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District Court 4 June 2009

R v BOZINOVSKI

[2009] NSWDC 200

Sexual offences
CRIMINAL LAW SENTENCE PREDATORY BEHAVIOUR

Citation: R v Bozinovski [2009] NSWDC 200
Court: District Court of New South Wales
Date: 4 June 2009
Judge(s): Berman SC DCJ

Background

The offender, a 30-year-old man, used text messaging and social media to make contact with a 13-year-old girl over a period of approximately 12 days in January 2008. He misrepresented his age throughout, presenting himself as either 17 or 22 years old. He sent 265 text messages to the complainant, including persistent sexual suggestions and references to having sexual intercourse with her.

The grooming culminated in the offender driving a considerable distance from Manly Vale to Gwandalan, where the complainant lived, in order to meet her. Unbeknown to the offender, the complainant's aunt had obtained possession of the girl's phone, posed as her niece, and changed the meeting location to outside her home. She confronted the offender when he arrived, then contacted police. He was arrested shortly afterwards.

The offender pleaded guilty on the day the matter was listed for trial. A victim impact statement from the complainant's aunt described significant and lasting changes in the young girl following these events.

  • What sentence was appropriate for an offence of using a carriage service to groom a person under the age of 16 years, contrary to s 474.27(1) of the Commonwealth Criminal Code?
  • What precise intention should the sentencing be based on, given the distinction between s 474.26 and s 474.27(1) of the Code?
  • How much weight should be given to the offender's prior good character and late guilty plea, in the context of an offence where general deterrence is paramount?
  • Was full-time custody the only appropriate sentencing outcome?

Decision

The court identified the relevant offence as using a carriage service with the intention of making it easier to procure the complainant to engage in sexual activity, rather than the more serious offence of intending to procure her for immediate sexual activity on the occasion of travel. The Crown did not seek sentencing on the basis that the offender intended to have sexual intercourse with the complainant on the day he drove to Gwandalan. Instead, the court sentenced on the basis that the travel demonstrated the extent to which the offender was prepared to lay the groundwork for possible future sexual activity.

The court characterised the offender's conduct as sustained, persistent, and predatory. Over just 12 days, he sent 265 messages, initiated all references to sexual activity, exploited the complainant's naivety, and deliberately misled her about his age. The court received a victim impact statement and noted the significant and foreseeable harm to the complainant. These factors weighed heavily in the court's assessment of objective seriousness.

Berman SC DCJ accepted the principle, drawn from R v Gadgar, that offences of this nature attract such a strong need for general deterrence that prior good character receives less weight than it ordinarily would. The offender's otherwise clean record, stable employment, and supportive family background were acknowledged but given reduced significance in that context. The late guilty plea attracted a discount of approximately 10 per cent on the sentence that would otherwise have been imposed.

The court accepted the offender's own concession, through senior counsel, that full-time custody was the only appropriate outcome. Comparative sentencing cases provided by the Crown also supported the imposition of a significant custodial term.

Orders Made

  • The offender sentenced to imprisonment for two years and six months, commencing 4 June 2009.
  • To be released after serving one and a half years on entering into a recognisance in the sum of $100.
  • Conditions of release: good behaviour for the remainder of the sentence; supervision by the Probation and Parole Service.

Key Takeaways

  • The District Court drew a careful distinction between two Commonwealth grooming offences: s 474.27(1), which requires an intention to make it easier to procure sexual activity, and s 474.26, which requires an intention to procure sexual activity with the sender. The factual basis for sentencing turned on that difference.
  • General deterrence carries such significant weight in online grooming cases that an offender's prior good character receives less weight than it would in other sentencing contexts, consistent with the Victorian Court of Appeal's approach in R v Gadgar.
  • A late guilty plea, entered on the day of trial, attracted only a modest discount of approximately 10 per cent, reflecting limited utilitarian value to the justice system compared with an early plea.
  • Sustained and deliberate exploitation of a young person's naivety and vulnerability, combined with deliberate misrepresentation of age, were treated as serious aggravating features going to the objective gravity of the offending.
  • Full-time custody was the uncontested and only appropriate sentencing outcome in circumstances involving predatory conduct directed at a real child who suffered genuine and lasting harm.

Legislation and Cases Referenced

Legislation:
- Commonwealth Criminal Code, s 474.27(1) (using a carriage service to groom a person under 16)
- Commonwealth Criminal Code, s 474.26 (using a carriage service to procure a person under 16)

Cases:
- R v Gadgar [2000] VSCA 268 (Victorian Court of Appeal, on the weight of general deterrence in grooming and similar offences)