District Court New South Wales Medium Neutral Citation: R v McKeag [2018] NSWDC 523 Hearing dates: 10 December 2018 Date of orders: 10 December 2018 Decision date: 10 December 2018 Jurisdiction: Criminal Before: Judge W Hunt Decision: Convicted. Sentenced to imprisonment for a period of 2 years and immediately released upon entering into a recognizance without security , in the sum of $500 for a period of 3 years Catchwords: CRIMINAL LAW - Sentence – Use carriage service to send indecent material – Vulnerable victim Legislation Cited: Commonwealth Criminal Code, Commonwealth Crimes Act. Cases Cited: R v Asplund Asplund v R [2010] NSWCCA 316 Elliot and Harris No 2 (1976) 13 SASR 516, R v Nalos [2013] NSWCCA 90. Category: Sentence Parties: The Crown Robert McKeag Representation: Counsel: C Brain – The Crown S Shaudin – The Offender Solicitors: Director of Public Prosecutions (Cth)– The Crown File Number(s): 2017/159162 Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant Judgment 1. HIS HONOUR: Robert McKeag is before the Court for sentence in relation to one offence which is in breach of s 474.27A(1) of the Commonwealth Criminal Code, which is an offence of using a carriage service to send indecent material to a person less than 16 years of age. That matter has a maximum penalty of seven years. I have regard to the maximum penalty as a guidepost and for purposes of comparison between this case and the worst possible case. There is no matter before the Court on a schedule to s 16B(a) of the Commonwealth Crimes Act. 2. I am obliged to sentence Mr McKeag in accordance with Pt 1(b) of the Commonwealth Crimes Act. The governing principle of the sentencing exercise is set out at s 16A(1) which is, the Court must impose a sentence that is, "of a severity appropriate in all the circumstances of the offence". I am obliged to take into account to the extent relevant the matters that are listed in s 16A(2) and I am obliged to have regard to the restraint imposed by s 17A. For the purpose of s 16A(1) and (2)(a) in relation to the maximum penalty and the need to ensure adequate punishment; the seriousness of this class of offence is reflected by the maximum penalty of seven years. I have regard to that penalty as a yardstick for the appropriate sentence when I balance all the other relevant factors. I also have regard to the legislative objective of suppressing online transmission of indecent material to those who are under the age of 16 years. 3. In terms of the nature and circumstance of the offence for purposes of s 16A(2)(a) I do not intend to recite all of the agreed facts which are set out in the 13 page document as part of Crown bundle which is exhibit A. The following short details are drawn from that document. The offender was 30 years of age at the time of the relevant offending and the victim was 15 years of age. Those persons were known one to the other. The offender and the victim first met in person in July 2016, not long after the victim had turned 15. They had a mutual interest in a game called "Magic the Gathering" and, with others, played that game from time to time at a shop in Port Macquarie. The offender and the victim started to communicate at the offender's invitation by Facebook and all their online communications were by Facebook, and they communicated regularly from 27 September 2016. 4. Relevantly, the offender's profile was in his own name. Although their first communication starting on 27 September 2016 commenced to discuss their common interest in the game referred to above, it is a reasonable characterisation that the offender commenced to introduce sexualised contact commencing on that first day on 27 September 2016 with exchanges by the offender including, "I'm misspelling because you've got me hot and bothered ha‑ha", "I knew you had a dirty mind but I'm shocked ha‑ha", "I know you want to kiss me". Each of those passages and indeed throughout the exchanges the victim replied to each of the offender's communications. 5. There were communications on 27, 28 and 29 September 2016. In exchanges on 29 September 2016 an exchange between the offender and the victim includes: "OFFENDER: I'd reach around you close, exploring your soft warm skin as I pressed in behind you. VICTIM: I'd arch my back into the touch, purring, as goose bumps and shivers lingered with each delicate feeling. OFFENDER: I'd stroke you slowly loving up to your breast, caressing it in my breast, but my lips found your throat. VICTIM: I'd moan from everything. Kiss upon my flesh rolling my hips backward to grind against you." 1. The offender's communications of a sexualised nature with the victim continued to increase in objective gravity, including the offender saying later on 29 September, "Mm fuck I wish I could push you into your covers and fuck you", with the victim responding, "That sounds so fucking good, I really need a hard dick right now". "OFFENDER: "Fuck how you're a virgin, I want you sliding on my cock right now until I shoot my cum in you". VICTIM: Guys don't want anything to do with the big girl. OFFENDER: I want you." 1. Similar sexualised contact continued on 16 October 2016 with multiple communications backwards and forwards between the offence and the victim and again on 19 and 20 October including on 19 October more degrading content including: "OFFENDER: Collaring you and marking you, coating you in my cum. VICTIM: Should I wear my tail and ears, if you're going to be collaring me. OFFENDER: Mm yeah, you're really a virgin? VICTIM: Yes, sadly." 1. Sexualised contact continued on 20 and 25 October, 5 and 8 November 2016. After a conversation that could be properly described as highly sexualised and degrading, on 8 November 2016, the offender sent the victim one picture of his erect penis. There was other brief and unremarkable contacts on 10 and 11 November 2016. 2. Within the content of the online communication it must have become clear to the offender that the victim was 15, was asserting that she had never been kissed, and certainly had not had any personal sexual content. At various stages throughout the communications the offender included messages to the victim such as, "Know that it's not that I don't want to I'm just afraid of hurting you, I'd love you and get attached". On 29 September 2016 as well: "I don't want to hurt you at all, I reckon we move on and keep on being the oddly dysfunctional friends we are...please just delete chat so that we can start over. Okay, you're a close friend, one I don't want to lose because I'm stupid and weak." 1. In one of the messages the offender communicated to the victim that he should not be communicating in this fashion with her because he was 30 and he could go to gaol. At other stages of the conversation he communicated that he was 30 years of age, married, and that did not intend to cheat on his wife. At a different stage on 29 September 2016 the offender said: "I was abused when I was little, it's why I'm so fuzzy with boundaries on what's appropriate. I make stupid mistakes, make people fall for me when I shouldn't, fall for people I shouldn't. Have nearly ruined my marriage because of all the anger and rage I felt." 1. Ultimately, the matter was reported sometime after 11 November 2016. Police ultimately executed a search warrant at the offender's residential premises at Port Macquarie and seized his laptop, his mobile phone, other peripherals and his wife's laptop and her mobile phone. Police found a document that was consistent with further communications between the offender and the victim between 20 and 25 January 2017, but for one reference, that material did not have any sexual content. The only comment that could be read in that way, apparently, was on 24 January 2017 the offender messaged the victim, "I'll spank you if you don't", in response to the victim saying that she was not looking after herself. 2. The offender relied on his right to silence when he was offered an interview with the police. In terms of characterising the objective seriousness of this offending in having regard to the nature and circumstances of the offence, as I have outlined, the following has relevance; the victim was necessarily vulnerable, although she was 15 years, across a range of ages that included any person under the age of 16 years. It was known to the offender that she was inexperienced in life affairs and, on the basis of some of the comments attributed to her, a person with low self‑esteem who had difficulties with her body image, and other interactions with people her own age. 3. The offending took place on numerous days across a four month period. I accept the Crown's submission that the sexual content became both more graphic and more derogatory over time. Given the offender told the victim that what he was doing wrong, was already known to her, and used his own Facebook account, there was a relative ease of detection. That made this offending less serious than some offences where offenders go to great lengths to disguise their age, their appearance and make it hard for them to be located by using false accounts. There is nothing in the material that suggested that the offender threatened the victim or required her to be silent about her interactions with him. On the material before me it would appear that there was voluntary cessation of the criminal activity in advance of the offender knowing he had come to detection. 4. The issue of the offender and the victim being personally known to each other in a social/recreational context before the offending commenced is an issue that cuts in both directions. On the one hand the offender having established a friendly relationship with the victim because of a shared recreational pursuit means that the breach of that trust was greater. Against that, one of the evils of this class of offending is often the anonymity and the misleading of a vulnerable person as to the nature of the true details of the person who they are interacting with. That is not the case here because of the personal relationship. Most of the indecency is contained in the words communicated by the offender to the victim and, even though there was some reciprocal exchanges, that does not worsen the seriousness of the offender's misdeeds. 5. Offences of this class will often include transmission of a great number of graphic images, sometimes in video, as well as still form, and I take into account notwithstanding the serious indecency of the words used that there was one only image, although it was of the offender's own erect penis. I characterise the objective seriousness of the offending at about the midrange. That said, this is objectively a serious class of offence, although it is not as serious as grooming. It still preys on the vulnerability of young people and denies them a level of innocence to which they are entitled to explore sexual matters at their own pace with people of about their own age. 6. In terms of s 16A(2)(d) the personal circumstances of the victim; the victim here was 15 years of age, and was vulnerable because of her age, and because of her apparent naiveté and lack of sexual or romantic experience. Section 16A(2J)(a); it is well accepted that general deterrence is a very important consideration in this type of offence given the significant public interest in protecting children. As McClellan CJ at CL, with whom Latham and Price JJ agreed, in R v Asplund Asplund v R [2010] NSWCCA 316 said in relation to a grooming offence: "The offences of which the respondent was convicted have the potential to do great damage to young persons I the community. They are hard to detect, and general deterrence is of particular significance when sentencing." 1. Similar principles apply to this class of offence albeit that the offending is not quite a serious as grooming just because there is not contemplation of actual physical sexual contact with the juvenile person. Similarly, it is accepted pursuant to s 16A(2J) that there is a need for specific deterrence, particularly given the lengthy passage of offending in this case, and that it is implicit in the offending and accepted by him in his evidence that there was a selfish element of sexual gratification to the offending. 2. In terms of contrition and guilty plea for purposes of s 16A(2)(f) and 2(g) of the Cth Crimes Act, in terms of the contrition I accept unreservedly the emotional evidence that the offender gave. He was palpable in his self‑condemnation of this behaviour and there was an emotional resonance between what he was saying and the way that he said it. Included in his evidence were, "There's not a single day I don't regret my decision", and, "I want badly to atone for my offending". 3. In the circumstances of this matter I accept, apart from his expressions of remorse both to the Court, to assessing professionals and to those who are close to him including his wife, I accept that his plea of guilty is, notwithstanding a strong Crown case, also indicative of his contrition. His plea of guilty was entered in the context of a super call over of Commonwealth matters in July of 2016 in circumstances in which he had been committed for trial on a more serious offence of grooming. 4. He pleaded guilty in circumstances in which the Commonwealth in June 2018 had communicated that a plea would be accepted to a charge of this offence, as opposed to the grooming offence, on which he had been committed for trial. It is accepted by the Crown that he is entitled to a utilitarian discount although not a discount at the top of the available range. There will be circumstances in which the utilitarian discount is applied in a mathematical way, and there will be some circumstances in which the mode of disposition will have regard to the utilitarian discount, this is a case of the latter kind. Although, if it were a case where it was strictly numerical, the utilitarian discount would be about the value of about 20% numerically. 5. I would say at this point that something was made of the fact that this is a matter that can be disposed of by the consent of both parties in the Local Court. I have regard to that issue mutely. Although there is no way of retracing time to see if this was the only matter brought whether it would have been resolved in the Local Court jurisdiction, I certainly do not consider anything binding in the fact that had the matter proceeded in the Local Court it would have had a jurisdictional limit of two years imprisonment. 6. In terms of the offender's character, antecedents, age, means and physical mental condition for purposes of s 16A(2)(n); the offender has no prior criminal record. It is accepted that a lack of prior record is of less importance in the sentencing calculation in this class of offence than for some other matters. Having said that, this is not a matter in which a lack of criminal record put the offender in a position to undertake the offending in contrast with say somebody who uses their unblemished criminal history to acquire a position of trust, such as a teacher, a doctor, or the like. 7. As I have said, the offender gave impressive evidence before me. He became emotionally overwrought at a number of times when he was giving evidence. He adopted as accurate the history that he had given to Sam Borenstein, forensic psychologist, who makes a range of assessments about him. He gave Dr Borenstein a history of being sexually mistreated by his older brother at a time that he was about seven and his brother was about 12 years of age. I asked the offender a number of questions to observe his emotional effect to form a view as to whether I could be satisfied that that such offending (which is said to have taken place across a period of about a year and culminating in at least two instances of penile anal penetration of him) occurred. I formed the view that he was frank and still troubled by that offending against him. I find on the balance of probabilities that he was mistreated in that way. 8. The exact sequelae of that mistreatment by him and this offending cannot be really understood. Suffice to say that the offender is a relatively socially isolated person, who lived in a very small family community, notwithstanding that the abuse I have just discussed which he has never either disclosed nor taken up with the brother who perpetrated it upon him. It is clear from his treatment history and the history he gave to Dr Borenstein, which I accept, that he has been at the effect of depression for many years, certainly pre‑existing his current predicament. Although it is difficult to form the view of a direct causal connection between his depression and the instant offending, it is important to note that even though the offender has submitted himself to psychological assistance over years, that he is now medicated in a way that is proving beneficial to him. 9. I am in a position to give more weight to the report of Dr Borenstein than I would in the absence of a compelling testimony from the offender in support of the history, given Dr Borenstein opines that there is nothing in the offender's history, "to suggest sexual paraphilias or paedophilia". The offender impressed Dr Borenstein as being, "genuinely burdened by guilt and remorse knowing the age of the victim". He assessed the likelihood of Mr McKeag's prospects of reoffending as being extremely low. I accept that assessment. It is a protective factor as found by Dr Borenstein but also by me that his wife is fully aware of the nature of his offending; and has been in Court through the currency of the proceedings. She, in a reference before the Court, says that she remains supportive of him, she speaks of his general good character in other ways and that assessment of him is supported by another referee, Michele Symes, who speaks of community contributions that the offender makes. 10. Accepting that there are limitations to both sources of information for different reasons, I had the benefit of being provided by the offender with some statistics drawn from the Judicial Information Research System of the Judicial Commission. Intermediate Courts of Appeal have repeatedly talked about the limitations of the use of statistics. Particularly given a lack of particularising detail and small cohorts of offenders. That is all relevant to the case at hand. That said, the penalty type for all principle offences of this type across a cohort of 18 offenders dealt with in the New South Wales higher Courts between April 2010 and March 2018 disclose that of those 18, four were sentenced to prison, five were sentenced to an intensive corrections order, seven were bound under conditional release pursuant to s 20(1)(b), and two were dealt with by way of a s 21A recognizance. 11. The Crown provided a small but relevant digest of some potentially analogous cases appended to the careful written submissions by the Crown. As was frankly conceded by Ms Brain, none of the four cases that are set out in that digest are directly analogous. Mr Schaudin provided to me the full report of R v Nalos [2013] NSWCCA 90. That is a matter that Adamson J, with whom Hoeben CJ at CL and Davies J agree, in dismissing a Crown appeal, did not interfere with a fully suspended prison sentence for a grooming offence. Relevantly in para 88 her Honour said: "A custodial sentence will be required in many cases involving offences against 474.27, and 474.27A, however it is not always required. This case was, in my view, one in which a proper exercise of the sentencing discretion did not require the imposition of a custodial sentence." 1. The Crown here contends that nothing less than fulltime imprisonment meets all the objectives of sentencing for the purposes of Pt 1. 2. Mr Schaudin, who appears for the offender, contends the offender can be sentenced in a way short of his client serving imprisonment fulltime. At para 86 of Nalos, Adamson J indicated that the New South Wales Court of Criminal Appeal, "has consistently emphasised that a suspended sentence is a sentence in its own right and ought not be regarded as no punishment at all", and went on to extract a passage from Elliot and Harris No 2 (1976) 13 SASR 516, that the view that a suspended sentence is no punishment at all: "Reveals an entirely mistaken and wrongheaded approach to the question of suspended sentences so far as being no punishment at all. A suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future and is one which can be called automatically into effect of the slightest breach of the terms of the bond during its currency." 1. It appears to me that many of the purposes of personal deterrence have already been served in terms of the seriousness with which the offender has taken the proceedings and now understands his misconduct. The objective seriousness of the matter needs to be marked out by a period of imprisonment but the prospects of rehabilitation and the personal features that I have detailed in this particular sentencing exercise persuade me that it is appropriate to deal with the matter by way of a full suspension of the period of imprisonment. 2. You are convicted, you are sentenced to imprisonment for a period of two years. I direct that you are to be immediately released upon entering into a recognizance pursuant to s 21B of the Commonwealth Crimes Act, yourself, without security, in the sum of $500, for a period of three years commencing today, with conditions that you: 1. Be of good behaviour. 2. Appear for sentence if required to do so. 3. Accept supervision of community correction service including any recommended sexual offender counselling for such period as that service directs, and with that in mind you are to report to the officer‑in‑charge of Community Corrections at Port Macquarie within seven days of today. 1. It would be wrong to think that this is a bond. This is a period of two years imprisonment that hangs over your head, for a period of three years. If there are any breach at all you would be called up for sentence before me, and if that offending involved anything that remotely had the flavour of sexual offending you would be imprisoned for at least some period of that time. ********** Amendments 11 October 2019 - Paragraph [32] completed 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: 11 October 2019