R v Hicks [2015] NSWDC 67

District Court New South Wales

Medium Neutral Citation: R v Hicks [2015] NSWDC 67 Hearing dates: 02 February 2015 Date of orders: 02 February 2015 Decision date: 02 February 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order Catchwords: CRIMINAL LAW - Sentence - Use a carriage service to groom a person under the age of 16 - Use a carriage service to transmit and indecent communication - Possess child abuse material - Unusual factual features Category: Sentence Parties: The Crown Peter Hicks Representation: Counsel: Mr Moir – Offender

Solicitors: Commonwealth Director of Public Prosecutions File Number(s): 2013/168708

Judgment 1. HIS HONOUR: The offender Peter Hicks admits that, albeit a while ago, he had a sexual interest in underage girls. This interest led to him committing three serious offences. The first was of using a carriage service to groom a person under the age of 16. That is a commonwealth offence carrying a maximum penalty of 12 years' imprisonment. The second was using a carriage service to transmit an indecent communication. That is another commonwealth offence with a maximum penalty of seven years. And the third is a New South Wales State offence of possessing child abuse material. 2. Mr Hicks attempted to justify his conduct by saying that these offences were all committed at a time when he was working long hours and not seeing much of his partner whose shifts did not coincide with his. He also said that work was stressful. The connection between having a sexual interest in young girls and being stressed at work and not seeing much of your partner is not one which is immediately obvious to me. 3. These offences came to light when the offender began a chat with an adult by the name of Lachlan Hawkins. During these chats Mr Hawkins became aware that Mr Hicks, the offender, had a sexual interest in young girls. For example, he became excited in these chats and was persistent in obtaining details or photographs of young female friends of Mr Hawkins. Very commendably indeed, Mr Hawkins both stopped communicating with the offender and reported these matters to police. What happened thereafter has to be considered carefully because there are a number of aspects of this case which make it different from most of the cases of this kind which come before the Courts. 4. The first thing which is a bit unusual is that the first communication which led ultimately to the offender committing the first two offences I have spoken about came from a police officer. He, of course, was pretending not to be a police officer. He said that he heard from Mr Hawkins that the offender had an interest in young girls and suggested to Mr Hawkins that if he wished to pursue that interest, he should contact his niece. Thereafter the offender did that. Over the course of a number of months the offender communicated with a person he believed to be a 13-year-old girl named Gemma. In fact, of course, that person was not a 13-year-old girl but a police officer pretending to be a 13-year-old girl. 5. The offender sent more than 200 text messages, many of which were inappropriate and of a sexual nature. The offender persistently asked for sexy or "norty" pics to be sent to him. He engaged in inappropriate conversations with the person he believed to be a 13-year-old girl including asking her whether she had ever had sex, whether she had pubic hair and what she had "done to a guy before". He told her that he would "love to be ur first". He asked whether she would have sex with another girl, whether she would show him her breasts and told her he would like, and he did not use these terms, to perform oral sex on her. At one stage he asked whether she would expose her breasts to him if they met "next weekend". 6. What I have described so far clearly amounts to the offence of using a carriage service to groom someone under the age of 16. Fortunately, there was no young girl who was groomed, but of course the offender did not know that. The communications continued until at one stage the offender sent a text containing a photograph and asked, "Does ur pussy look like this?" Once more he made a request that they meet, saying, "Would you like to meet me on a weekend?" He was arrested soon afterwards. Sending the photograph forms the basis of the second count on the indictment, sending indecent material. 7. When he was arrested, the offender had a mobile phone on him. When police examined it they found a number of photographs amounting to child abuse material. There were 11 images. Seven of them depicted children with no sexual activity, one showed non-penetrative sexual activity between children and adults, two showed penetrative sexual activity involving either children and adults or both children and the last, a single photo, was the most serious, depicting sadism or bestiality. 8. There are a number of features as I mentioned earlier that make these offences unusual. The first is that contact between "Gemma" and the offender was initiated by the police. Secondly, and this is conceded by the Crown, at times there would be no communication between the offender and Gemma for a week or so, but it was Gemma, that is, the police officer pretending to be Gemma, who re-initiated contact between them. And the third thing, of specific reference to the third count concerns, the very small number of images stored on Mr Hicks' mobile phone. 9. All offences of the kind which for which Mr Hicks has to be sentenced are serious, but they are not all of the same seriousness and those three particular features I have just identified must be borne in mind in assessing both the objective seriousness of this offending and also the offender's moral culpability. 10. The offender lives with his partner, his partner's mother and one of his step-children. They have, according to him, a stable and supportive relationship. His partner gave evidence in support of him in court today. The offender used to work in a car service centre, but lost his job in 2013 and has not been employed since. He has been receiving treatment for depression and anxiety from a psychologist and although he has had plans to see someone down in Sydney for the purposes of obtaining treatment regarding these offences, he has not begun to do so, he says because it was necessary for these Court proceedings to be finalised before treatment could begin. 11. The offender is 44 years of age with no prior criminal history. He has been assessed by the Probation and Parole Service who, as is commonly the case, have conducted an actuarial assessment of his risk of re-offending. That placed him in the low risk category relative to other male sexual offenders. His prospects of rehabilitation would thus appear to be at least reasonable. 12. He pleaded guilty to each of these offences although not before being committed for trial to this Court. He was not arraigned until the first day of his trial on which day his pleas of guilty were entered, but he had indicated at various times to the prosecution since being committed for trial his intention to plead guilty. Although his willingness to facilitate the course of justice was not the same for all three offences, rather than dividing up a discount specific to each offence, I will reflect the offender's willingness to facilitate the course of justice by imposing in each case a sentence which is 15 per cent less than it would otherwise have been. 13. The facts suggest that there is at least the possibility that the grooming offence would not have continued were it not for the police operative contacting the offender after a period where there was no communication. It is possible also indeed that it would not have come about in the first place were it not for that original telephone call from the person pretending to be Gemma's uncle. 14. Nor is this a case where the offender was one of those dangerous people obsessed with child sexual assault matters who sits in front of a computer communicating constantly with young girls, grooming them, and downloading child pornography at the same time. The offender's conduct, while serious as I have mentioned, has a number of unusual features which must of course be reflected in the choice of appropriate sentence. 15. Of course, the offender needs to be punished for what he has done and there needs to be an element of general deterrence built into any sentence imposed upon him. Those two factors require real punishment. The Crown says that only a full-time custodial sentence is appropriate. I have given anxious consideration to whether I should accept that submission. I am not certain that it is an accurate reflection of sentencing principles. Ordinarily, cases of this kind could only result in full-time custody being imposed, but as I have attempted to demonstrate and as Mr Moir more importantly has persuaded me, this is not an ordinary case because of the features I have already spoken about. 16. Of course, any alternative to full-time custody would be irrelevant if the choice of the length of sentence made such alternatives unavailable. Mr Moir concedes that a custodial sentence is required, but seeks to persuade me that it should not be served by way of full-time custody. I agree that a custodial sentence is required and I have determined the appropriate length of the overall sentence that I will impose for these offences. That is likely to be less than two years and accordingly I consider it appropriate, to refer Mr Hicks for his assessment as to whether he is suitable to serve the sentence of imprisonment by means of an intensive corrections order. 17. Accordingly, I remand Mr Hicks for sentence at 10.00 am on Friday 8 May 2015. I will order that Mr Hicks is assessed as to his suitability to serve a sentence by means of an intensive corrections order. Bail is continued for that purpose.