New South Wales District Court CITATION: R v BOZINOVSKI [2009] NSWDC 200 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 4 June 2009 JUDGMENT DATE: 4 June 2009 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: The offender is sentenced to imprisonment for two years and six months. He is to be released after serving one and a half years upon entering into a reconnaissance himself in the sum of $100 with the following conditions. He is to be of good behaviour for the remainder of his sentence, he is to accept the supervision of the Probation and Parole Service. CATCHWORDS: Criminal Law - Sentence - Using a carriage service to groom a person under the age of 16 years - Predatory behaviour LEGISLATION CITED: Commonwealth Criminal Code CASES CITED: R v Gadgar [2000] VSCA 268 PARTIES: The Crown Toni Bozinovski FILE NUMBER(S): DC 2008/11/1313 COUNSEL: P McGuire - Crown P Rosser QC - Offender SOLICITORS: Commonwealth DPP Hansons Solicitors SENTENCE 1 HIS HONOUR: The offender is to be sentenced for an offence against s 474.27(1) of the Commonwealth Criminal Code. That is an offence of using a carriage service to groom a person under the age of 16 years. The circumstances of this offence are very serious. The offender was made clearly aware at the age of the complainant and indeed he received a photograph of her. In the course of his use of the carriage service he made reference to having sexual intercourse with her, those references clearly suggesting that he was aware that she was a virgin. 2 The offender was thirty years of age, the complainant only thirteen. The offender had a relationship with another young girl, I will not name her in these remarks. Through her, the offender made contact with the complainant in this matter. She believed that the offender was seventeen years of age or so, was because of the way he spoke to her through text messages. His MySpace profile suggested that he was twenty-two and as I have already indicated, in fact he was thirty. The offence took place between 11 January 2008 and 25 January 2008 and mainly consisted of the offender text-messaging the complainant. A very large number of text messages was sent and it culminated in the offender driving the considerable distance from Manly Vale to Gwandalan, where the complainant lived, so that he could meet her. Fortunately, the person who he met was not the complainant but the complainant's aunt, armed with a baseball bat. She had obtained possession of the complainant's mobile telephone and whilst pretending to be her niece, had communicated with the offender. 3 A schedule of the text messages is tendered before me. Most of the messages represent messages sent by the offender to the complainant, the messages from the complainant to the offender having been deleted. The offender makes contact with the complainant around 11 January 2008 but it is not too long before he is turning the conversation to sexual matters. On 13 January, he asks for nude pictures of her. He says that he is horny, in fact, as I said, the offender was sent a picture of the complainant at some stage, although the circumstances in which it was sent are unclear. The photograph is of a very young girl, so there can be no suggestion that the offender was misled into thinking that she was a more mature teenager. The text messages are full of sexual suggestions as well as other more innocent conversations. He suggests on 14 January that they can cuddle in bed. He talks about the photograph that was sent and suggests that he might be in love with the complainant. An older person, a more mature person, receiving such messages would see them for what they were. But it is precisely the naivety and vulnerability of young girls such as the complainant which make it necessary for offences such as this and, (of course, make it necessary for offences such as the offender's) to be punished significantly, when they are detected. 4 Returning to the text messages, It can be seen that the offender asked to see her in a sexy bra, said that she has nice boobs, asks to kiss them. Later that same evening, he says that if she's ever horny, she can talk to him and the following day talks about performing cunnilingus. On 15 January, he says "don't tell anyone but I want to make love to you", he says that he will be gentle. He then makes a suggestion that he might, whilst having sex with someone else, think about the complainant. On the 16th, "Nothing wrong with us having sex, we take our time and enjoy it, I'd be very gentle", a few minutes later says "O" (presumably "no"), "I won't hurt you in any way, I love you". On the 17th, he returns to this theme of being gentle when he has sex with the complainant for the first time. "Nah, I'd be very gentle, I'll make sure you be okay, ask F I was with her first, I was gentle. It still hurt her a little bit." 5 Eventually the offender and the complainant make arrangements to meet. Those arrangements were that they would meet at a shopping centre, but before the offender could drive to Gwandalan, the complainant's aunt intervened in the way I described earlier. She changed the location of the meeting to outside her house. When the offender turned up, she confronted him. After the offender had driven away, she contacted police. They arrested him. 6 There is some subtlety in the Commonwealth Criminal Code when comparing the offence with which the offender has been charged, which has as one of it's elements the intention of making it easier to procure the recipient to engage in or submit to sexual activity, and the offence under s 474.26 which has as an element the intention of procuring the recipient to engage in or submit to sexual activity with the sender. In this case, the Crown does not ask me to sentence the offender on the basis that he intended, by driving to Gwandalan where the complainant lived to have sex with her on that occasion. Instead, I will sentence him on the basis that the offender intended to make it easier to have sexual intercourse with the complainant should he later form that intention. So, the travel from Manly Vale to Gwandalan shows the extent to which the offender was prepared to groom the complainant, that is, to make it easier to procure her for sexual activity should he later decide that that is what he wanted. The offender pleaded guilty to this offence, but it was a fairly late plea, coming only on the day his matter was listed for trial. Accordingly, in order to recognise the offender's willingness to facilitate the course of justice, I reduce the sentence I would otherwise have imposed by about ten per cent. The offender is, as I have mentioned a couple of times now, thirty years of age. He comes from a close and loving family, indeed, he is living with his parents at present. He did satisfactorily at school and commenced work. At the time of this offence, he was working at a Harvey Norman store in management. He has no previous convictions. I will sentence him, therefore, on the basis that the offender was, apart from this offence, a man of otherwise good character. The offender himself told police that he was attractive to underage girls. There are suggestions that the offender has had sexual activity with other minors, in particular, the reference to the person "F", and the person who had originally put the complainant and the offender in contact with each other. I wish to make it clear that the offender is not charged with offences involving sexual activity with other minors, and I can certainly not find that he did anything of the sort. The relevance, of course, is that what he said about such matters to the complainant is part of the grooming process. Once the complainant was told that the man she was communicating with, and had discussed sexual matters with was not seventeen as she thought, or twenty-two as his MSN profile suggested, but thirty years of age, the impact upon her was significant. 7 A victim impact statement prepared by the complainant's aunt sets out the changes which she has observed in the complainant. They are significant and entirely foreseeable. They are also highly relevant. I will bear them in mind when formulating the appropriate sentence to impose upon the offender. It is a fundamental rule in sentencing, indeed given statutory form in the case of Commonwealth offences, that the sentence to be imposed upon the offender is one which is appropriate to the circumstances of the offence. There is a significant age-gap between the complainant and the offender. The conduct that the offender engaged in was sustained, persistent and easily fulfils any definition of the word "predatory". The offences occurred over some twelve days, yet within that short time, the offender sent 265 separate text messages to the complainant. On 13 January alone, he sent 67 messages. It was the offender who raised the idea of having sexual intercourse with the complainant. Any response by the complainant has to be seen in the context that she thought she was communicating with someone of seventeen years of age. 8 The SMS messages bear out what the offender himself told police, he is attracted to underage girls. Rather than viewing the photograph making the offender realise just how young the complainant was, it seems to have been very much a part of the attraction that the complainant had for him. The offender was prepared to manipulate the complainant, telling her that he loved her and that he wanted her to be his girlfriend. Such expressions of emotion were likely, and did clearly have, a significant effect upon the complainant. Indeed, that is what they were designed to do. 9 The offender suggests, or at least Mr Rosser, who appeared on his behalf, does that he is remorseful and that he has good prospects of rehabilitation. I cannot find either of those matters in the offender's favour, there is simply no evidence one way or the other as to the likelihood of the offender rehabilitating himself. And as for remorse, it is difficult to accept that the offender really is sorry for what he has done if he is not prepared to admit it to others. He gave a version of events to the Probation and Parole service, then preparing a pre-sentence report which significantly understates the level of his misconduct. Indeed Mr Rosser, quite properly, said that he could not rely on what was said there. 10 General deterrence is a very important matter to be taken into account when sentencing the offender. So prevalent is conduct such as this that police have set up undercover operations where police officers pretend to be teenage boys and girls in order to flush out those who would commit offences such as these. In such cases, it can sometimes be thought that because there was no real underage girl that was the victim of any offence, such offences are less serious because of that circumstance. This is certainly not a case where that consideration applies, in particular, there was a real, young girl at the end of those SMS messages who really did believe that a seventeen year old boy loved her and who really was, it would seem, prepared to have sexual intercourse with him and who has really been significantly affected by the revelation that she was simply being used by an adult man for his own sexual satisfaction. 11 There is authority in the cases provided to me, in particular one from the Victorian Court of Appeal, R v Gadgar [2000] VSCA 268, where this is placed into the category of those where general deterrence is of such importance that less weight is given to prior good character than would otherwise be the case. I accept that is a correct statement of the law for the reasons I have identified earlier. 12 The Crown helpfully provided me with a number of cases where offenders were sentenced for offences such as that faced by the offender today. The Crown also provided me with sentencing cases for the more serious form of this offence with appropriate allowance, of course, because of the increased penalty for that offence and the subtle but important difference between relevant intention for both offences. I have found those other cases helpful as well. They have been of great assistance to me in determining the appropriate sentence to impose upon this offender. It is clear that no sentence other than one of full-time custody is appropriate in the present case. Indeed, Mr Rosser quite properly conceded that at the beginning of his submissions to me. I am satisfied that, particularly in the light of comparative cases to which the Crown referred, a significant sentence of imprisonment is required as well. The sentence I impose is as follows. The offender is sentenced to imprisonment for two years and six months, commenced today, 4 June 2009. He is to be released after serving one and a half years upon entering into a reconnaissance himself in the sum of $100 with the following conditions. He is to be of good behaviour for the remainder of his sentence, he is to accept the supervision of the Probation and Parole Service. ********** 08/06/2010 - Typographic error - - Paragraph(s) 1 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.