District Court New South Wales Medium Neutral Citation: DPP (Cth) v Sean David WALSH [2019] NSWDC 60 Hearing dates: 28 February 2019 Date of orders: 21 March 2019 Decision date: 21 March 2019 Jurisdiction: Criminal Before: His Honour Judge Lerve Decision: Total effective sentence of 7 years 6 months to commence 23 April 2018 with period in actual custody of 4 years 3 months – see [91]-[98] Catchwords: CRIMINAL LAW - Sentence - Using a Carriage Service to Cause Offence - Using a Carriage Service to Solicit Child Pornography Material - Using Carriage Service to Procure Persons Under 16 years of age - Using a Carriage Service to Transmit Indecent Communication to Persons Under 16 years of age - Using Carriage Service to Person Under 16 years of age with Intention of Making it Easier to Procure them to engage in sexual activity (groom) - Fail to Comply with Reporting Obligations – committed while subject to conditional liberty - early plea - remorse Legislation Cited: Child Protection (Offenders Registration) Act, 2000 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act, 1999 (NSW) Criminal Code 1995 (Cth) Cases Cited: DPP (Cth) v Aboud 16.7.2016 Hili & Jones v The Queen [2010] HCA 45 R v Asplund [2010] NSWCCA 316 DPP (Cth) v Beattie [2017] NSWCCA 301 Cameron v The Queen (2002) 209 CLR 339 R v AD [2008] NSWCCA 289 R v De Leeuw [2015] NSWCCA 183 R v Gajjar (2008) 192 A Crim R 76 R v Jones unrep NSWCCA 30.6.1994 R v Lee [2012] NSWCCA 123 Trector v R [2008] NSWCCA 151 at [97]-[99] R v Tyler and Chalmers [2007] NSWCCA 247 R v Wallace [2007] NSWCCA 63 Xiao v R [2018] NSWCCA 4 Category: Sentence Parties: Director of Public Prosecutions (Cth) Sean WALSH (Offender) Representation: Counsel: Mr R Keller (for the Offender) Solicitors: Ms H von Forell (for the Commonwealth DPP) Mr D Barron (for the Offender File Number(s): 2018/127805 Publication restriction: The court reminds all concerned that relevant legislation precludes the publication of the names of any of the persons under the age of 18 years to whom the offender communicated. Remarks on Sentence The court reminds all concerned that relevant legislation precludes the publication of the names of any of the persons under the age of 18 years to whom the offender communicated. 1. The offender appeared at the Wagga Wagga Local Court on 24 October 2018 and pleaded guilty to a number of offences relating to the using carriage services to send indecent material, solicit child pornography, procure a person under 16 for sexual activity, grooming and the State offence of fail to comply with reporting obligations. 2. On 28 February 2019 the offender appeared at the Wagga Wagga District Court and pleaded guilty to thirteen counts on an indictment, namely: 1. That (he) between 27 June 2015 and 12 July 2015 at Junee in the State of New South Wales, did use a carriage service in a way that reasonable persons would regard that use as being, in all the circumstances offensive, contrary to section 474.17(1) of the Criminal Code 1995 (Cth), and further 2. That (he) between 22 August 2015 and 23 August 2015 at Junee in the State of New South Wales, did use a carriage service to solicit material from BS, and the material is child pornography material, contrary to section 474.19(1) of the Criminal Code, and further 3. That (he) between 22 August 2015 and 23 August 2015 at Junee in the State of New South Wales, did use a carriage service to transmit communications to the recipient, namely BS, being someone who was under 16 years of age, with the intention of procuring the recipient to engage in sexual activity with another person, being someone who was at least 18 years of age, contrary to s 474.26(2) of the Criminal Code, and further 4. That (he) between 22 August 2015 and 23 August 2015 at Junee in the State of New South Wales, being at least 18 years of age, did use a carriage service to transmit communications to the recipient, namely BS, being someone who was under 16 years of age, which included material that is indecent, contrary to s 474.27A of the Criminal Code, and further 5. That (he) between 1 June 2016 and 8 July 2016 at Junee in the State of New South Wales, being at least 18 years of age, did use a carriage service to transmit communications to the recipient, namely DE, being someone who was under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with himself, contrary to section 474.27(1) of the Criminal Code, and further 6. That (he) between 1 June 2016 and 8 July 2016 at Junee in the State of New South Wales, being at least 18 years of age, did use a carriage service to transmit communications to the recipient, namely DE, being someone who was under 16 years of age, which included material that is indecent, contrary to s 474.27A(1) of the Criminal Code, and further 7. That (he) between 1 July 2016 and 8 July 2016 at Junee in the State of New South Wales, being at least 18 years of age, did use a carriage service to transmit communications to the recipient, namely CP, being someone who was under 16 years of age, with the intention of procuring the recipient to engage in sexual activity with himself, contrary to s 474.26(1) of the Criminal Code, and further 8. That (he) between 1 July 2016 and 8 July 2016 at Junee in the State of New South Wales, being at least 18 years of age, did use a carriage service to transmit communications to the recipient namely CP, being someone who was under 16 years of age, which included material that is indecent, contrary to s 474.27A of the Criminal Code, and further 9. That (he) between 1 August 2016 and 22 August 2016 at Junee in the State of New South Wales, being at least 18 years of age, did use a carriage service to transmit communications to the recipient namely HW being someone who was under 16 years of age, with the intention of procuring the recipient to engage in sexual activity with himself, contrary to s 474.26(1) of the Criminal Code, and further 10. That (he) between 1 August 2016 and 22 August 2016 at Junee in the State of New South Wales did use a carriage service to solicit material from HW and the material is child pornography material, contrary to s 474.19(1) of the Criminal Code, and further 11. That (he) between 1 August 2016 and 22 August 2016 at Junee in the State of New South Wales, being at least 18 years of age, did use a carriage service to transmit communications to the recipient, namely HW, being someone who was under 16 year of age, which included material that is indecent, contrary to s 474.27A(1) of the Criminal Code, and further 12. That (he) on 14 March 2017 at Junee in the State of New South Wales, did use a carriage service in a way that reasonable persons would regard that use as being, in all the circumstances, offensive, contrary to s 474.17(1) of the Criminal Code, and further 13. That (he) on 23 April 2018 at Junee in the State of New South Wales, did without reasonable excuse fail to comply with his reporting obligations pursuant to the Child Protection (offenders Registration) Act, 2000, contrary to section 17(1) of the Child Protection (Offenders Registration) Act, 2000 (NSW). 1. Although an indictment was presented at the Wagga Wagga District Court on 28 February 2019 it is accepted that pleas of guilty were entered initially in the Local Court. The pleas of guilty should be regarded as having been entered at the earliest opportunity. In respect of count 13 on the indictment the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty. The situation in respect of counts 1 to 12 inclusive is a little more complicated. 2. Until relatively recently the approach taken to Commonwealth offending that in respect of pleas of guilty an offender received consideration for facilitating the course of justice conformably with the principles enunciated by the High Court in Cameron v The Queen (2002) 209 CLR 339 especially at [9]-[13]. See also the decisions of the New South Wales Court of Criminal Appeal in R v Tyler and Chalmers [2007] NSWCCA 247 and more recently R v Lee [2012] NSWCCA 123 per Hoeben JA (as his Honour then was)(Hidden & Beech-Jones JJ agreeing) at [58]-[60]. 3. However, there is now the decision of Xiao v R [2018] NSWCCA 4, in which at [277]-[278] the court (Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum J (as her Honour then was) and Bellew J) said: In providing for the fact of a plea to be taken into account, in our opinion, the legislature intended the encouragement of guilty pleas not only to provide evidence for remorse or contrition but to assist in the administration of justice. The principle of legality should not affect the attainment of that object. In these circumstances it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that Tyler and the cases which followed it provide to the contrary, they should not be followed. 1. In the circumstances, noting that the offender indicated pleas of guilty at the earliest opportunity, the offender should be afforded consideration for facilitating the course of justice taking into account the utilitarian value of the pleas of guilty in the form of a numerical discount of 25% in respect of counts 1 to 12 inclusive. 2. The Commonwealth DPP has provided the court with comprehensive written submissions, for which the court is very grateful. Those submissions set out the maximum penalties. The maximum penalty for the offence of Use Carriage Service to Procure Person under the age of 16 years contrary to s 474.26(2) of the Criminal Code is 15 years imprisonment and/or a pecuniary penalty of $162,000. The maximum penalty for the offence of Use Carriage Service to Solicit Child Pornography Material contrary to s 474.19(1) of the Criminal Code is 15 years imprisonment and/or a pecuniary penalty of $162,000. The maximum penalty for the offence of Use Carriage Service to Transmit Communication to a Person under 16 years with Intention of Making it easier to Procure them in Sexual Activity (or grooming) contrary to s 474.27(1) of the Criminal Code is 12 years imprisonment and/or a pecuniary penalty of $129,600. The maximum penalty for the offence of Use Carriage Service to Transmit Indecent Communication to Persons Under 16 contrary to s 474.27A(1) of the Criminal Code is 7 years imprisonment and/or a pecuniary penalty of $75,600. The maximum penalty for the offence of Use Carriage Service to Cause Offence contrary to s 474.17(1) of the Criminal Code is 3 years imprisonment and/or a pecuniary penalty of $32,400. The maximum penalty for the state offence of Fail to Comply with Reporting Obligations contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 is 5 years imprisonment and/or a pecuniary penalty of $55,000. I note that counsel for the offender conceded at the sentence hearing that sentences of imprisonment must be imposed in this matter. Facts 1. The facts are contained with a comprehensive set of agreed facts at tab 3 of the Crown tender bundle exhibit "A" on sentence. Although I will go into detail of the facts a little later within these remarks I note the following: Count 1 relates to RC, who was 16 years of age; Counts 2, 3 and 4 relate to BS who was 14 years of age; Counts 5 and 6 relate to DE who was 15 years of age; Counts 7 and 8 relate to CP who was 12 years of age; Counts 9, 10 and 11 relate to HW who was 13 years of age; Count 12 relates to TM who was 17 years old, and Count 13 is the State offence of Fail to Comply with Reporting Obligations. The names of the victims have been anonymised to comply with the relevant legislation relating to the identification of child victims. The names of the victims are set out in the comprehensive statement of facts within the tender bundle, exhibit A on sentence. Count 1 – Using a Carriage Service to Cause Offence 1. The offender sent RC a friend request on Facebook using the profile "Sean Walsh". Ms C accepted the "friend" request and the offender sent her private messages purporting to be a representative of "Kickstart Photography". Between 27 June 2015 and 12 July 2015 the offender and RC sent each other a number of messages, including the following: Offender: Have you done any modelling shoots before? O: OK how old are you at present, hun? Victim: 16. Isn't Kickstart Photography for like dirtbike riding/racing? O: If interested you are paid $5000. How do you look in skinny jeans? O: OK thank you Hun. What sizes are you? O: OK will be after 2pm I don't have laptop on me. What breast size are you? O: OK are you bi hun? V: How is that relevant? O: Just asking that's all hun. Would you like $5000 in your account now? V: My breast size is irrelevant also O: We supply the clothing items so we do need the sizes V: I can supply my own bra O: Would you be comfortable semi nude? V: No V: I am 16 I am not letting you take semi nude photographs of me, that's child pornography O: Your aloud [sic] to be topless you just can't be fully nude. 1. The victim felt "creeped out", awkward and disgusted by the messages she received from the offender. 2. The offence was committed by words of the offender including a request for semi-nude photographs. There were no photographs sent by the offender. Although there were a number of exchanges I understand the facts to indicate that the one extracted is the only one that breaches the relevant legislation. The victim was 16 years of age. In all of the circumstances the matter is moderately below mid-range for matters of that type that come before the court. Counts 2, 3 and 4 – Using a Carriage Service to Solicit Child Pornography Material; Using Carriage Service to Procure Persons Under 16 years of age; Using a Carriage Service to Transmit Indecent Communication to Persons Under 16 years of age 1. On 16 December 2015 a report was generated by the National Centre for Missing and Exploited Children in relation to an online conversation between the offender, purporting to be Peter Jones and the victim BS, who was 14 years of age. The conversation commenced at 1.42pm on 22 August 2015 and continued to 23 August 2015 at 6.28am. The IP address was registered to the offender's mother. A mobile phone number was provided by "Peter Jones" to the victim, which number was registered to the offender. 2. During the course of the conversation the offender asked the victim to send him images of her engaging in sexual acts with her 19 year old boyfriend and offered her $5000. The offender sent the victim a number of messages including: * Would you like $5000 * Wil give you $5000 if you can get him in you * I will pay you half then send you the rest * OK, when you get your tits covered in cum like I said I have $5000 for you * Cook I have a couple of pics bub I really want to blow * BSB and account number hun * Put a pic here in your Facebook cupping your tits I will see it then you delete it then I give my number * Send me a test so I can screenshot what photos are there 1. There was also the following exchange: O: Are you with anybody now V: Yeah, my bf is asleep beside me O: How old are you both V: I'm 14 he's 19 O: Will give you $5000 each can get him in you V: If you got that much cash come fuck me yourself O: You have a partner you two fuck hun O: Do you have Kik O: Do you have FB O: Can we talk in there? What's your oldest guy? V: No not yet, sorry. And 38 O: OK how did you like to fuck O: OK nice Hun I'm 8.5 inch O: Your anal girl are you Hun O: When did you last take cock O: How many fingers are you Hun O: OK nice where do you like a guy to blow O: What's your favourite position O: Love giving doggy O: Can you slide on your bf now? O: Can I have some nudes of you? O: Ok hun I wish you were on my cock now I am rock hard. 1. The offender and the second victim further discussed sexual acts and how he could transfer the money to her. The second victim provided her bank details to the offender. 2. The charge of Use Carriage Service to Solicit Child Pornography relates to requesting photographs of the breasts of the victim including photographs with ejaculate on them. The charge of Use Carriage Service to Procure Recipient to Engage in Sexual Activity with person Over 18 relates to the encouragement to have sex with the victim's boyfriend. The offence of Transmit Indecent Communication relates to the latter part of the second conversation detailed in the facts. 3. So far as the charge of Use Carriage Service to Solicit Child Pornography the victim was 14 and there were two requests for photographs, including nude photographs. However the request in respect of photographs of the victim's breasts included photographs with "cum" or ejaculate on them. Given the age of the victim and the nature of the request that offence is below mid-range but not significantly so. 4. In respect of the charge of Use Carriage Service to Procure the person with whom it was proposed that the victim have sex was her boyfriend. It is tolerably plain from the victim's responses that she was engaging in sexual activity with that person. That matter is also below mid-range, but again, not significantly so. 5. The charge of Use Carriage Service to Transmit Indecent Communication is limited to the few lines of the exchange as detailed in the facts. Given the part of the exchange to which the charge is limited I am of the opinion that the matter is well below the mid-range of seriousness for matters of that type that come before the court. Counts 5 & 6 Using Carriage Service to Person Under 16 years of age with Intention of Making it Easier to Procure them to engage in sexual activity (groom); Using a Carriage service to Transmit Indecent communication to Persons under 16 years of age. 1. The offender sent DE, aged 15 years (the third victim) a "friend request" on Facebook using the profile name "Peter Jones". She accepted the request, thinking it was a school friend of the same name. Between 1 June 2016 and 8 July 2016 the offender using the name Peter Jones sent the victim about three messages per day using Facebook Messenger. They included: * Asking her to get with someone; * Asking her to go to a motel; * Asking her if she wanted to see her friends having sex; and * Offering her a lot of money to have sex with someone. 1. "Peter Jones" sent the third victim a 30 second video of a female and male having intercourse in the "doggy" position with the male behind the female. 2. The facts recite that the offender messaged the victim about three times per day. The number of messages is part of the grooming. A number of those messages contained the sexualised content evidence from what is set out in the facts. Noting the lack of detail and specifics, but the number of communications and the victim being 15, the grooming offence is below mid-range but not significantly so. The charge of Use Carriage Service to Transmit Indecent Communication relating as it does to the sending of the explicit video is within the mid-range of seriousness. Count 7 & 8 - Using a Carriage Service to Procure Persons Under 16 years of age; Using a carriage service to transmit indecent communication to persons under 16 years of age 1. CP the fourth victim, a 12 year old girl, had a Facebook account that listed her date of birth. The offender sent the victim private messages on Facebook and Snapchat using a profile in the name of Peter Jones. The fourth victim initially ignored the messages but "Peter Jones" continued to message her about five times per day between 1 July and 8 July 2016. In one message he offered to pay her $4000 for sex. The fourth victim told him to "go away", in response the offender sent her a photograph of an erect penis. "Peter Jones" then sent the fourth victim the same video that he sent the third victim, i.e. the 30 second video of a male and female having intercourse with the male behind the female 2. The victim was 12 and the offender would have been aware of that because her Facebook account listed her age. There was a direct offer of money for sex. The offence of Use Carriage Service to Procure a Person under 16 years is within the mid-range of seriousness. 3. The transmission of indecent material included a photograph of an erect penis and the video. Noting the age of the victim and the type of material transmitted that matter is slightly above the mid-range of seriousness. Counts 9, 10 & 11 – Using a Carriage Service to Procure Persons under the age of 16 years, Using Carriage Service to Solicit child Pornography Material; using a Carriage Service to transmit indecent communication to persons Under 16 years of age 1. Between 1 August 2016 and 22 August 2016 the offender using the name Peter Jones contacted HW, a 13 year old girl, and they messaged each other by Snapchat and by phone. 2. During the course of the messaging conversation Peter Jones asked the fifth victim for a photograph of her feet, which she sent him. He then asked her for nude photographs, which initially she declined. However, the offender using the name Peter Jones continued to request photographs from the victim. She felt harassed and annoyed so she sent a photograph of her breasts in a bra to him. He then sent a photograph of his penis and she sent him a photograph of herself naked from the waist down. 3. The offender using the name Peter Jones asked the fifth victim if they could meet up and have sex for which he would pay $3000. She agreed and they arranged to meet on 20 August 2016 at Southcity Shopping Centre at Glenfield Park, a suburb to the south-west of the CBD of Wagga Wagga. Both agreed that they would bring a friend and it was also agreed that he would give her the money after they had sex. The victim went to the shopping centre but the offender either did not attend or did not approach the victim. 4. The offender using the name Peter Jones asked the fifth victim for her telephone number, which she provided. He sent her text messages and she saved the number on her phone. "Peter Jones" then told the fifth victim that he had given her phone number to a man called Stuart who would contact her and arrange to meet up. Stuart sent a message on 21 August 2016 asking "what are you up to". On 21 August 2016 the offender using the name sent the fifth victim the following messages to which the victim did not respond: * Are you with him now * Ok have fun with his cock * How's his cock feeling * Where's his cock now * No money then 1. The facts do not indicate whether or not the offender was aware of the victim's age however the facts do recite that the victim sent the offender photographs of herself. Common sense would dictate that it must have been obvious from the photographs that the victim was adolescent. The victim was 13. 2. The charge of Use Carriage Service to Procure a Person Under 16 years involved an agreement to meet including time, date and place. It also included an offer of payment of a substantial sum of money. The offender either did not go to the shopping centre or did not approach the victim. Even so, given the other factors to which I have just referred the offence of Use Carriage Service to Procure a Person under 16 is above mid-range, but not significantly so. 3. The offence of Use Carriage Service to Solicit Child Pornography is in my opinion within the mid-range of seriousness. The offender made a number of requests and the facts recite that the victim felt harassed and annoyed by the requests. Separate photographs of her breasts and her naked from the waist down were sent. 4. The offence of Using a carriage service to transmit indecent communications to a person under 16 is also in my opinion within the mid-range of seriousness. Again, I note the victim's age. The offender sent a photograph of his penis. There are also the messages sent on 21 August 2016. 5. As the Commonwealth DPP submits (paragraph 8b) of the written submissions, the most serious individual instances of offending are counts 9, 10 and 11 which relate to the offender making actual plans to meet the victim. Count 12 – Using Carriage Service to cause offence 1. On 14 March 2017 the offender sent TM, a 17 year old girl, a photograph via Snapchat of cash being a number of bank notes and a money bag accompanied by a message, "what would you do for 2 grand". The victim replied that she did not want his money. 2. The offender then sent a photograph of his penis to the victim. The victim describes being "grossed out" by that photograph. He sent messages offering $100 for a photograph of her feet, $400 for a photograph of her breasts with semen on them and all of the money if she would have sex with someone. 3. The sixth victim blocked the offender on Snapchat after which he sent her similar messages on Facebook. 4. This matter is slightly below the mid-range of seriousness. The offender sent a photograph of his penis to the victim and one of the requests for photographs included a request of a photograph of her breasts with semen on them. The victim was 17 years of age. Count 13 – Fail to Comply with Reporting Obligations 1. This is the only offence for which the offender appears for sentence that is contrary to State as opposed to Commonwealth legislation. In 2014 the offender was placed on the Child Protection Register. He is subject to reporting obligations until 11 February 2022. Those obligations include having to participate in an annual review. He is required to report to police if any of his personal information changes. The personal information in respect of which he is required to advise police includes all internet registration details, chat room information, instant messaging information, phone numbers and social networking site information. 2. On 2 April 2014 the offender signed a Form 4, which is an acknowledgement form declaring personal information as required, including residence, phone numbers, employer, occupation, vehicle and internet registration details. On 9 January 2015 the offender acknowledged that he had been notified of changes to his reporting obligations. In April 2015, February 2016, November 2016 and April 2017 the offender attended police stations to update his personal information or participate in annual reviews. On each occasion the offender signed a form 4 acknowledging the information he provided was true and correct. 3. On 23 April 2018 the offender participated in an annual review during which he was specifically asked by police if all his personal details were correct and if he had any social media profiles. He told police that he did not and signed a Form 4. 4. The offender was subsequently arrested and two mobile phones were seized. Police searched the offender's car and located two mobile phones. Access to the devices was gained with permission from the offender and police identified that various internet sites had been accessed and social medial accounts created including on Facebook, Snapchat, Instagram, Grindr, Kik and Tinder. The offender had not advised police of these accounts in accordance with his reporting obligations. 5. Given the last sentence of the paragraph immediately above I proceed on the basis that the offence of Fail to Comply with Reporting Obligations relates to the failure to advise of his access to the various social media sites accessed and the social media accounts created. The offender had ample opportunity to advise police of these matters. There are a number of different sites and accounts. For these reasons the offence of Fail to Comply with Reporting Obligations is a typical example of that type of offence and is within the mid-range of seriousness. However, it is to be noted that the access to these phones and the sites enabled the other offending for which the offender appears for sentence. 6. In making the assessment of the criminality of the various offences in counts 1 to 12 I have had regard to the decision of the Court of Criminal Appeal in Trector v R [2008] NSWCCA 151 at [97]-[99] and R v De Leeuw [2015] NSWCCA 183 at [72b]. Although the matters are assessed individually it is important to note that the offending occurred over a period of almost three years (i.e. June 2015 to April 2018) and the matters involve six different teenage victims but counts 1 to 12 inclusive were committed between June 2015 and March 2017. On the material before me I could not be satisfied beyond reasonable doubt other than that the offending ceased of its own accord. 7. I have also taken into account the submissions of the parties. The Commonwealth DPP submitted that the matters were within the mid-range of seriousness while I understood Mr Keller to submit on behalf of the offender that the matters were slightly below mid-range. Criminal History 1. The offender was born on 5 October 1989 and accordingly was aged between 25 and 28 years during the period of offending, which occurred between June 2015 and April 2018. In 2014 he was convicted of one charge of Produce, Disseminate or Possess Child Abuse Material and one count of Use Carriage Service to Menace, Harass or Offend. In respect of the state offence he was released on a bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act, 1999 and in respect of the Commonwealth offence was released on a recognizance to be of good behaviour for 18 months pursuant to s 20(1)(a) of the Crimes Act 1914. Both of those orders of conditional liberty were current for at least a portion of the offending for which the offender appears for sentence. 2. The offender is entitled to some slight degree of leniency because of his limited record. However, part of the offending for which he appears for sentence was committed while subject to conditional liberty. As counts 1 to 12 inclusive are Commonwealth offences s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply. However, it is uncontroversial that offending in breach of an order of conditional liberty is a factor of aggravation – see for e.g. R v Jones unrep NSWCCA 30.6.1994; R v Wallace [2007] NSWCCA 63 at [15] and R v AD [2008] NSWCCA 289 at 41]. Section 21A(2)(j) of the Crimes (Sentencing Procedure) Act however applies to count 13 on the indictment. Sentence Assessment Report (SAR) 1. The court is assisted by a Sentence Assessment Report to which is annexed a further report headed Case Note Report that is principally directed to the issue of the likelihood of re-offending. 2. The SAR sets out the offender had the benefit of a supporting upbringing and he lived at home with his parents at the time of the offending. Prior to his remand in custody the offender was working as a train driver. This was amplified in the offender's evidence, to which I will return later in these remarks. 3. The report also sets out that the offender related feelings of social rejection and trauma associated with historical school bullying. This was also amplified in the offender's evidence. The offender told the author of the report that he was driven by loneliness and a lack of physical intimacy in his life. 4. Further, the report sets out that the offender described feelings of shame and embarrassment regarding his offences and acknowledged that he had caused his victims psychological pain. He maintained that he never intended to meet the victims. The agreed facts would support this. The offender told the author of the report that he needed to erase all social media from his life if he was to avoid future offending. The offender also said this in his evidence. 5. Turning to the Case Note Report, which at paragraph 2 sets out the purpose of the consultation is to provide an actuarial risk assessment and comment regarding the offender's eligibility for sex offender treatment programs. The Report notes that the CCO (Community Corrections Officer) noted that Mr Walsh appears to show little insight into his offending behaviour and had to be prompted in relation to understanding the impact his offending would have had on the victims. 6. Using the Static-99R instrument, which is an instrument designed to assist in the prediction of sexual recidivism the offender was found to be in the well above average category. It was determined that the level of supervision required is high. 7. The report then goes on to say that if the offender is to receive a custodial sentence (which in this case is accepted by all parties as inevitable) the offender would be eligible to apply for a specialist sex offender treatment programme for offenders assessed to be in the high-risk range of sexual recidivism. The report goes on to state that, "If it is the intention of the court that he has the opportunity to access specialist sex offender treatment in custody he would need a non-parole period of 24 months". That time would allow for further assessment, submission of the application, waiting time and participation in the treatment program. 8. Noting the assessment of the Department of Community Corrections as medium/low likelihood of re-offending, the breaches of conditional liberty, the matters on the offender's criminal history and the contents of the Case Note Report I cannot find on the balance of probabilities that the offender is unlikely to re-offend. General Deterrence 1. The Commonwealth DPP appropriately submits (paragraph 21, written submissions) that general deterrence is a highly relevant factor is sentencing offences of this nature because of the paramount public interest in promoting the protection of children. The decision cited as authority is R v De Leeuw [2015] NSWCCA 183. Johnson J in that decision said at [72h]: There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market: R v Jones at 52 [9]; DPP (Cth) v D'Alessandro at 484 [23]. 1. At [72c] his Honour said General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]-[36]; DPP (Cth) v D'Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34]. 1. Earlier McClellan CJ at CL (Latham & Price JJ agreeing) in R v Asplund [2010] NSWCCA 316 at [50] said: 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 sentences of appropriate severity. 1. It would seem that the same general principles that apply to child pornography type offences apply to the other criminality for which the offender appears for sentence – see for e.g. R v Gajjar (2008) 192 A Crim R 76. 2. I also note the recent decision of DPP (Cth) v Beattie [2017] NSWCCA 301 at 116ff. Further, given what was said by Price J at [145] of that decision it is curious that the Director's representative submitted that the court was unable to impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act. Subjective Factors 1. The offender gave evidence and was cross-examined. The offender also relied on a letter he wrote that became exhibit 2 on sentence. That letter attains more weight as the offender gave evidence and the prosecution were able to test the contents of that letter. A psychological report from Mr John Sheppard, Psychologist was tendered and became exhibit 1 on sentence. 2. The offender acknowledged that his father was in court and that he recognised that he would be spending further time in custody. Upon his eventual release from custody he wishes to pursue the occupation of a truck driver. He will be able to follow that work despite these matters. He will be unable to follow the occupation of a train driver, which was his occupation until his arrest on these matters. 3. I accept that the offender was good at his job as a train driver. He was on Grade 4 with Grade 6 being the highest. I understood his evidence to be that had he continued in that work he would soon be training other train drivers. He earned in the vicinity of $110,000 to $130,000 per year. It was perfectly obvious listening to the offender's evidence on this aspect that he was very keen on the occupation, which now he can no longer follow because of his offending. 4. In his evidence the offender said that he would be interested in undertaking courses including a sex offender's course and an addictions programme. He said in evidence, which I accept, that he is eligible to undertake these courses once he is sentenced. It is notorious that remand prisoners awaiting sentence have very little if any access to courses that might assist in rehabilitation. He accepts that once he is eventually released he will need to undertake counselling as suggested by Mr Sheppard. Brochures relating to the programmes and institutions were tendered to the court in the course of the offender's evidence. 5. Exhibit 2, the letter from the offender, commences, "I stand before you today with remorse for what I have been charged with. If I could go back and change what I have done I would, however I cannot do that. I am remorseful towards all victims and hope that one day they can find it in there (sic) hearts to forgive me…" This was confirmed in evidence. The offender said in evidence that he was remorseful for what he had done, he felt really sorry for all the victims, he knows he should not have done what he did and he is sorry for all the pain and suffering that he put the victim's through. I carefully observed the offender during his evidence. I accept the expressions of remorse are genuine. I am constrained to comment that it is refreshing to have an offender express remorse in their own words rather than the usual, "I am very remorseful for what I have done", which often gives the impression of being learnt by rote. 6. The offender also said in evidence that he is in protection away from the main prison population. I understood this to be because of the nature of the offending. On one occasion while housed at Bathurst Gaol he was in his cells for five days straight. His mother works in administration at a different correctional centre and she was unable to visit him. The offender became visibly and in my view genuinely upset when he told me that. The reality is that the courses in which the offender wishes to participate are conducted at correctional centres other than his mother's place of employment and accordingly he will need to move away from where at least some of his family are able to visit. 7. Further, the offender acknowledged that he was on conditional liberty at the time of the offending. He appeared to me genuine in his desire not to re‑offend. He said that he would ensure that he does not re-offend by deleting all social media and that he would not do anything stupid again. 8. The DPP's representative cross-examined the offender and took him to the orders of conditional liberty to which he was subject at the time of this offending. When asked why the court would believe that he was sorry this time the offender became visibly upset and answered with words to the effect of, "I don't know how to answer that". This to me indicated that the offender was genuine in the evidence that he was giving. 9. The offender was also cross-examined on parts of Mr Sheppard's report. The offender maintained that he was bullied at school. The point was well-made by the Director's representative that the same type of social setting in which the offender found himself made him susceptible to this type of offending. 10. I turn now to Mr Sheppard's report, exhibit 1 on sentence. Mr Sheppard was of the opinion (p 2) that the offender responded openly and discussed the issues without being evasive or dismissive. There were no obvious symptoms of a thought disorder or perceptual disturbance. 11. The report goes on to set out that the offender had the benefit of a supportive and loving family without exposure to violence, alcohol or drugs. He was constantly bullied at primary and secondary school because of his size and appearance. He became isolated and had a poor view of himself. The offender has had a very limited history of relationships. 12. Then the report goes on to the employment history of the offender. Later at p 6 the author notes, "The only area of his life where he seems to have been comfortable and competent was in his employment as a train driver. Unfortunately it is understood that he can no longer return to this employment…" 13. The report sets out that the offender had a history of asthma, which affected his ability to participate in sporting activities. 14. According to the report (p 4) the offender has struggled with the current court matters and has led to thoughts of self-harm but he has not acted on those. The offender appeared in evidence to be more accepting of his situation that it appears in Mr Sheppard's report. The remorse of the offender is noted. I have already made a positive finding of remorse in favour of the offender. I note that at p 5 Mr Sheppard notes, "Sean (offender) reflected that over the course of his life he had become isolated lonely and had poor social skills". That was very much the impression I gained of the offender from his evidence. 15. Not surprisingly Mr Sheppard recommends further treatment and notes that if the offender is given a custodial sentence he will need to be assessed by the medical section at the gaol for symptoms of depression and anxiety and that he may need to access counselling in relation to continued incarceration and adjustment issues. I will direct a copy of Exhibit 1 on sentence be attached to the warrant that accompanies the offender back to custody. 16. I accept that the offender is genuine in his stated intention to undertake courses and not to re-offend. However I am not prepared to make positive findings on balance that the offender is unlikely to re-offend or that there are good prospects of rehabilitation. Much will depend on the manner in which the offender engages in the courses while in custody and upon his eventual release. 17. I am very firmly of the opinion that there is need for an extended period of supervision upon the offender's eventual release to ensure that he is equipped with the necessary skills to ensure that he does not relapse and further to ensure that he is properly and adequately re-integrated into the community. Submissions of the parties 1. Mr Keller submitted that the court had the benefit of seeing and hearing the offender in the witness box. It should be tolerably plain from what I have said already that I was quite impressed with the offender as a witness. The submission continued that the offender has lost something that he was good at, namely driving trains, and because of this the offender's life has been significantly impacted. 2. The submissions continued that I would find the offender is remorseful, which I have done. Further it was put that the offender now realises that there are people and places that can assist him. I accept that the offender is genuine and motivated in his intention to pursue treatment and counselling. It was acknowledged that there would need to be a sentence of full time imprisonment imposed. In this regard I note s 17A of the Crimes Act 1914 and clearly a sentence of imprisonment is the only appropriate sentence in this matter. It was put that I would allow a greater period of time on parole. I have already made positive findings in that regard. 3. The court is extremely grateful to the Director's representative for the comprehensive and helpful written submissions provided. The court is also grateful to the Director's representative for the table of comparative cases and the number of appellate and first instance decisions. I record that the decision of her Honour Judge Wells SC in the matter of DPP (Cth) v Aboud 16.7.2016 was particularly helpful as to the mechanics of formulating the sentence in this matter. 4. The submissions continued that the offences were mid-range. I have been careful to assess each of the individual offences but have made more general observations on the nature of the overall offending. 5. The significance of general deterrence was appropriately emphasised and in particular the decision of R v De Leeuw to which I have referred and from which I have extracted in the course of these remarks. It was appropriately put that the sentence will need to be appropriate in all of the circumstances and that the offences are abhorrent. 6. It was put on behalf of the Director that the court would not be able to make positive findings that the offender was unlikely to re-offend or that there were good prospects of rehabilitation. I have not made positive findings in favour of the offender in respect of those matters. 7. The Commonwealth also submitted, correctly in my view, that the court would not find as a mitigating feature the custodial conditions of the offender. The offender gave some evidence but I could not find on balance that the conditions are going to be onerous. 8. Otherwise, I have thoroughly read and considered the written submissions and I note that I have referred to those submissions on a number of occasions within these remarks. Section 16A Crimes Act 1914 (Cth) 1. It will be necessary for me to consider the provisions of s 16A of the Commonwealth Crimes Act 1914. I acknowledge that I am required to impose a sentence that is of appropriate severity in all the circumstances. 2. I have dealt with in some detail the nature and circumstances of the offences. I have set out the facts and made an assessment of the seriousness of the individual matters and made observations of the offending overall. There are no other offences that are required or permitted to be taken into account. The offending can properly be described as forming a course of conduct. The knowledge of the personal circumstances of the victims are limited to what is in the facts, in particular their age, which has been factored into the findings on the seriousness of the matters. There is no evidence on which I could be satisfied that here was any physical injury, loss or damage resulting from the offence beyond what is set out in the facts as to the victim's reactions. There is no evidence in respect of any of the victims of ongoing issues or sequelae. There are no victim impact statements to be considered. 3. For reasons set out earlier in these reasons I am satisfied that the offender has shown contrition, which I have also referred to as remorse. There is no issue of making reparation. The pleas of guilty are acknowledged at the beginning of these reasons and the appropriate discount set out. There is nothing I can take into account so far as co-operation with law enforcement officials is concerned. I have dealt with the issue of general deterrence. There must also be specific deterrence factored into the sentence noting that the offending was subject to conditional liberty for like offending. I acknowledge the need for the sentence to reflect that the offender is adequately punished for the offending. I have dealt with the character, antecedents, age, means and physical and mental condition of the offender at various places within these remarks, in particular when dealing with the criminal history and the subjective matters. I have dealt with the issue of prospects of rehabilitation. Section 16A(2)(p) is not relevant as there is no evidence of any adverse impact on any family member. 4. I note that I am required to impose a sentence for each matter and nominate the commencement date. However, I am able to set a single non-parole period in respect of the Commonwealth offences. 5. As I indicated at the sentence hearing there will need to be some partial accumulation of the sentences to take into account the multiplicity of offending, the period of time over which the offending occurred and the fact that there are six different victims. Further, I indicated at the sentence hearing that I proposed to make the sentences in respect of the individual victims concurrent but the sentences would be partially accumulative on each other. I did not understand either counsel to dissent from this course. Formal orders 1. In respect of each of the thirteen counts on the indictment to which the offender has pleaded guilty he is convicted. The sentences that I am about to impose have had applied the discount or consideration for the plea of guilty and the facilitation of the course of justice. In some cases there has been some minor mathematical rounding down in favour of the offender. 2. The offender is sentenced as follows: 1. In respect of count 13 a fixed term of 15 months imprisonment to commence on 23 April 2018 and which will expire on 22 July 2019. I have imposed a fixed term as any period on parole would be subsumed by sentences to be imposed in other matters. 2. In respect of count 1 a sentence of nine months imprisonment to commence on 23 October 2018. 3. In respect of count 12 a sentence of 15 months imprisonment to commence on 23 January 2019. 4. In respect of each of counts 5 and 6 a sentence of 2 years and 3 months to commence on 23 July 2019. 5. In respect of counts 2 and 3 a sentence of 2 years and 6 months to commence on 23 January 2020. 6. In respect of count 4 a sentence of 1 year 3 months to commence on 23 January 2020. 7. In respect of count 7 a sentence of 3 years to commence on 23 July 2020. 8. In respect of count 8 a sentence of 2 years and 6 months to commence on 23 July 2020. 9. In respect of count 9 a sentence of 4 years and 6 months to commence on 23 April 2021. 10. In respect of count 10 a sentence of 3 years to commence on 23 April 2021. 11. In respect of count 11 a sentence of 2 years and 3 months to commence on 23 January 2021. 1. I am required to comply with s 16F of the Crimes Act 1914 and explain the sentence to you. The total effective sentence is one of 7 years and 6 months imprisonment to commence on 23 April 2018 and which will expire on 22 October 2025. That sentence includes the sentence for the twelve Commonwealth offences being counts 1 to 12 inclusive on the indictment and the New South Wales offence which is count 13 on the indictment. The sentences for the Commonwealth offences commence on 23 October 2018. 2. As I read s 19AB of the Crimes Act 1914 the court is required to set a single non-parole period in respect of the Commonwealth offences. However it further my understanding that no part of the sentence for the state offence can be included in that single non-parole period and accordingly the single non-parole period will need to commence on 23 October 2018. In respect of counts 1 to 12 on the indictment I set a single non-parole period of 3 years and 9 months to commence on 23 October 2018 and which will expire on 22 July 2022. That means that you will be eligible for release to parole at the expiration of that non-parole period. It is a matter for the parole authorities but almost certainly you will be subject to supervision by the Department of Community Corrections. 3. The matter is complicated because of the mix of Commonwealth and state offences on the one indictment and the difference in the sentencing regime for each of those types of offences. However, the actual period that you will spend in custody for all of the 13 offences before you are eligible for release to parole taking into account the portion of the sentence for the state offence in count 13 on the indictment is 4 years and 3 months. The actual period in custody is approximately 57% of the total effective sentence. I note the effect of the decision of the High Court in Hili & Jones v The Queen [2010] HCA 45. 4. I recommend that the offender undertake and participate in a sex offender's programme while in custody. 5. I recommend that any period of parole be supervised by the Department of Community Corrections. 6. I direct that a copy of exhibit 1 on sentence be attached to the warrant that accompanies the offender back to custody. ********** Amendments 21 March 2019 - Spelling of solicitor's name corrected. 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: 21 March 2019