District Court New South Wales Medium Neutral Citation: R v AYOUB [2011] NSWDC 133 Hearing dates: 28 July 2011 Decision date: 28 July 2011 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Sentenced to imprisonment for a period of 3 years. Order that he be released at the expiry of one year upon entering into a self recognizance of $100 to be of good behaviour for 2 years from the date of release Catchwords: CRIMINAL LAW - Sentence - Using a carriage service to procure a person under 16 years of age for sexual activity - Continuing mental health issues Legislation Cited: Commonwealth Crimes Act Category: Sentence Parties: The Crown Joseph Ayoub Representation: Mr Robert Webb - The Offender The Director of Public Prosecutions (Cth) Voros and Associates - The offender File Number(s): 2010/00282711 SENTENCE 1HIS HONOUR: Appearing for sentence today is Joseph Ayoub. He has pleaded guilty to an offence of using a carriage service to procure a person under sixteen years of age for sexual activity. When I sentence him for that matter he asks that I take into account, under s 16B(a) of the Commonwealth Crimes Act , a closely related offence of using a carriage service to transmit indecent communications to a person under the age of sixteen. I say closely related because these indecent communications were transmitted as part of the offender's activity in committing the first offence. 2Things all started on Wednesday 11 August 2010. There was a young boy fourteen years of age getting the bus home from school. He had apparently been on detention. The offender was also on the bus. He sat down next to the boy and started to speak to him. The offender asked the boy for his phone number. The boy said he did not know it but the offender got the boy to send him a text message which revealed the number from which the text message was sent. The offender said "now I have got your number" and he got off the bus. Later that evening the fourteen year old boy received three text messages from the offender, asking him to meet him. Fortunately the young boy must have spoken to his parents or at least someone in authority because the child exploitation internet unit of the police became involved. They were able to identify the offender and communications then took place between a member of the police force and the offender. The member of the police force was posing as the fourteen year old boy. It is important to note that the first communication with the offender on 18 August was a communication from the police to the offender. It is entirely possible perhaps that were it not for that communication these offences would not have been committed. The communications which did ensue involved voice communication, SMS and sending of multi media messages. In those messages the police officer, assuming the identity of the fourteen year old boy, makes it clear that the offender is communicating with a fourteen year old boy. Despite that, the offender makes highly indecent suggestions to what he thinks is a fourteen year old boy; sends photographs and videos of himself and perhaps most importantly seeks to meet this boy. He says that he wants to meet the boy, they could go to the movies where the offender could take him into the toilets and suck him off. They even talk about the time that this would occur, the offender saying: "What about next Wednesday"?; that he could say to his mother that he was an old friend from school; and he was going to stay over with this friend after the movies. 3I am satisfied beyond reasonable doubt that the offender did intend to meet the young boy. I am also satisfied beyond reasonable doubt that if that had occurred the offender would have attempted to engage in sexual activity with that boy. All of those communications occurred on the evening of Wednesday 18 August. 4On Monday 23 August, again posing as the young boy, the officer sent two further text messages to the offender but no response was received. At lunch time that day the offender was arrested. 5As far as the seriousness of the offences is concerned there are of course factors which point both ways. In favour of the offender is the fact that the first communication on 18 August came from police, but working against him of course is the circumstance that this is not a case where the offender simply obtained sexual gratification through his communications with what he thought was a fourteen year old boy. He, as I have said earlier, did intend to meet him. Fortunately there was no fourteen year old boy involved, (apart from the one who the offender met on the bus) and so the actual harm caused by the offender's conduct is significantly minimised because of that. But the offence does demonstrate the dangers which are posed by people such as the offender who use telephones and other forms of communication to procure young people for sexual activity. 6The offender has some significant problems, indeed he could not even understand the caution that investigators offered to him upon his arrest. They therefore did not interview him, a completely appropriate decision in the absence of the offender understanding what they had said to him. The offender is a person who has been diagnosed as suffering from schizoaffective disorder; an illness characterised by delusional hallucinations, disorder of thought form, difficulty processing information and bizarre behaviour. The offender has been treated over the years and supervised by Probation and Parole Service on many occasions but not much has been achieved. For example, Dr Kavanagh of the Croydon Mental Health Service has been treating the offender's mental health issues in the community since 2007 but the Probation and Parole pre-sentence report reveals that the offender's continued engagement with their Service would be futile due to the offender's historically poor response. Similarly the offender has responded poorly to supervision by the Probation and Parole Service and indeed he was on a s 9 bond at the time of these offences. 7The offender not only suffers from the mental illness that I have mentioned but he is also developmentally delayed. He appears to have gone to a special school. His mother and father appear to suffer similar issues. 8The offender's criminal history was put before me. As I mentioned to the Crown at the time, it is difficult to tease out of the lengthy document that I was given offences that the offender has committed, given that within the document there are a number of references to matters that had been dismissed or withdrawn. But there does not appear to have been any offence involving sexual assault for example on the offender's criminal history, although there was a matter where the offender has used a carriage service to commit an offence, those matters apparently having been dealt with under various mental health provisions. 9It is clear that a sentence with a substantial component of general deterrence should not be imposed upon the offender because of his psychiatric conditions. But as Mr Webb, who appears for the offender, acknowledged, personal deterrence remains of fundamental importance. The problem is that efforts to date would suggest that Mr Ayoub is a person who is difficult to deter. That does not mean that courts simply give up. What it does mean is that the courts must fashion orders with some precision and care in order to ensure that the offender knows that he has done the wrong thing, knows that he will be punished if he does it again and knows also that he will be punished if he does not comply with orders designed to reduce the prospect of him committing further offences. 10Mr Webb submits that these offences appear to have been committed while the offender was using drugs and that therefore if orders can be fashioned to reduce the prospect of the offender using drugs it is unlikely that offences of this kind will be repeated. The Crown makes the submission that the offender did not give evidence and therefore there is no sworn evidence that the offender was using drugs at the time of the offence. I note, however, that the offender told Dr Furst of his drug use, saying that he was pretty high at the time. The offender is not a sophisticated person who would be able to reason that by telling Dr Furst he was using drugs it may in some way be better for him. I accept therefore that the offender was using drugs at the time of this offence and that together with his mental issues meant that he was less able to respond appropriately to impulses which he felt. 11All sentencing is difficult but some sentence matters are harder than others. Many of the harder sentencing exercises involve mentally ill offenders who present some danger to the community. I hold out very little hope that the offender will be able to put his criminal ways behind him, although, given his criminal history to date, the chances are good that offending of this particular kind will not be repeated. 12Mr Webb submitted that the offender's time in custody to date, some eleven months, was enough and that he should be released immediately. I do not agree. The offender will need to spend further time in prison, although not much. The offender, as I mentioned earlier, must be made aware that committing offences of this kind leads to custodial sentence and that it is not the case that he can simply come before the court, rely on his mental illness and find himself released. On the other hand, as I mentioned, there is a need for proper reflection to be made of the sad condition that the offender is in. I therefore propose to impose a sentence which will consist of a relatively short period in custody followed by a recognizance release order which will have the effect of the offender being at liberty in the community subject to being returned to custody in the event that he breaches the recognizance release order. 13A treatment plan has been prepared by Dr Furst. It appears to have been produced with some care. I therefore propose to make the recognizance release order subject to the offender complying with the treatment plan and the addition of one further order relating to urine testing. 14The offender is sentenced to imprisonment for three years. He is to be released on a recognizance release order after serving one year in custody. That is to date from 23 August 2010, so he is to be released from custody on 22 August 2011. The conditions of his recognisance release order are that he enter into a good behaviour bond, himself in the sum of $100, and that he comply with the treatment plan set out by Dr Furst which, for more abundant caution, I will read. "The offender is to be placed under the care of the Croydon Mental Health team, 24 Liverpool Road, Croydon or other such suitable local mental health team, depending on the location he resides post release with a view to ongoing case management by the service. The offender is to accept a case manager and attend appointments with him or her at a place and frequency as directed, probably fortnightly in the first instance at the Croydon Community Health Centre or his local mental health team. The offender is to accept Dr Sophie Kavanagh or delegate as his treating psychiatrist and is to attend appointments with her at a place and frequency as directed, probably monthly in the first instance. The offender is to accept medication as prescribed by his treating psychiatrist. He is to remain abstinent from drugs of abuse and accept the recommendations for drug and alcohol counselling as directed by his case manager, including consideration of a residential rehabilitation facility. The offender is to undergo regular urine testing and a breach of the order that he remain abstinent from drugs of abuse is to be regarded as a serious breach of the recognisance release order. The offender is to engage in psychological therapy to address his past childhood traumas and sexual offending. He is to accept a recommendation to engage in other psychological vocational educational or social activities as deemed necessary by his case manager." ********** 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: 26 September 2011