District Court New South Wales Medium Neutral Citation: R v RAYFIELD [2017] NSWDC 174 Hearing dates: 16 June 2017 and 20 June 2017 Decision date: 20 June 2017 Jurisdiction: Criminal Before: Bright DCJ Decision: Sentenced to a term of imprisonment of 2 years and 7 months. To be released on a recognisance after 1 years and 4 months. Forfeiture of electronic devices to Commonwealth. Catchwords: CRIMINAL LAW – Sentence - use a carriage service to groom a person under 16 years of age for sexual activity pursuant to section 474.27(1) Criminal Code (Commonwealth) Legislation Cited: Criminal Code Act 1995 (Commonwealth) Crimes Act 1914 (Commonwealth) Cases Cited: R v Fuller [2010] NSWCCA 192 R v Asplund [2010] NSWCCA 316 R v Bozinovski [2009] NSWDC 200 R v McKenna [2015] NSWDC 250 R v Telfer [2016] NSWDC 421 R v Costello [2011] CA 39 Rampley v R [2010] NSWCCA 293 R v Gajjar [2008] VSCA 268 R v Shepheard [2008] ACTSC 116 Category: Sentence Parties: The Crown Alan Rayfield - Offender Representation: Counsel: Mr Preece- Offender Solicitors: Commonwealth Director of Public Prosecutions - Crown File Number(s): 2016/00304543001 Judgment 1. Alan RAYFIELD (D.O.B. 13/6/1957, 60 years) appears for sentence in relation to one offence of use a carriage service to groom a person under 16 years of age for sexual activity pursuant to section 474.27(1) Criminal Code (Commonwealth). 2. The maximum prescribed penalty for this offence is 12 years imprisonment. 3. The offender pleaded guilty to this offence at Newcastle Local Court on 15 February 2017 and was committed to the Newcastle District Court for sentence. FACTS 27 July 2016 1. On 27 July 2016, Alan RAYFIELD (the offender) was using a popular internet chat room 'ChatIW' utilising the username 'AlanJon'. At the same time, investigators from the NSW Police, posing as a 14 year old girl from Sydney (the AOI), entered the same chat room. The offender began to chat with the AOI. 2. The offender asked the AOI in the online communication "are u really one four" and the AOI responded "yeah". The offender then asked the AOI if he was "a bit old to say hi or more" and said he lived on the NSW Central Coast. He then said "I know I am way older to try flirt with u anyway" and that "I get a lil risqué and nawty". Later in the chat the AOI again stated that she was 14 years old. 3. The offender asked the AOI what colour her eyes and hair were, and whether her mother knew that she chatted to older guys online. He then told the AOI "I need ice on my lap"…"to stop him from being naughty as we chat" and "I am more than lumpy in my shorts". Upon being asked by the AOI what he meant by that, he replied "though i guess ur not shy playfully…and masturbate when u feel a lil horny". The offender then asked the AOI "u don't get horny?" and told her that he was "stiff n horny" and "he is awake for u". He also asked the AOI "are u very edible…could I have u for dessert…u know guys like to like and taste girls". The offender told the AOI that he owned a 31ft yacht and that the AOI could "lay on [his' deck". When the AOI told the offender that he seemed nice, he responded "its not like my ol fella has been nice…being naughty as we chat". 4. During the chat the offender provided the AOI with his Skype username ('alan sunset'). The AOI provided her Skype details. A short time later at approximately 5.53pm, the offender sent a friend request to the AOI using Skype, which was accepted. The offender and the AOI exchanged messages on Skype. 28 July 2016 1. On 28 July 2016 the offender sent the AOI a message using the Skype networking site and they engaged in another chat session. The offender asked the AOI "how old are u again?" and was again informed that the AOI was 14 years old. The offender asked the AOI if she had watched "playful cams on the net" to which the AOI responded "yeah…is that wot u want". The offender responded "I am a bit old for that with u don't u think…Was thinking more u would like to feel a tongue on u". The AOI told the offender that she had never done anything like that before and the offender replied "well at 14 I can imagine that". 1 August 2016 1. The next chat session between the offender and the AOI occurred on 1 August 2016 using Skype. The offender was again informed of the age of the AOI. He informed the AOI that he was 58 years old and stated "U know I am way older don't you". He subsequently stated "your 16 I seem to think" to which the AOI responded "no im 14 silly…is that ok". The offender responded "Yes…as long as ur comfy" and then stated "I don't want to have u feel uncomfortable…ur young an still maturing…some girls ur age can be very open an playful…but I never assume either". 2. The offender engaged in sexually explicit conversation with the AOI, asking her whether she had engaged in masturbation or watched pornography, and if it made her feel aroused. When the AOI responded that she had seen a video of a "guy and girl doing it" the offender responded "Doing it is different to playfull as in oral getting ur pussi licked"…"wen ur older I hope u would like a tongue to take over n lick n explore n taste u". The AOI asked if that would feel good, and the offender responded "I know I have loved to lick n make a girl cum from oral". 3. Later during the same chat the offender asked the AOI "Should I come shower or bath you lol to relax u". The AOI said she would probably have a shower not a bath, to which the offender responded "has ur shower room for 2". He continued to chat with the AOI about having a shower with her, whether she would be shy undressing and being naked in a shower and whether she would be nervous to "see the guy get umm…aroused". 4. During the same chat the AOI asked the offender what he looked like and he told the AOI that he was 5ft 6inches tall, with hazel eyes and light hair and that he weighed approximately 69kgs. The AOI told the offender that she was not that tall, that she had short brown hair and she was kind of thin, about 45kgs. The offender responded "Ur cute n sweet an at 14..The most umm shy/an not sure girl I have chatted to". 5. The offender ended the chat by stating "I gtg…my wife would kill me if caught chatting let alone flirting to u…so would ur MUM". 2 August 2016 1. At approximately 4:10pm on 2 August 2016 the offender again engaged in a Skype conversation with the AOI. During this conversation he again engaged in sexualised conversation, asking the AOI if she ever felt horny, and if being massaged would make her feel horny. He then said "how would u feel about a guys hands caressing your legs n inner thighs". The AOI responded that she had never done anything like that before. The offender responded "Depends…it can…Would u lay on ur tummy braless an just ur cute or sexy knickers on" and described giving her an erotic message. 2. Later during the same chat the offender asked if the AOI was in her school uniform. He then offered to help her get changed and described his hands caressing her stomach and unclipping her bra. The AOI told the offender "I don't mind u telling me wot u want to do tho" and the offender responded "Next time we chat we can explore a bit further ok". 9 August 2016 1. On 9 August 2016 the offender sent a Skype message to the AOI and they engaged in another chat conversation. The offender asked for a picture of the AOI in her pyjamas and asked her what she wears underneath them. He then asked "Would u slap my face if my hands were to swirl up ur sides and to cup ur bare warm breasts". The AOI said "no why wud i". He then asked if the AOI wanted him to massage her and said "I would straddle ur thighs and swirl hands on ur cute buttocks and ur back". They then discussed meeting in a motel room for a massage before the offender stated "your too young to come and meet a naughty guy my age for a massage". 2. The following exchange took place on Skype: AOI: "like u say u wanna do stuff with me but then say im too yung – im 14 not a little girl" Offender: "i know…but the law also says what age u should be…and what is ok" AOI: "wot u mean" Offender: "the age of consent is around 16" AOI: "so I wud have to wait like 2 years?" Offender: "yep…thats the law…but you can chat and the like…if that's ok for you" 2 September 2016 1. On 2 September 2016 the offender and the AOI again exchanged messages using Skype. The chat began at approximately 2:40pm and concluded at approximately 5:00pm. During the course of this chat the offender and the AOI sent a photo of themselves to each other. The offender said "should I behave n not notice ur braless in that top". 2. The offender talked about his yacht and asked the AOI if she would go sailing with him, asking "what would u wear in the cockpit with me". He then talked about touching the AOI under her clothes whilst they are on his yacht. 3. Later during the same chat, the offender said "can u sneak me in ur bedroom". The AOI asked "wat wuld we do??" and the offender said "I could relax u with a massage…ur boobs and between your thighs". When the AOI responded that she had never had a massage like that before, the offender said "I know…so that's a lil nawty of me don't u think". The offender then said "would you thighs open a bit to let my hand massage your tasty lips and clit…to see if u like it a bit". The AOI said that she would be nervous about that, and didn't want to get into trouble. 4. The offender said he would do that with her but "only if [she] wanted" 5. The offender continued to engaged in sexualised conversation with the AOI, describing his erect penis, and saying he was "horny" and telling the AOI "I could come if u want…in my pants". He also told the AOI "cos at 14…u dont need a dick in u to make u happy and cum" "I am sure u know dicks make babies…tongues make cum and fun". 6 September 2016 1. On 6 September 2016 the offender and the AOI engaged in an online chat via the Skype platform. He asked the AOI if she would be shy to undress her, and then described massaging her legs, thighs and touching her vagina. He asked her to describe her underwear and whether her pubic region was shaved. He then described performing oral sex on the AOI: Offender: "To kiss that cotton that covers where I could lick n taste u" AOI: "omg wud u really want to lick me there" Offender: "Well if so close would u not want to feel a tongue tip lick an explore n tease your wet pink lips" … Offender: "I would caress across your nickers n tease where u feel sweet n wet". … Offender: "How are u feeling now…would u like ur pussi licked n kissed AOI: "i guess so if u think it wud feel nice cause i trust u … Offender: "Would u like my hands to slip those nickers down n rub gently ur buttocks as lips press n kiss ur soft furr n tingly pussi" AOI: "wud u really want to do that with me?" Offender: "It's not Wat I want…it's Wat u feel comfy with" 1. Later during the same online chat the offender returned to sexually explicit conversation, stating "would u like to straddle my fave [sic] n rub that warm pussi n furr on my toung [sic] n mouth". The AOI responded "u mean ur face" and the offender responded "yes…U control where i lick n taste as u grind an tease my lust". He later wrote to the AOI: "How's those sexy buttocks I would rub n squeeze them gently for u as u wiggle n tease that sweet mound onto my face". 2. Towards the end of the online conversation the offender activated his webcam and sent a short video of himself to the AOI. 8 September 2016 1. The offender and the AOI engaged in a Skype conversation on 8 September 2016 and during that chat the offender provided the AOI with his mobile phone number. 2. The following online communication took place: Offender: "Your so sweet n young…I never know if your just coy or like to play innocent" AOI: "coy?" Offender: "Coy…sorta pretends to not know much I guess" … Offender: "I am way older an I don't want to feel u think I pressure u or groom u as they say" Offender: "Ur aware of men grooming teens to try have sex arnt you" … Offender: "Ur not a kid…your a young lady…an teens can be hard sexually also" 1. The offender and the AOI continued conversations of a sexual nature and the offender asked the AOI whether her school friends were virgins and what time her mother would be home. He then wrote to the AOI: "Ur mum might not be to happy that I caressed my hands up the back or your legs n thighs though". 2. At 4.23pm the AOI called the offender and engaged in a phone conversation which was electronically recorded. 3. The following conversation took place: Offender: "…I mean, I try to be as open as I can. I, I don't want to mislead and, and as I say, I don't want to be seen to be grooming you either when, like, say 14, it, it's young but I've spoken to 14 year old's before. Some are, some are very much wilder than you" AOI: "Mmm" Offender: "Very, very deep, more than streetwise. Oh, but then you don't really know who you're talking to unless you see a, like, a video or whatever or a, or a can [sic]." … Offender: "Yeah. I mean, then there's a lot of people who just want to get into your pants and, but that, that's wrong. I mean, yeah, it's, yeah, I still rather respect you as a person and as a woman than, than just think, oh, you're just a, a toy to get off or the like". AOI: "And that's why I trust you cause it's like you care about me and stuff". Offender: "Mmm, well, I do. I mean, I'm a dirty old man, I guess, but by the same token…stuff's about passion. If you just want a quick root well, I mean, that's, hopefully, that's not how you want to be in life". 15 September 2016 1. At approximately 5:46pm on 15 September 2016 the AOI telephoned the offender on the mobile number that he had provided to her on 8 September 2016. They had a short telephone conversation during which the AOI told the offender that she would be visiting her father at Caves Beach after the school holidays. 20 September 2016 1. On 20 September 2016, the offender and the AOI engaged in an online chat conversation using Skype. The offender and the AOI discussed the fact that the offender would be in Sydney for business and the offender asked the AOI if she was "allowed in town on your own". He then said "what would u like, if i come to syd…or would it be better when you come to Caves Beach." The offender and the AOI then discussed the fact that they had not told anyone about their online conversations. 22 September 2016 1. At approximately 4:30pm on 21 September 2016, the offender sent the AOI a message on Skype. The AOI and the offender then engaged in an online conversation. During that conversation the offender initiated sexually explicit conversations with the AOI by asking "would u trust my hands to massage you" and "Are those legs exposed n easy to massage today". The offender referred to his erect penis by stating "do u mind that I crack a fat as we chat on an off" and asked "do u get a lil aroused as in bit tingly or damp or even nipples stiffen with thought of being touched". When the AOI said yes, he asked if she masturbated, and encouraged her to experiment, asking the AOI "Do u just rub n touch, or do u slip a finger inside". 2. Later in the conversation the offender discussed oral sex with the AOI and said "u can still b a virgin an orgasm as much as u like". At the conclusion of the online conversation the AOI called the offender on the mobile number previously provided by him and they had a phone conversation that was electronically recorded that lasted approximately 10 minutes. 3. During the telephone conversation, the following exchange took place: Offender: "…I mean, I, I know that you're on the young side and that, desperate things that you hear in the news and whatever, I just know that I, you know, you really should be respectful and careful as well". … Offender: "And, there are laws and you're young and, you know". 26 September 2016 1. At approximately 1:30pm on 26 September 2016, the AOI sent the offender a message using Skype. They discussed the fact that the AOI would be visiting Caves Beach in a couple of weeks. 2. The offender then described giving the AOI an erotic massage and told the AOI that he had an erection. He told her that he was masturbating and asked if she was also masturbating. He described touching the AOI on her genital area and said "It's never the wrong time wen u feel horny or aroused lol". 27 September 2016 1. At approximately 4:39pm on 27 September 2016 the offender sent the AOI a message on Skype. During this chat the offender discussed his penis, asked the AOI if she thought "it's nice that he pops out in our chats" and suggested giving it a name. He asked what the AOI was wearing and asked if she was wearing underwear or a bra. He then described touching her breasts, slipping his hand under her skirt and slapping the AOI on the buttocks. 28 September 2016 1. At approximately 5:15pm on 28 September 2016 the offender again sent the AOI a message on Skype. He described taking the AOI sailing with him and made suggestive comments about being on the boat alone with the AOI and giving her a massage. He also suggested undressing her and touching her breasts and said "U could press back onto me n see if anything pops up as hands caress n feel your firm breasts an those nipples that have woken from palms touch". 29 September 2016 1. At approximately 4:20pm on 29 September 2016 the offender sent the AOI a message on Skype. They engaged in an online conversation that concluded at 5:59pm. 2. During that online conversation the AOI called the offender on his mobile phone and they had a short telephone conversation. They then continued their online conversation, and exchanged messages about meeting in person when the AOI was visiting Caves Beach. The offender asked the AOI what she likes eating: Offender: "What do you like to eat" AOI: "hamburgers" Offender: "there yummy…like you hehe…Macca's or other?" AOI: "maccas…:D" Offender: "Should I find a drive thru ;)" AOI: "sure (emoji omitted)…which one??" Offender: "I guess near caves beach mayb" … Offender: "What burger do u like from Macca" AOI: "cheeseburger". 4 October 2016 1. On 4 October 2016, at approximately 4:50pm, the offender and the AOI used Skype to engage in an online conversation. They discussed the AOI traveling to Swansea for a holiday the following week. The AOI told the offender she would have a "free day on wedesday [sic] to go to caves beach :D". The offender then asked the AOI if she knew whether there were any shops or places to eat at Caves Beach. The AOI replied that she hadn't decided yet what to do. The offender replied: "That's ok…do u mean about coming…or mayb meeting". The AOI said she might be a little shy, but it "cud be fun to meet up tho". The offender replied "It would be nice, how do u define fun though lol…Should I bring cheeseburgers". He also asked the AOI if she liked fries, and what she would like to drink. The offender and the AOI agreed that the AOI would text the offender when she had arrived at Swansea. 2. Later in the online conversation the offender again engaged in sexually suggestive chat with the AOI, describing how he would put her over his knee and spank her buttocks and "softly slap an caress the back of ur legs". He also told the AOI that he had an erection. 6 October 2016 1. At approximately 4:15pm on 6 October 2016 the offender and the AOI engaged in an online conversation using Skype. The conversation concluded at approximately 5:42pm. The offender initiated and engaged in sexually explicit chat with the AOI. He asked the AOI was she was wearing and if she was wearing a bra. He described undressing the AOI and touching her in a sexual manner: Offender: "Your eyes smile an I feel a lil tense but rub those thighs n gently press at your shorts n feel ur warmth n desire" AOI: ":)" AOI: "so wot u doin then? Offender: "Is that tie for your short inside or out for me to undo" AOI: "it inside" Offender: "U feel hands roll the shorts at your wait n lips pull that bow tie to undo" AOI: "yeh" Offender: "Would u slide from my knees n let hands roll those shorts to the floor for you to step out of" AOI: "k" 1. The offender asked the AOI what kind of underwear she was wearing. He then described performing oral sex on the AOI: Offender: "Lips would pull those nickers a bit lower to near your clitty" AOI: "wow omg" Offender: "Kisses tease above your mound n soft bytes tease n delight ur desires" AOI: "ok…must feel amazing: Offender: "Do u mostly trim…or shave where u feel lips press n kiss" AOI: ""ummm no" The AOI asked the offender what he was doing while they were chatting. The offender told the AOI that his penis was erect: AOI: "wot u doin tho?" … Offender: "Wat do u imagine I am doing as I am suggestive n caress your cute buttocks an nibble ur tummy" AOI: "lol I dunno wot guys do :D" … Offender: "While your clitty awakens n tingles things swell up here an feel nice" 1. The offender then told the AOI that he was masturbating and asked if she liked to touch her genital area. He also asked her if her nipples were erect. The offender then again described performing oral sex on the AOI: Offender: "Wat do u think I want" AOI: "mmmm I dunno" Offender: ":P Your so sweet you know" Offender: "I could eat u know if I layer u back across ur bed" AOI: "mmm wen u wanna do this tho?" Offender: "Is chat…I could eat u now n pull those nickers down n lick till u cum on my tongue" AOI: "k" Offender: ":P (kiss)" 1. Later in the online conversation the AOI and the offender again discussed a possible meeting at Caves Beach. The AOI said that she could text the offender if he was interested in meeting. The offender replied "wat are you comfy with…would u like to catch up…or wait till I am in Syd". When the AOI asked if the offender could come to Caves Beach he replied "I should be able to yes..have u a time in mind for wed". When the AOI said that she trusted the offender he replied "I am ok with that…it lunch an talk..nothing more ok". The AOI and the offender tentatively arranged to meet at 11am on Wednesday 12 October 2016. After discussing details about arranging to meet the offender stated: "I need to zip up an go home…have u some ice to make him settle down". The offender confirmed he was referring to his penis being erect. 11 and 12 October 2016 1. On 11 October 2016, the AOI sent the offender an SMS message using the number he had previously provided. The AOI told the offender that she was free "tomorrow" and the offender replied "wat would u like to do (emoji omitted) up to you ok" and "Would u like cheeseburgers n coke..i can leave wrk for a bit". They arranged to meet at 11am the following day. 2. At approximately 9:52am on 12 October 2016 the offender sent the AOI an SMS message. The AOI and the offender confirmed that they would meet at the park near the Caves Beach Surf Club. The offender indicated that he would arrive at approximately 11.15am and told the AOI he would bring cheeseburgers and coke. 3. At approximately 11am on 12 October 2016, the offender attended Caves Beach car park in a white Kia SUV NSW registration YBW 21U. He exited from the vehicle and began to walk around the car park. A short time later he was arrested by NSW Police. The offender told officers that he was there to meet a girl "who was supposedly going to be at the beach". He then told officers that he thought she was aged "16, 18 something like that". He then said she was "possibly younger…15, 16". 4. Police searched the offender's vehicle and found a McDonald's Restaurant takeaway bag that contained 3 cheeseburgers and other food items. 5. The offender was conveyed to Belmont Police Station. He was given the opportunity to speak to a legal representative. He was offered the opportunity to participate in an interview with police however declined to do so. 6. The court is required to sentence the offender in accordance with Part 1B of the Crimes Act, 1914. The sentence must be "of a severity appropriate in all the circumstances of the offence" (see s16A(1), Crimes Act). 7. Section 16A(2) identifies the matters the Court must take into account such as are relevant and known to the court. THE NATURE AND CIRCUMSTANCES OF THE OFFENDING 1. The following factors are relevant to an assessment of the nature and circumstances of the offending: 1. The duration of the offending – between 27 July 2016 and 12 October 2016 (approximately 2½ months). During this time the offender communicated with the AOI on at least 18 occasions. 2. The offender was aware of the assumed age of the AOI, namely 14 years old at the time of the interaction. 3. The offender was 59 years old as at the date of the offending. 4. The communications eventuated in a meeting being arranged between the offender and the AOI. 5. The type of the sexual activity discussed included sexual intercourse, specifically, "pull those nickers down n lick till [she] cum on my tongue." 6. The nature and extent of discussion of sexual activities with the AOI. On many occasions the offender informed the AOI that he was masturbating during their conversations. He also asked the AOI if she masturbated, whether she was a virgin, whether she had hair on her "pussi". 1. The Crown has submitted that the fact that the "victim" was an assumed identity does not reduce the objective seriousness of the offending. Mr Preece on behalf of the offender submitted that the is some reduction in culpability because there is no injury, harm or loss from the offence (see s16A(2)(e), Crimes Act). 2. Having regard to the remarks of McClellan J in R v Fuller (2010) NSWCCA 192 at 35, I am not satisfied there is any reduction in culpability. McClellan J stated as follows: "Although an offence may be more serious when communication is made with an actual child and harm is done to that child, the primary object of the legislature in creating the offence was to prohibit the use of the internet by persons intent upon communicating with young persons for sexual purposes. Although the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it". 1. This offence was a course of conduct involving a series of criminal acts (s16A(2)(c), Crimes Act). 2. General deterrence is a significant consideration when sentencing for this offence. Such offences are often a prelude to much greater destructive behaviour, they are extremely difficult to detect, and they are particularly exploitive of children. Such conduct has properly been described as being abhorrent (see Second Reading Speech 24 June 2004). 3. In R v Asplund [2010] NSWCCA 316 McClellan CJ (with whom Latham and Price JJ agreed) said as follows: "The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentence of appropriate severity." 1. The offender pleaded guilty. I am satisfied that the plea demonstrates genuine remorse, acceptance of responsibility and a willingness to facilitate the course of justice. I propose to allow a discount of 25%. 2. I am satisfied that the offending falls below the middle of the range of objective seriousness for this type of offending having regard to all of the matters referred to above. SUBJECTIVE CIRCUMSTANCES 1. The offender is now 60 years old. 2. The following material was tendered on his behalf at sentence: * EXH 1: Judicial Commission statistics * EXH 2 : 3 x District Court decisions * EXH 3: 8 x References: 1. Geoffrey LILLIS dated 5.6.17, 2. Helen DOUNIS undated, 3. Lynette MCALLISTER dated 17.5.17, 4. Vicki SANTAMARIA dated 20.5.17, 5. Grant EVERY-BURNS dated 15.6.17, 6. Tom TAYLOR undated, 7. Robert ROBARDS dated 12.6.17, 8. Nerida RAYFIELD dated 28.8.17. * EXH 4: Letter from offender dated 14.6.17 * EXH 5: Forensic psychologist report under the hand of Caroline HARE dated 29.5.17. 1. The offender gave evidence. He told the court he recognised that he had "stuffed up badly." He said he was remorseful and ashamed particularly because he has betrayed his wife. He said he has disclosed his offending conduct to his family and they remain supportive of him. He had sought help from Dr Stuart Edser after his arrest and undertook 8 or 9 sessions. He said he could not explain his conduct and he is extremely sorry. He still cannot explain why he acted as he did. He acknowledged that he has the ongoing support of his family. He said he has always accepted responsibility for his conduct. 2. In cross examination he agreed that speaking to a 14 year old online was not out of character for him. He acknowledged at the time of his arrest he was addicted to online chatting. 3. It was suggested to him during cross examination that there was a sexual motivation to organising the meeting with the AOI. He did not agree with that suggestion. He said he did not know why he chose to meet with the AOI. 4. In re-examination he said there was a lot happening in his life at the time of the offending including he was turning 60, his eldest sister had terminal skin cancer (she passed away during offending period); \emotionally he was "not where I should be"; and he regarded chats as a diversion from life. 5. The offender's daughter, Elizabeth Bennett, also gave evidence during the sentence proceeding. She is 30 years old. She said the offender has apologised for his conduct and has the full support of the family and friends. 6. The offender's background is set out in the report of Ms HARE, Forensic Psychologist (EXH 5). 7. The offender grew up in the Lake Macquarie area. There were seven children in his family. He was the middle child. It was a loving and supportive home and he had an unremarkable childhood. 8. He was an average student at school and left in year 9. He immediately began work in the Public Service where he remained until obtaining employment with a power station in 1982 (aged 25 years). He has been employed in various roles with that company until he ceased work in October 2016 aged 59 years. Prior to his retirement he had been employed in the IT department for a number of years. 9. He has been married to his wife since 1980. They shared a positive relationship and she remains supportive of him. The have three children aged 30, 28 and 26 years. They also remain supportive of him. 10. The offender told the psychologist he was in good physical health. CURRENT OFFENDING 1. The offender told the psychologist that he began using adult online chat rooms a decade ago. His use over the last 5 years escalated to up to 4 hours a day. He was described by the psychologist as "experiencing symptoms consistent with dependence on the communication and positive reinforcement he was receiving" (p8/18). 2. It was in the context of excessive use of chat rooms that he began chatting to 'Jessica' (AOI). 3. He justified the continuation of the chats on the basis that "it's just chat", and reasoning that she must be enjoying it as she gave "no indication to stop". 4. When speaking to the psychologist, the offender was unclear why he decided to meet up with 'Jessica' and denied sexual motivation for the meeting. 5. To the extent that the offender asserts there was no sexual motivation for the meeting with 'Jessica' I reject his evidence. In my view such a motivation is wholly apparent when one has regard to the preceding communications. The psychologist was of the view this reflected "his current limited insight into his offending" (p15, EXH 5). 6. In relation to the offender's mental health he was considered to be experiencing a mild level of psychological distress shortly after his arrest and was referred by his GP for psychological counselling. 7. The psychologist was of the opinion that the offender has some improved insight into his offence pathway. She gave the following examples: "he identifies his unresolved grief following the deaths of his mother and sister, and his difficulty coming to terms with the process of aging and retirement as contributory factors that culminated in a feeling that "everything was closing in", which he sought to alleviate through increased engagement in compulsive online chatting." 1. Psychometric testing disclosed that the offender is relatively emotionally well-adjusted and is not currently suffering from a clinical disorder. 2. The offender was assessed as having an average risk level for re-offending using the Static-99R actuarial risk assessment and as having a low dynamic risk of re-offending using the Risk for Sexual Violence Protocol (see p13 EXH 5). The psychologist lists a number of factors that inform the risk assessment as follows: a) Some limited awareness of the factors and processes that placed him at risk of committing a sexual offence; b) Some evidence of minimising his sexual offending behaviour – for example he denies sexual motivation for the arranged meeting; c) Some evidence of increasingly diverse offending – he progressed from chatting sexually to 'Jessica' online, to speaking to her on the telephone and then arranging a meeting; d) Some use of cognitive distortions (or 'comfortable stories') that enabled his offending – for example, telling himself 'it's just a chat' and 'The conversation wouldn't continue if she didn't want to talk'; e) Some problems with physical and emotional intimacy within his marriage". 1. Having regard to the factors identified it is somewhat surprising in my view that his overall assessment was as low risk. For the purposes of sentencing I find his risk of re-offending as low to average range. 2. In relation to the offender's remorse and contrition the psychologist was of the opinion that the offender "continues to lack some insight into what placed him at increased likelihood of engaging in the conduct." (p15, EXH 15). 3. The psychologist made a number of recommendations in relation to the offender's treatment. 4. Also tendered on behalf of the offender were 8 references (EXH 3). All those references speak highly of the offender. He is described as reliable, trustworthy, respectful and hardworking. A number describe the conduct as being out of character for the offender. 5. One of the references was from his wife Nerida RAYFIELD. 6. She described the offender as a "solid and respected community citizen." 7. She said the offender was very remorseful for his conduct and also the embarrassment that he had caused the family. She also described the conduct as being out of character for the offender. OFFENDER'S LETTER TO THE COURT 1. Also tendered on behalf of the offender was a letter written by the offender (EXH 4). 2. The offender apologised for his behaviour. He acknowledged that he had let down his family and friends. He said he was now aware of the great harm his actions can cause young and vulnerable persons. He said "in so many respects I am actually glad I was caught." He assured the court he would not re-offend. OFFENDER'S CHARACTER, AGE, ANTECEDENTS AND BACKGROUND 1. I am satisfied that the offence was out of character for the offender. 2. The offender has no criminal record which entitles him to some limited leniency on sentence. I accept the submission of the Crown that good character should be given less weight in these types of offences having regard to the need for general deterrence and the seriousness of the offending. 3. I note that the offender is now 60 years of age. PROSPECTS OF REHABILITATION 1. I am satisfied the offender has good prospects of rehabilitation. He has already taken steps to address some of the issues that led to his offending behaviour; he has good family support and he is motivated to ensure that such conduct does not recur. 2. I am also satisfied the offender is unlikely to reoffend if he maintains his current motivation to engage with professional counselling and treatment. DEFENCE SUBMISISONS 1. Mr Preece submitted on behalf of the offender that whilst a term of imprisonment is warranted it could be suspended having regard to all the circumstances of the matter. 2. Mr Preece relied upon Judicial Commission Statistics (EXH 1) which indicate 43% of offenders received a full time custodial sentence for this offence. 3. Also, Mr Preece tendered on sentence the following District Court decisions: R v Bozinovski [2009] NSWDC 200 R v McKenna [2015] NSWDC 250 R v Telfer [2016] NSWDC 421 1. The Crown submitted that the only appropriate penalty is a full time custodial sentence. The Crown relied on the following decisions: R v Costello [2011] CA 39 Rampley v R [2010] NSWCCA 293 R v Asplund [2010] NSWCCA 316 R v Gajjar [2008] VSCA 268 R v Shepheard [2008] ACTSC 116 1. I have had regard to the abovementioned authorities. They have been of assistance in demonstrating the range of sentences that have been imposed for this type of offending. 2. I am satisfied that having regard to the seriousness of the offending and the need for general deterrence only a full time custodial sentence would be appropriate in all the circumstances of the offence. DETERMINATION 1. Having considered all possible alternatives, I am satisfied that no penalty other than full time imprisonment is appropriate (s17A, Crimes Act (Commonwealth)). 2. I have had regard to the maximum penalty. 3. I have taken into account s16A(1) and s16A(2), Crimes Act (Commonwealth). 4. Stand up Mr RAYFIELD. 5. You are convicted. 6. I sentence you to a term of imprisonment of 2 years 7 months, commencing on 20.6.2017, and expiring on 19.1.2020. 7. I direct that you be released on a recognisance after 1 year and 4 months himself in the sum of $100 with the following conditions: 1. That he be of good behaviour for a period of 1 year 3 months. 1. Accordingly the release date is 19.10.2018. 2. The starting point for that sentence was 3½ years discounted by 25% for the plea of guilty. 3. Pursuant to section 23ZD of the Crimes Act, 1914 and upon the application of the Director of Public Prosecutions, the following items are forfeited to the Commonwealth: * Apple iPhone (Exhibit No. X0000773330); and * Apple iPhone (Exhibit No. X0001097231); and * Apple iPad (Exhibit No. X0001097232); and * Dell Laptop (Exhibit No. X0000773324); and * Dell Laptop (Exhibit No. X0000773325. ********** 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: 10 July 2017