [2022] NSWCCA 75. 37. A further factor of relevance in the instinctive synthesis derives from the serious hip injury sustained by the offender whilst in custody. Given the nature of the offences for which he was incarcerated I am satisfied on the balance of probabilities that an appropriate inference regarding the motivation for the infliction of such an injury is to be found in the nature of those offences. I am accordingly of the view that it is appropriate to take into account the infliction of extra-curial punishment in accordance with well recognised authority. 38. In the course of submissions information was provided from the Bar table, which I accept, that the offender's time in custody was rendered more onerous as a consequence of the restrictions imposed as a result of the COVID-19 pandemic. In particular the offender was a close contact with an inmate in the truck which conveyed him to gaol. As a consequence he was obligated to spend 10 days in complete lockdown and total isolation. 39. The offender is entitled to a discount as a consequence of his plea of guilty in recognition of his facilitating the course of justice with respect to a Commonwealth prosecution. There is also a clear utilitarian value. The appropriate discount in each case is 25%. 40. His release to bail in circumstances where he has only served a total of five months and 26 days in custody creates the need for careful consideration of the relevant principles applicable to determining an appropriate sentence for offences of this kind. Ample material has been tendered which demonstrates the need of his mother for third party assistance and care. No evidence has been provided as to who cared for his mother prior to his initial arrest nor when it was precisely that he determined to move in and live with his mother. The clear inference in his daughter's letter is that at least up until Christmas 2020 he was residing in premises other than at his mother's home in Yagoona. The Court similarly has no evidence as to whether the home in Chester Hill was owned or rented nor when his former wife and he separated. While the Court will take into account the effect of his return to custody upon his mother, such a factor is not of itself determinative on the issue of whether he should or should not be returned to custody. 41. The ongoing difficulties with his left hip require him to utilise a walking aid, at present crutches. That is also a contributing factor to a consideration of his time in custody being more onerous than for a fully able-bodied person. However I am not of the view that the time already spent in custody adequately reflects the requirement for an appropriate minimum term required to be served. 42. I have had recourse to the cases included in the table provided by the Crown as well as decisions at first instance on Caselaw and the Judicial Commission statistics. 43. With respect to the first offence in time of using a carriage service to procure a person under 16 for sexual activity, after making an allowance for a 25% discount an appropriate sentence is a period of three years. 44. With respect to the second offence which occurred whilst on bail for the first offence a sentence of two years is appropriate after taking into account a 25% discount. 45. There should be partial accumulation of those separate offences. I have taken into account the principle of totality and also the circumstance that it might properly be viewed as somewhat more onerous to be returned to custody than to have continued to served time on remand. 46. With a degree of rounding I propose to take into account the time already served by backdating the commencement of the sentence for the first offence to commence on 2 June 2022. That sentence will expire on 1 June 2025. The sentence with respect to the second offence will commence on 2 June 2024 and expire on 1 June 2026. The effective head sentence is accordingly a period of four years. There will be single non-parole period of two years which will date from 2 June 2022 and the offender will be eligible for release on parole on 1 June 2024. 47. I further order that pursuant to s 23Z(d) of the Crimes Act 1914 and upon application of the Commonwealth Director of Public Prosecutions the following items are forfeited to the Commonwealth: an Apple iPhone 8 and I will set out the IMEI number and the serial number in the formal order. 48. Are there any other orders required madam Crown? 49. AL-MAJED: No your Honour. 50. ADJOURNED