Citation: R v Glenn Kelvin SMITH [2007] NSWDC 315
Court: District Court of New South Wales
Date: 1 November 2007
Judge(s): Berman SC DCJ
Background
The offender, a 57-year-old disability pensioner living in New South Wales, made contact with a 16-year-old girl in the United States through an online Christian chat room. A relationship developed over several months from October 2006 to February 2007, conducted through private messages, email, SMS, letters, and telephone calls.
The relationship became sexual in nature. The offender began sending explicit photographs of himself to the complainant and then requested she send similar photographs of herself. She sent approximately 300 digital photographs via the internet. The offender made specific sexual requests, directing her to photograph herself engaging in particular acts for his gratification.
The offender pleaded guilty to using a child of or above the age of 14 for pornographic purposes, an offence under s 91G(2)(a) of the Crimes Act 1900. The complainant was 16 years old at the time; a "child" under the relevant provision means a person under 18.
Legal Issues
- What sentence was appropriate for the offence, taking into account the objective seriousness of the conduct and the personal circumstances of the offender?
- What weight should be given to the offender's early guilty plea in circumstances where the Crown case was overwhelming and genuine remorse was questionable?
- Was a suspended sentence appropriate, or did the circumstances require actual custody?
- How should the sentencing court treat the offender's rehabilitation prospects given his attitude towards the victim as revealed in the pre-sentence report?
Decision
The court found the offence was serious, involving deliberate exploitation of a naive and vulnerable 16-year-old girl for the offender's sexual gratification. The age disparity was significant (57 versus 16), and the offender had encouraged the complainant's fantasy about marrying him and having children, using that dynamic to sustain her compliance.
The pre-sentence report was a central and damaging factor. In contrast to the agreed statement of facts, the offender told the Probation and Parole Service that the complainant had initiated the sexual contact, that he had not received sexual pleasure from the interactions, and that he saw himself as a victim. The court rejected these claims outright and found they demonstrated a complete failure to appreciate the seriousness of his conduct.
On remorse, the court was not satisfied that the offender recognised the wrongfulness of his behaviour in any meaningful sense. His regret appeared to be directed at being caught, being punished, and losing the relationship, rather than at the harm caused to the complainant. Accordingly, while he received a 25 per cent discount for his early guilty plea, his prospects of rehabilitation were assessed as poor.
Two factors distinguished this case from more serious offending of this kind: the offender had been truthful with the complainant about his age, and there was no evidence from his computer that he had targeted other children online. Nonetheless, the court found a suspended sentence was insufficient to reflect the objective gravity of the conduct or to achieve the personal deterrence required. A custodial sentence was imposed.
Orders Made
- The offender sentenced to imprisonment with a non-parole period of six months, commencing 1 November 2007 and expiring 30 April 2008.
- Head sentence of one year and three months.
- The offender to be released to parole on 30 April 2008.
Key Takeaways
- A conviction under s 91G(2)(a) of the Crimes Act 1900 for using a child for pornographic purposes applies where the child is aged 14 to 17 inclusive, and the provision operates regardless of whether the offending occurred domestically or via international internet contact.
- Where a defendant's statements to the Probation and Parole Service contradict the agreed statement of facts and involve victim-blaming, the sentencing court may treat those statements as evidence of poor rehabilitation prospects and limited genuine remorse.
- An early guilty plea attracts a sentencing discount even where the Crown case is overwhelming, but that discount does not automatically translate into a finding of remorse; the court must assess remorse separately on the evidence.
- Suspended sentences are not automatically appropriate merely because an offender is a first offender in poor health. The District Court held that actual custody was required where the objective gravity of the conduct and the need for personal deterrence outweighed those mitigating factors.
- The court noted a legislative curiosity: while sexual intercourse between two 16-year-olds is lawful, photographing that activity is a criminal offence, illustrating the particular vulnerability of minors to exploitation through digital technology.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 91G(2)(a) (using a child of or above the age of 14 for pornographic purposes)
Cases cited: No cases were cited in the judgment.