District Court New South Wales Medium Neutral Citation: R v Robert Leslie Watson [2018] NSWDC 185 Hearing dates: 16 – 30 April 2018; 1 – 10 May 2018 Decision date: 05 July 2018 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Full time custodial sentence. For orders see [91] Catchwords: Grooming child under 16 years; transmit child pornography material; receive child pornography material; aggregate sentence. Legislation Cited: Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code 1995 (Cth) Cases Cited: Berryman v R [2017] NSWCCA 297 JM v R [2014] NSWCCA 297 Rampley v R [2010] NSWCCA 293 R v Asplund [2010] NSWCCA 316 R v Cahyadi [2007] NSWCCA 1 R v De Leeuw [2015] NSWCCA 183 R v Fuller [2010] NSWCCA 192 R v Porte [2015] NSWCCA 174 R v Simpson (2001) 53 NSWLR 70 R v Van Ryn [2016] NSWCCA 1 Category: Sentence Parties: Director of Public Prosecutions (Crown) Robert Leslie Watson (Offender) Representation: Counsel: Ms B Anniwell (Crown) Ms M Swift (Offender) File Number(s): 14/194620 Publication restriction: Pursuant to s 7 of the Court Supression and Non-Publication Act 2010 (NSW) there is to be no disclosure of information that will reveal or likely reveal the identity of the assumed online identity "CEIU14", in accordance with order made on 5 July 2018. The assumed online identity in this judgment will be referred to as AOI. REMARKS ON SENTENCE Introduction 1. On 16 April 2018 the accused pleaded not guilty to three Counts on an Indictment, which included Count 1: "Between about 24 February 2014 and about 1 July 2014 at Armidale in the State of New South Wales, being a person over 18 years of age, used a carriage service to transmit communications to the recipient, AOI, being someone who the defendant believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with himself." 1. The offence was contrary to s 474.27(1) of the Criminal Code 1995 (Cth) ("the Code"). 2. Two other Counts on the Indictment concerned offences contrary to s 474.19(1)(a)(iii) (publish child pornography material) and s 474.19(1)(a)(iv) (receive child pornography material) of the Code. 3. On 18 April 2018 I ordered that a separate trial take place in respect of Count 1 on the Indictment – see R v Robert Leslie Watson (No 2). The trial commenced on 18 April 2018 and on 30 April 2018 the jury returned a verdict of guilty on Count 1. 4. The facts to be derived from the jury verdict in the first trial were contained in the evidence in the Crown case. That comprised an Agreed Statement of Facts (Ex A), in which the accused admitted a sexual interest in the online persona AOI, who represented herself to be 13-14 years of age. 5. The Crown case relied on evidence from Detective Senior Constable Cartwright, who gave evidence of a covert operation carried out by New South Wales Police between February and July 2014. For the purpose of that operation, police created a Facebook account and a Skype account for AOI, who on 24 February 2014 sent a Facebook friend request to the offender, which he accepted. Exhibit B contained numerous Facebook and Skype communications between AOI and the offender over the ensuing four months, together with numerous SMS messages sent to a phone number controlled by the police via the offender. 6. On 24 February 2014 a webcam communication took place, in which police could see the offender, but the offender was unable to see the recipient. The DVD of that communication became Ex D. 7. On 26 March 2014 a telephone call took place between Detective Senior Constable Stephanie Hostnik and the offender, in which they discussed the offender coming to visit AOI in Sydney from Armidale (Ex F). 8. The various communications in Ex B were replete with references by the online persona AOI informing the offender that she was 13 years of age, and then following her birthday in June 2014, she turned 14 years of age. The communications were also replete with sexual references raised by the offender, comprising sexual activities that he and the recipient would engage in if they met up. The following examples are adopted from the Crown's proposed findings of fact: "On 26 February 2014 the Offender asked "have you ever done any stuff with guys at all?", "like sex stuff" and then "do u think about kissing n stuff? Do u think about having sex yet". After further conversation he stated "it would be fun to teach you but it's a bit tricky on fb" and "we could just watch porn n maybe you could try out sum of the stuff you learn on a guy you like?" The Offender reminded the AOI to delete messages and asked that they transfer their conversation to Skype rather than Facebook, and when asked why, stated "I duno I just get paranoid I guess. Still haven't seen u for real. Do u like me?" The AOI and the Offender proceeded to chat on the application Skype and the offender made a number of sexually explicit statements, including "id love to take a girls virginity, I don't know why I just would'' and ''''dose it bother you that the thort of having you is really turning me on?", and "my hearts racing n my dick is getting harder n harder the more I talk to you (wasntme) and asked the AOI "how far would you let me go". During this online communication the Offender encouraged the AOI to leave home and run away to live with him. He stated, "you should just come and live with me. Just do it and say you 're staying with friends. I just want you with me so bad." He also went on to say "I have my hand on my cock wishing I could find a way for me and you". On 26 March 2014 an online chat communication occurred between the Offender and the AOI, in which the Offender communicated "I'd love to be ur first. I want to see u naked in front of me so bad,". The Offender again made reference to meeting the AOI, stating "I really wish u were here. I want cuddles n stuff'. The Offender again asked the AOI for her phone number. On 3 May 2014 the Offender told the AOI he had been dreaming about her and stated "was prety exciting I was really hard for ages after" and "I am now just thinking about you". The Offender again encouraged the AOI to run away from home to be with him, stating "I wish u could run away n come see me but it is a lot to ask of you. I would be so happy if you came here to see me. Any day of the week, you can stay at my place I u want to". The Offender later stated "Get your sweet ass down here. I'd look after you til you got on Centrelink or something."" 1. A meeting was initially arranged for the offender to come to Sydney, however, he did not do so. Another arrangement was entered into whereby AOI, was to pass through Armidale where the offender lived, and they were to meet on 1 July 2014 at McDonalds in Armidale. 2. On that day, the offender was arrested at McDonalds. When asked by arresting police what he was doing at the restaurant, he told them he was meeting a friend whom he had met online. He told police her name, and she was 14 years of age. In an ERISP interview on the same day, the offender told investigating police that he thought he might have been communicating with "an old dude", and that it was "just a bit of a fantasy silly thing". After first telling the police that AOI had first brought up conversations about sex, he agreed that he had been the instigator of conversations about sexual activity. He said: "I had no intentions of having that sex with that girl and in no way we did. I spoke to her as a fantasy honestly thinking that it was just a weirdo." 1. The defence of the offender at trial was twofold. First, that the Crown could not prove beyond reasonable doubt that the offender, in making the communications, did so with the intention of making it easier to procure the recipient to engage in sexual activity with himself. Secondly, he relied on a statutory defence that he believed that the recipient was at least 16 years of age. The jury verdict makes it clear that the jury rejected both those defences. 2. On 1 May 2018, the trial on the two counts pursuant to s 474.19(1)(a)(iii) and s 474.19(1)(a)(iv) of the Code commenced. The Crown was given leave to amend the first of those counts to "transmit" child pornography material. On 10 May 2018, the jury returned a verdict of guilty on both counts 1 and 2 on that Indictment. 3. The facts to be derived from the jury verdict in the second trial were contained in the evidence in the Crown case. That included two reports that were forensically obtained on the contents of the hard drive of an Apple Mac computer (X0002978783) owned by the offender, which was located in premises occupied by him, upon execution of a search warrant by the police in Armidale, following his arrest on 1 July 2014. The first preliminary report produced by the forensic specialist, Mr James Oram, was Ex L. It was obtained using a software system known as Internet Evidence Finder ("IEF"). Subsequently, a more detailed examination of the hard drive was carried out and a much longer report obtained. That report became Ex N in the proceedings. It was divided into various categories of data retrieved from the hard disk. There was no dispute in the trial that the material constituted child pornography material. What was in dispute in the trial was whether the offender was the author of the material transmitted, or the recipient of the material contained in the report. However, for the purpose of sentencing it is important to set out the following examples of the offender's statements, as extracted from Ex N by the Crown: "Count 1: Transmit child pornography material (a) The offender asks "can you play a baby vid for me", and when the recipient asks "you fuck young girls already" the accused replied "I have not for a while tho" …"havnt been around my friends daughter in a few weeks", and when asked how old she was, replied "7". When asked "what the youngest you fuck", the accused replied "2 yo niece" …"can you send me vid please" … "I love watching babes getting fuked …"I love this stuff the harder the beter". (b) "I love to have u watch me with a 2 yo" … "I wanna stick my young down her throughout as she crys on my cock" … "I wish I cow'd watch u fuck a little one". (c) When the offender was asked "can you tell me about you rape the 3y from behind from begin to the end" he replies "wes fairly brief took her in my room took of her lil pantys n sarted licking her our" … "I put iy on he mouth and cunt" … "not far but" …"was scared to hurt her" … "just didn't want to be caught". (d) The Offender states "wish I had some girls" and when asked to tell about what he wanted to do with them, the accused replied "id love to have a 7 yo n make her be my little s slave girl friend" …" I wanna put her to sleep with my cock in her moth every nigt" … "I wanna be able to have her all the time" … "Id break her ass first" … "mmm yeah I want to smash her wholes so hard but I want he to beg me of r more" … "do u think I could kill her with my cock" … "id love to burrie my cock in a 3 yo hole" … "he is to gentle to with her lil". On 17 August 2013, messages were exchanged between the offender and an unknown recipient: "Unknown: "how old the first girl you play with Offender: 2 Unknown: how you get her Offender: took her to her room n went hard she was my niece Unknown: super hot Offender: it was Unknown: what you do with her Offender: fumed her mouth and count a few times." "Count 2 – Use a carriage service to solicit child pornography material During the Skype conversations, the offender solicited child pornography material and traded videos of himself masturbating to the images/videos to obtain the child pornography material he sought. Examples of the offender's requests include, but are not limited to, the following: (a) "can u send me sum real young getting fucked" … "awesome" … "mmm very cute" … "any more her age" … "I fucking love babys" … "me to I feel bad man this things not working I love ur style tho would love some more" … "babys get me so hard" … "send as much as you can I love this stuff" … "can u send some more bagy stuff for me please" … "oh ok kool thank uv mad my day" … "would love to see more if u could find it in ur heart to send me sum. (b) "Can you sent me a vid please" … "I love watching babies getting fucked" … "so hot" … "do u have lots of vids?" … "do u have any white babys?" … "(you like) very much" … "I love this stuff the harder the better" … "could you send me sum?" (c) "hey u watching any good stuff" … "love the babys" … "can u play sum for me?" … "may I see sum please" … "I love baby count fucking" … "love that real rough one". (d) "id love to see sum little ones" … "can u show sum baby vids" … "I want my cop deep in a baby … cock" …"I wanna see a baby penatraited". (e) "can u show kids for me" … "(when you wank) I'll sank for you do you have baby vids?" … "show please" … "show baby fucking" … "I'm close … any baby boys being fucked" … "need boy … to cum". (f) "do have aby lil ones you can she me" … "can u play vids for me …?" "4yo fuk?" … "do u have any hard kid rape?" … "please play one more so I can cum with it" … "pretty please"" 1. The jury verdict of guilty to both counts meant that the offender intended to transmit and solicit the material, that the material was transmitted and solicited using a carriage service, and that the accused was reckless to the fact that the material was child pornography material. 2. In the second trial, the Crown relied, as tendency evidence, on the evidence adduced in the first trial, being the Facebook and Skype communications between AOI and the offender between February and July 2014 (Ex B). It was an agreed fact in Ex A that the accused had a sexual interest in the AOI, who represented herself to be 13-14 years of age. It was an also an agreed fact that between 24 February 2014 and 1 July 2014: 1. The offender used the user name "Robbie Watson" on Facebook to communicate with the Facebook user AOI; and 2. The offender used the Skype user name "robbie.watson21" and the display name "Robbie Watson" to communicate with Skype user AOI. 1. The offender did not give evidence in the trial, but relied on concessions made by the computer forensic analyst, Mr James Oram, in the Crown case as to the vulnerability of passwords being stolen for the purpose of hacking other persons' Internet accounts, the use of malware to introduce a third person to such accounts and allow the use of them without the owner of the device being aware, and the process by which Skype chats were synced among a user's various devices, which allowed for the possibility that data may be stored on a device without the owner's knowledge. It is clear from the jury verdicts that the jury rejected the offender's defence based on those possibilities and the jury found that the offender was robbie.watson21, the account user responsible for transmitting and soliciting the child pornography material. The sentence hearing 1. The Commonwealth Crown Sentence Summary became Ex A on the sentence hearing, which took place on 5 July 2018. Ex A included the Crown's proposed findings of fact, following both trials, which have been incorporated into the findings of fact outlined above. 2. Exhibit A also included a copy of the offender's criminal history by way of a bail report created on 5 July 2014. This was subsequently replaced by consent, with an updated bail report. That report included a number of matters dealt with in the Children's Court in 1996, which I have disregarded for the purpose of sentencing the offender. His criminal antecedents included offences of dishonesty (attempt break and enter with intent, larceny, make false instrument, shoplifting) together with offences of violence (malicious damage, assault within intent to rob) between 1996 and 2001. Thereafter, there was no offending until 2013 when there were further convictions for destroy or damage property, common assault (two offences), and then in 2014, together with the subject offences, the offender was also charged with possession of a prohibited drug, for which he was fined $600, and possess or use prohibited weapon without permit, for which he was sentenced to three months imprisonment commencing on 3 November 2014. On appeal, that sentence was set aside, and in lieu, the offender was sentenced by way of a s 9 bond for a period of two years on 3 December 2014. He therefore spent one month in custody, which should be taken into account in this sentence, given that those offences arose out of the search by police of his home when investigating the subject offences. 3. The offender relied on a report from Ms Anita Duffy, psychologist, dated 25 June 2018 (Ex 1). In that report, Ms Duffy set out the offender's background, educational and employment history. The offender, who was born on 2 May 1980, had left school midway through year nine. He had been diagnosed with schizophrenia in 1999 while in custody at Tamworth Correctional Centre, and had never worked, apart from a casual cooking job at a local club in Armidale in 2012. He has been in receipt of a Disability Support Pension for a period of over 10 years. 4. The offender's mental health issues became exacerbated by his non‑compliance with medication and the use of prohibited drugs. He reported using cannabis from age 14 and in his late teens was injecting amphetamines. He started to use crystal methamphetamine ("ice") in around 2013. That escalated to daily use. 5. Following the breakup of a relationship in 2011, he became depressed and thereafter lived an isolated life. During the period when the offences took place in 2014, he was using ice daily, as well as smoking cannabis. He was not compliant with his medication and was suffering psychosis with hallucinations and delusions. 6. On personality testing, he scored elevated scores on avoidant, depressive and dependent characteristics. He also had elevated scores for anxiety and drug dependence, and significant scores for delusional disorder, thought disorder and major depression scales. 7. Upon risk assessment, he was placed at an average risk for recidivism for another sexual offence. 8. The author opined that the offender satisfied the diagnostic criteria for schizophrenia. His symptoms entailed psychotic symptoms such as auditory hallucinations, delusions and disorganised speech and behaviour. He had first been diagnosed with mental illness at the age of 19, and had been consistently treated for schizophrenia since 2003, by way of medication and numerous admissions to mental health facilities. 9. The author opined that to reduce the risk of reoffending, the offender's treatment needs should focus on managing his mental illness. as well as educative programs regarding sexual behaviour. In custody, he could be assigned to the CORE program, for low, moderate risk/needs, sexual offenders and follow-up in the community. Currently, his mental condition had been stabilised by increasing his dose of antipsychotic medication and cessation of illicit drugs had improved his mental state. The Crown submissions 1. The Crown relied on a detailed written outline of submissions on sentence. The Crown submitted that the only appropriate sentence was one of full time custody. The Crown then set out general principles of sentencing for Commonwealth offences. It submitted in respect of the relevant parts of s 16A of the Crimes Act 1914 (Cth), that the court should take into account the following: (i) Section 16A(2)(a) – The Nature and Circumstances of the Offences The Grooming Offence 1. The Crown referred to the following factors approved by the Court of Criminal Appeal in R v Asplund [2010] NSWCCA 316 as relevant to determining the objective seriousness of a grooming offence: "(a) Referred to the respondent's conduct as bombardment of CF with indecent suggestion, graphic sexual images, solicit from her the same, all the while remaining anonymous from the authorities, hidden from those who love and have the child's best interests at heart; (b) Noted that the criminality in this conduct was 'the interference with the child's privacy, her right to a healthy psycho-sexual development, by requiring her to feed into and gratify his sexual titillation and fantasies with a long-term view of having her submit to sexual activity with him; (c) Referred to there being an abuse of power and the formulation of destructive relationship; (d) Held that the respondent showered CF with money, bombarded her withcommunications and toyed and manipulated her in the internet exchanges; (e) Held that the transference of intimate person photographs was 'designed to break down conventional social barriers to an acceptance by her of his penis for her'; (f) Held that the abuse of power in grooming CF must have had 'some corrosive impact on her, so that she forgoes the normal sexual mores accepted by our society and becomes compliant with unhealthy demands and an interest in prurient suggestion; (g) Held that CF was a victim in the sense that her 'psycho sexual development and emotions attached to them [were] traumatized". 1. The Crown submitted that the following factors were relevant to the objective seriousness of the offending here: "(a) The offending occurred over an extended period of time - February 2014 to July 2014 (over four months). (b) The chats display an awareness by the offender of the age of the AOI (13-14 years old), and a desire to discuss highly sexualised matters despite her age. (c) The offender used explicit language to exercise his sexual desires towards a girl he believed was a child. (d) The offender engaged in behaviour aimed at cultivating a relationship of trust between himself and the child so that she would continue to communicate with him and eventually meet him so that he could pursue his desire to engage in sexual activity with her. The offender exploited the anonymity of the internet to cultivate that relationship of trust with the AOI over time. (e) The offender directed the AOI to delete her conversations with the offender from her computer so as to avoid detection. (f) The offender made arrangements to meet with the AOI in Armidale, at one point suggesting that they meet at his home. When a meeting place was agreed upon (McDonalds) the offender attended the meeting place on the date and time agreed. (g) The offending conduct only ceased when the offender was arrested. (h) The verdicts make it clear that the jury did not accept the statements made by the offender to NSW Police. The jury rejected the offender's claims that: (i) he 'had no intentions of having sex with [the AOI]'; (ii) 'there's nothing, nothing ever realistic ever happening' and he 'spoke to her as a fantasy honestly thinking [the AOI] was just a weirdo'. (i) The verdicts indicate that the jury was positively satisfied that the offender intended, as a real possibility, to engage in sexual activity with the AOI and believed that she was under 16 years. (j) It is submitted that the Court would conclude that the offender engaged in a deliberate and persistent course of conduct, aimed at encouraging a young girl to engage in sexualised communications for the purpose of the Offender's sexual gratification and, ultimately, for the Offender to realise his intention to engage in sexual activity with her." Transmitting and soliciting child pornography material 1. The Crown referred to the following factors as being determinative of the objective seriousness of child pornography offences, relying on R v Porte [2015] NSWCCA 174: "(a) Whether actual children were used in the creation of the material and the extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. (b) The nature and content of the material (in particular the age of the children and the gravity of the sexual activity depicted). (c) The number of images and items of material. (d) In the case of transmission, the number of persons to whom the material was transmitted. (e) The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material. (f) Whether any payment or other material benefit (including the exchange of child pornography material) was made, provided or received for the acquisition of the transmission. (g) Whether the material is for the purpose of sale or further distribution. (h) Whether the offender will profit from the offence. (i) Whether the offender acted alone or in a collaborative network of like‑minded persons. (j) Any risk of the material being seen or acquired by vulnerable persons, particularly children. (k) Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted." 1. The Crown submitted that the offending here, in respect of each offence, was objectively serious for the following reasons: "(a) The child pornography material transmitted by the offender can only be described as extremely graphic and abhorrent. The offender described extreme, and at times violent, sexual scenarios involving children, some as young as two years of age. (b) The child pornography material solicited by the Offender was also of a graphic nature, which the Crown submits is based on a sexual attraction to young children. (c) The volume of child pornography material transmitted and solicited by the offender is significant: (i) The material was transmitted during many online conversations over approximately 9 months (August 2013 to May 2014). (ii) The offender made repeated and persistent requests for child pornography during a number of online conversations over approximately 10 months (June 2013 to April 2014). (d) The material transmitted by the offender was created by the offender: he was the author of the scenarios described during the online conversations. (e) The offender received a material benefit in the form of receiving or viewing child pornography for transmitting the child pornography material that he did. (f) By transmitting the child pornography material over Skype, the offender has contributed to the distribution of child pornography over the Internet, a market that corrupts and exploits children. (g) By soliciting child pornography material, the offender has increased the demand for the dissemination of this material over the Internet. (h) Once transmitted over Skype, the offender had no control as to who the child pornography material was further distributed to. Therefore, there was a risk of the material being seen or acquired by vulnerable persons. (i) The offender was transmitting and soliciting material from a network of like-minded individuals also sharing material over Skype. (j) The offender has used the anonymity afforded by the Internet to transmit and solicitor child pornography material. Further, he has engaged in the conduct in private conversations between himself and only one other user at a time. Offending involving child pornography is difficult to detect given the anonymity provided by the internet." (ii) Section 16A(2)(c) - If the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character – that course of conduct 1. The Crown submitted that the transmission and solicitation of child pornography material was persistent and involved repeated and systematic criminal acts. (iii) Section 16A(2)(f) – The degree to which the person has shown contrition for the offence 1. The Crown submitted that the offender denied and still denies committing the offences. There was no evidence of contrition. Further, the jury had rejected the defence that he was not the author of the Skype communications subject to the child pornography offences. (iv) Section 16A(2)(h) – The degree to which the person has co‑operated with law enforcement agencies in the investigation of the offence. 1. The Crown conceded that the offender participated in an ERISP interview with the police following his arrest, in which he provided some limited information in relation to the grooming offence. However, the jury had rejected his contention that he had spoken to AOI as a fantasy, honestly thinking that AOI "was just a weirdo". There was therefore little "co‑operation". (v) Section 16A(2)(j) – The deterrent effect that any sentence may have on the person 1. The Crown submitted that the court would accept that the offender engaged in the conduct for his own sexual gratification. It was clear that the offender had a sexual interest in children under 16 years, and that was put to the jury as one of a number of tendencies in relation to the child pornography offences. The Crown submitted that the offending could not be explained as a momentary or impulsive lapse. There was therefore a real need for the sentence to reflect an appropriate level of personal deterrence to reduce the risk of similar predatory offending in the future. (vi) Section 16A(2)(ja) – The deterrent effect that any sentence may have on other persons 1. The Crown submitted that general deterrence was of fundamental importance, given the public interest in protecting children from sexual exploitation and abuse. 2. The Crown further submitted that general deterrence was of paramount consideration in sentencing for offences involving child pornography. There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime. The Crown further submitted that the internet provides a relatively anonymous forum for people such as the offender to contact children, and engage them in sexualised conversations and activities. Furthermore, it has been acknowledged that offences of this kind are difficult to detect, and easy to commit." 3. The Crown submitted that in R v De Leeuw [2015] NSWCCA 183, the Court of Criminal Appeal affirmed the following relevant principles, relevant to the instant case: "(a) ordinarily a term of imprisonment is warranted; (b) general deterrence is the primary consideration; (c) limited weight is given to prior good character; (d) offending involving child pornography is becoming increasingly prevalent; (e) the offences are difficult to detect; (f) possession of child pornography creates a market for the continued corruption and exploitation of children; (g) there is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime; and (h) the fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale does not mitigate the offending." 1. Further, the Crown submitted the fact that AOI was a fictitious person does not make the offence any less reprehensible, relying on R v Fuller [2010] NSWCCA 192 at [35]. (vii) Section 16A(2)(k) – The need to ensure that the person is adequately punished 1. The Crown submitted that the only appropriate penalty is a period of full time imprisonment, given the high criminality involved in the offending. The maximum penalties proscribed for the offences were a yardstick for the appropriate sentence here. (viii) Section 16A(2)(m) – The character, antecedents, age, means and physical and mental condition of the person 1. The Crown submitted that the offender was now 38 years of age and had a number of prior convictions. Whilst the offender had tendered evidence at the hearing asserting that he was otherwise a person of good character, that has a limited role to play in these types of offences. 2. Further, the offender had relied on a report by a psychologist, Ms Anita Duffy, dated 25 June 2018. That report had been silent on whether the offender was assessed for a disorder of abnormal sexual interest (paraphilia) in the form of specific attraction to female and/or male children (hetero-sexual or homosexual paedophilia). 3. The Crown submitted that Ms Duffy had speculated that the offender's mental illness and effects of his consumption of ice "may have impacted his thinking process contributing to inappropriate behaviours relating to his sexual offences. 4. The Crown submitted that whilst the court must take into account the fact that the offender was suffering from an active psychiatric condition at the time of the commission of the offences, it should not have the effect of significantly reducing the offender's moral culpability, or reducing the weight that the retribution and denunciation should play in sentencing the offender, particularly in this type of offence where deterrence is the paramount consideration. (ix) Section 16A(2)(n) – The prospect of rehabilitation 1. The Crown submitted that successful rehabilitation of the offender will depend on the extent to which the offender recognises a disorder of abnormal sexual interest and takes steps to overcome it. He had not as yet acknowledged the true nature of his offences, and therefore his prospects of rehabilitation were poor. 2. The Crown set out other principles of sentencing, together with a schedule referring to a number of cases where sentences had been imposed for offences of a similar kind. The Crown emphasised the need for sentencing consistency throughout Australia for Commonwealth sentencing. 3. Finally, the Crown referred to the principle of totality so as to arrive at an appropriate total sentence to reflect the criminality involved in the three offences before the court. It was submitted that the grooming offence served a different vice to the child pornography offences, and therefore there should be some degree of accumulation in sentence. 4. In oral submissions the Crown, properly in my view, withdrew a contention in her written outline to the effect that, with respect to the offence of transmit child pornography material, the offender had described child pornography scenarios with other users in order to trade for pictures and videos containing child pornography. Rather, the Crown conceded that, as advocated by Counsel for the offender, that the primary purpose of the offending was for the sexual gratification of the offender. 5. The Crown submitted that the objective seriousness of the offending here, as outlined in the written submissions, was at the serious end of the range for offences of this type. This case, however, was less serious than that dealt with in R v Asplund, supra, where the predatory behaviour had endured for a significant period of time and there had been a payment of money by the offender. It was submitted that the facts in the matter of Rampley v R [2010] NSWCCA 293, was more similar to the present case, however, Rampley had involved a plea of guilty being entered, the offender there had undergone treatment prior to sentencing, and it was held that he had good prospects of rehabilitation following a diagnosis of paedophilia. 6. Finally, the Crown sought a forfeiture order in respect of the offender's Apple computer, which was not opposed, and the order was formally entered. The offender's submissions 1. Learned Counsel on behalf of the offender relied on a detailed written outline of submissions. Counsel submitted that in respect of the grooming charge pursuant to s 474.27(1) of the Code, acknowledging the serious nature of the offending, that the objective seriousness was "much lower down the end of objective seriousness of this kind of offending". In distinguishing R v Asplund, supra, it was submitted: "(a) There was no bombardment of AOI with indecent suggestions or graphic images. On the contrary, AOI initiated the contact, created situations which the offender took up and, at times, the offender avoided contact with AOI, e.g. by defriending her. It was submitted that this was not a kind of predatory behaviour described in Asplund. (b) No sexual visual contact was conducted or raised by the offender during the course of his interactions with AOI. Attempts to contact her for the purpose of verifying her identity rather than sexual contact. (c) Counsel adopted arguments used in her closing address to the jury relating to the process of engagement of AOI with the offender, amounting to entrapment, which was not a defence. (d) Much of the conversations between the two were general chatting, although sexual conversations did occur on at least three occasions. (e) No sexual images were sent or sought by the offender. (f) No cruel and manipulative behaviour was engaged by the offender. (g) The offender was on bail following his arrest until his trial in 2018, with no further re-offending. 1. In respect of the offence pursuant to s 474.19(1), use carriage service to transmit child pornography material, it was submitted that this offending had a significantly lower level of objective seriousness, due to the nature of the transmission. The offending consisted of exchanging messages with one other person at a time on Skype. On each occasion the discussion was of sexual fantasies, and no child was hurt in the transmission. It was submitted that this kind of "transmission" does not create a demand for child pornography. 2. It was submitted the conversations were transitory and only became permanently burned onto the offender's computer by a complex process of cloud syncing. There was no evidence that the offender saved these conversations for his later perusal and no other items taken by the police contained any child pornography material. 3. Counsel submitted that it was the existence of the internet which created this offence. It was submitted that "pre-internet, these kind of exchanges may have occurred whispered between two people in a dark room". It was, however, conceded that the exchange of the descriptions of sexual interactions were graphic and extreme. 4. In respect of the offence pursuant to s 474.19(1) of the Code of use carriage service to solicit child pornography material, the offending had a higher objective seriousness than the transmit offence, due to the fact that the soliciting of child pornography feeds into the creation of a demand for the supply of such product. 5. Counsel set out a summary of general sentencing principles pursuant to Division 2 of Part 1B of the Crimes Act 1914 (Cth). These principles are referred to below in the application of relevant factors pursuant to s 16A of the Act. 6. With respect to rehabilitation of the offender, Counsel referred to the report of Ms Duffy (Ex 1), which made no findings as to an assessment of abnormal sexual interest in children. However, the report did make an assessment of the offender's mental health issues, his social isolation and his drug addiction, as all interplaying factors which need to be addressed to reduce the likelihood of his re-offending. It was noted that he had had previous heterosexual relationships with age appropriate woman. 7. It was submitted that the principles of totality should be applied so as to avoid a crushing sentence. Where the head sentence in excess of three years is imposed, the court must fix a non-parole period or recognisance release order pursuant to s 19AB of the Act. In determining the ratio between head sentence and non-parole period, it was submitted that the primary question should be the length of the minimum period of incarceration, relying on R v Simpson (2001) 53 NSWLR 704. Here, it was submitted that the court would find the following reasons to vary the ratio, namely, the offender will require a substantial period of supervision in the community, he has significant mental health and problems with social isolation, and his mental health issues will make his time in custody more onerous and make him more vulnerable. 8. In her oral submissions, learned Counsel for the offender rehearsed her written outline of submissions as to the objective seriousness of each of the three offences. In distinguishing R v Asplund, supra, it was submitted that the conduct here in the grooming offence did not have the same intensity. There was no sexual imagery sent, and no significant predatory behaviour, no cruel and manipulative behaviour, and the offending was at the lower end of offending under the section. 9. In respect of the objective seriousness of the transmit child pornography offence, the offender had no intention to record the material. Further, there were no children involved, rather, the communications consisted of online fantasy between adults. There was no other circulation or dissemination of the material, thus lowering the seriousness of the offending. It was submitted that the offending was created by the existence of the internet, without which, it is unlikely that there would have been any offending. 10. Counsel conceded, on behalf of the offender, that general deterrence must be a primary focus in sentencing. However, the offender's significant mental health issues were relevant in reducing his moral culpability for the offending. Whilst there had been no assessment or diagnosis of paraphilia, or paedophilia, his medications had been increased and it was submitted that this would reduce his risk of recidivism. It was submitted that there were multi‑factorial issues at play here. The offender had mental health issues, had abused drugs and alcohol, and lived in isolation. Once these issues were addressed he would have better prospects of rehabilitation. He had also been on bail for a significant period of time since 2014, and there were no allegations of offending since. That was partly because he had overcome his issues with the drug ice. 11. In respect of his mental health issues, it was submitted that at the time of the offending the offender had not been compliant with his medication regime. He was now more stable than he was at that time. 12. Counsel submitted that the court could also take into account the manner in which the two trials were run, namely, that the offender had entered into agreements with the prosecuting authority to limit the issues ventilated at trial. Further, it was agreed that following his arrest, the offender had been convicted of an offence of possession of prohibited weapon, for which he had initially been sentenced to three months imprisonment commencing on 3 November 2014. Subsequently, that sentence was reduced on appeal by imposition of a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA"). He had served one month imprisonment prior to the imposition of that bond from 3 November 2014 to 3 December 2014. Therefore, any sentence should be backdated for a period of one month. Crown submissions in reply 1. In reply, the Crown submitted that it would not oppose an aggregate sentence being imposed pursuant to s 53A of the CSPA, provided indicative sentences were given. Pursuant to s 19AB(2) of the Crimes Act 1914 (Cth), any sentence of greater than three years meant that the court must fix a non‑parole period. 2. In respect of the absence of findings by Ms Duffy, psychologist, of any diagnosis of paraphilia, the Crown submitted that it was an agreed fact that the offender had a sexual interest in persons under the age of 16 years. The court would then make a finding that the offender had engaged in the Skype chats, the subject of the grooming offence, for the purpose of sexual gratification. The court would take this into account in assessing his prospects of rehabilitation and the risk of the offending re-offending. 3. Further, in relation to the "entrapment" submissions put on behalf of the offender, the Crown submitted that the modus operandi of the police undercover operation could not be taken into account in mitigation of the offending, relying on R v Fuller, supra, at [34] and [35]. Determination 1. In assessing the objective seriousness of the criminal conduct of the offender in respect of the grooming offence pursuant to section 474.27(1) of the Code, having regard to the matters set out in R v Asplund, supra, at [19] above, I accept the Crown's submission that the objective seriousness of the offending was at a high level, within the mid-range for an offence pursuant to that section. While the offending was at a less objectively serious kind than that in Asplund, it was still deliberate and persistent conduct that occurred over a period of four months, during which, the offender used explicit language to discuss highly sexualised matters when he was aware that the age of the AOI was 13 or 14 years. It was aimed at encouraging a young girl to engage in sexualised communication for the purpose of the offender's own sexual gratification, and ultimately for him to realise his intention to engage in sexual activity with her. 2. Whilst it was the AOI who initiated the contact, and during that period there were occasions when the offender avoided contact with AOI by defriending her on two occasions, it still amounted to predatory behaviour. Whilst there was no promise of monetary payment, and no cruel or abusive behaviour, the absence of those factors does not diminish the predatory nature of the offender's conduct. Further, the offender directed the AOI to delete the conversations from her computer so as to avoid detection. It is immaterial that AOI was not a real person. I therefore find that the offending fell within the mid-range of objective seriousness for an offence pursuant to section 474.27(1) of the Code, however, towards the lower end of that range. 3. In respect of the offence of transmit child pornography material pursuant to section 474.19(1) of the Code, I reject the offender's submission that the offending was at a significantly lower level of objective seriousness, consisting of exchanging messages with one person at a time, and characterised as a discussion of sexual fantasies. I further reject the submission that this type of transmission does not create a demand for child pornography. Nor were the conversations transitory. They endured over a long period of time and it is immaterial that they were recorded on the offender's computer by the process of syncing. Nor is it relevant that no other items seized by the police contained any child pornography material. 4. The material contained in Ex N in the trial could only be described as extremely graphic and abhorrent. It involved descriptions by the offender of extreme and violent sexual scenarios involving very young children. There was a significant volume of material transmitted over a period of nine months, and by transmitting that material, the offender contributed to the distribution of child pornography over the Internet. Once transmitted, the offender had no control over the further dissemination of that material to either vulnerable persons or other like-minded individuals. I therefore find the objective seriousness of the offending for the offence pursuant to s 474.19(1) in of the Code was within the mid-range of objective seriousness for such an offence. 5. I reject the submission made on behalf of the offender that it was the existence of the Internet which created this offence. Rather, the offender used the Internet to transmit graphic and extreme child pornography material clothed by the anonymity provided by the Internet to facilitate such conduct. 6. The objective seriousness of the offence pursuant to s 474.19(1) in of the Code, the offence of soliciting child pornography material, was also objectively serious offending. Again, there was a high volume of material solicited over a period of approximately 10 months. The material was of a graphic nature, based on the offender's sexual attraction to young children and for his sexual gratification. By soliciting the child pornography material, the offender was increasing the demand for dissemination of that material over the Internet from a network of like-minded individuals. The offending conduct was within the mid-range for an offence pursuant to s 474.19(1) of the Code. 7. In sentencing here, I have had regard to the following matters pursuant to section 16A of the Crimes Act 1900: (i) Section 16A(2)(a) – the nature and circumstances of the offences. 1. The nature and circumstances of the offences have been set out above. Each was objectively highly serious offending as set out above. (ii) Section 16A(2)(c) – if the offence forms part of the course of conduct consisting of a series of criminal acts of the same or similar character 1. There was some overlapping in the time period between the grooming offence and the two offences pursuant to section 474.19(1) of the Crimes Act. Each of the criminal acts was of a similar character in that in the first, it was admitted that the offender had a sexual interest in a female who was represented to be 13 or 14 years of age. In the two other offences, the offending involved transmission and solicitation of child pornography material that was persistent, graphic and abhorrent, and involved children of very tender years. (iii) Section 16A(2)(f) – the degree to which a person has shown contrition for the offence. 1. The offender denied the offending and entered pleas of not guilty to each offence. As set out above, the jury in each trial rejected the defences he relied on and there has been no evidence of contrition put before the court. (iv) Section 16A(2)(h) – the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence. 1. Notwithstanding that the Crown has conceded that the offender participated in an ERISP interview with the police following his arrest, in which he provided some limited information in relation to the grooming offence, there was in fact little cooperation with the law enforcement agencies in the investigation of the offending here. Similarly, notwithstanding that some issues were limited at trial, the prosecution was still put to proof of the offences at trial. Therefore I do not find that the offender cooperated with law enforcement agencies in this matter, so as to warrant any discount in the sentence to be imposed. (v) Section 16A(2)(j) - the deterrent effect that any sentence may have on the person. 1. The offending took place over a lengthy period of time and was engaged in for the purpose of the offender's own sexual gratification. I accept the Crown's submission that there is a real need for the sentence to reflect an appropriate level of personal deterrence to reduce the risk of similar predatory offending in the future, notwithstanding the mental health issues of the offender which I refer to below. (vi) Section 16A(2)(ja) - the deterrent effect that any sentence may have on other person. 1. I accept the Crown's submission that general deterrence is of fundamental importance here, given the public interest in protecting children from sexual exploitation and abuse. Possession of child pornography is not a victimless crime, and transmitting and soliciting child pornography material fuels the exploitation and abuse of the most vulnerable members of society. As outlined above, it is also very difficult to detect such offences. A strong message therefore must be sent to the community that Parliament has proscribed heavy maximum penalties for such offences, and the court will in appropriate cases impose lengthy sentences of imprisonment to reflect the serious nature of the offending. (vii) Section 16A(2)(k) - the need to ensure that the person is adequately punished. 1. The maximum penalty of 12 years imprisonment for the offence pursuant to s 474.27(1) of the Code, and the maximum penalty of 15 years imprisonment for the two offences pursuant to s 474.19(1) of the Code, are guideposts in the sentencing process. Given the high criminality involved in the offending, the only appropriate penalty is a period of full-time imprisonment. (viii) Section 16A(2)(m) - the character, antecedents age means and physical and mental condition of the person. 1. The offender is now 38 years of age and has a number of prior convictions as set out above, which would disentitle him to any leniency. In any event, good character has a limited role to play in these types of offences. I note that there was no assessment by Ms Duffy in Exhibit 1 as to whether the offender suffered from paraphilia or was diagnosed with specific attraction to female and/or male children, however, the fact that the offender was suffering from an active psychiatric condition at the time of the commission of the offences must have the effect of reducing his moral culpability. The court will also take into account the fact that he was non-compliant with his medication regime and was abusing ice on a daily basis throughout the period of the offending. The reduction in weight given to general deterrence in sentencing the offender is therefore somewhat limited. (ix) Section 16A(2)(n) - the prospects of rehabilitation. 1. The offender has not acknowledged the true nature of his criminal offending nor expressed any remorse in relation to it. The court must therefore be guarded in assessing whether the offender has good prospects of rehabilitation. Whilst he may be assessed as suitable for attending rehabilitation courses for deniers, the outcome of such rehabilitation will be impossible to predict. It is clear that the offender will need to address his mental health issues, his drug addiction and social isolation in order to reduce the likelihood of him reoffending. In order to give him the opportunity of doing so, I will vary the usual ratio between head sentence and non-parole period to ensure he has a substantial period of supervision in the community so that his significant mental health and drug issues may be addressed. 2. I am satisfied given the serious nature of the offending here, that no penalty other than imprisonment is appropriate in the circumstances of this case, pursuant to section 17A of the Crimes Act 1900. 3. I propose to sentence the offender by way of an aggregate sentence pursuant to s 53A of the CSPA. Before doing so, however, I am required to set out the indicative sentences in respect of each offence as a matter of transparency in the sentencing process. The indicative sentences therefore are as follows: 1. Offence pursuant to s 474.27(1) of the Code of use carriage service to groom person under 16 years of age for sexual activity – 4 years imprisonment. 2. Offence pursuant to s 474.19(1) of the Code of use carriage service to transmit child pornography material - 3 years imprisonment. 3. Offence pursuant to s 474.19(1) of the Code of use carriage service to solicit child pornography material - 3 years and 6 months imprisonment. 1. In aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be just and appropriate to the totality of the offending behaviour. 2. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved: "[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows: The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences." 1. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 at [27]: "There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 1. In JM v R [2014] NSWCCA 297 the Court of Criminal Appeal set out the relevant principles to be applied in arriving at an aggregate sentence – see also Berryman v R [2017] NSWCCA 297. It is important that the aggregate sentence arrived at reflects the totality of the criminality involved. 2. As the offences of transmit child pornography material and solicit child pornography material arose out of the same course of conduct, there is a strong argument for concurrency of those sentences. However, the offending was carried out over a long period of time and, as set out above, involved child pornography material involving very young children, which could only be described as extremely graphic and abhorrent. There should therefore be some accumulation between all three of the offences to reflect the totality of the criminality involved here. 3. I therefore intend to sentence the offender to a head sentence of 6 years imprisonment, with a non-parole period of 3 years and 6 months, to date from 12 June 2018. Orders 1. I make the following orders: (1) You are convicted of the offence pursuant to s 474.27(1) of the Criminal Code 1995 (Cth) of use carriage service to groom person under 16 years of age for sexual activity. (2) You are convicted of the offence pursuant to s 474.19(1) of the Criminal Code 1995 (Cth) of use carriage service to transmit child pornography material. (3) You are convicted of the offence pursuant to s 474.19(1) of the Criminal Code 1995 (Cth) of use carriage service to solicit child pornography material. (4) I sentence you to a non-parole period of 3 years 6 months to commence on 12 June 2018 and to terminate on 12 December 2021. (5) The balance of term will be a period of 2 years and 6 months, terminating on 11 June 2024. The total term is 6 years. (6) I confirm the forfeiture order made on 5 July 2018 in respect of the Apple Mac computer X0002978783. 1. Having made those orders, the parties advised the court there was an error on the offender's bail report, and in fact, he had previously served 3 months and one day in custody, before he was bail refused on 10 May 2018. Orders (4) and (5) were then vacated, and the following orders made: (4) I sentence you to a non-parole period of 3 years 6 months to commence on 9 February 2018 and to terminate on 8 August 2021. (5) The balance of term will be a period of 2 years and 6 months, terminating on 8 February 2024. The total term is 6 years. ********** Amendments 17 July 2018 - Paragraph 91 Orders (4) and (5) vacated. Paragraph 92 added Paragraph 92 replacement orders (4) and (5) made. 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: 17 July 2018