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District Court 9 May 2013

R v Pierre MOSS

[2013] NSWDC 207

Sexual offences
CRIMINAL LAW PARTICULAR OFFENCE RELEVANT FACTORS GRAVITY OF OFFENCE RESPONSE TO CHARGE REMORSE

Citation: R v Pierre MOSS [2013] NSWDC 207
Court: District Court of New South Wales
Date: 9 May 2013
Judge: Cogswell SC DCJ

Background

The offender was a man in his early thirties who coached an under-14 girls' soccer team. He began exchanging text messages directly with a 12-year-old team member, ostensibly for team communications, and over a period from 11 to 29 August 2011 sent 206 messages of a progressively inappropriate and offensive nature. The messages included references to wishing the child were older, references to kissing her, comments of a sexual nature about his marriage, and suggestions about spending time alone with her. Many messages were sent late at night, and the child told police she had become so overwhelmed she did not want to go near her phone.

The child eventually approached her school counsellor, who notified school authorities, the Department of Community Services, and ultimately the police. The offender was arrested and, when interviewed, acknowledged he had crossed a line and had made a mistake. He pleaded guilty to one charge of using a carriage service in a manner that reasonable persons would regard as menacing, harassing, or offensive, contrary to the Criminal Code Act 1995 (Cth), which carries a maximum penalty of three years imprisonment.

Sentencing required the court to weigh the gravity of the offending, the offender's personal and psychiatric circumstances, and the impact on the child victim. A separate contested question arose as to whether the offender was required to be placed on the Child Protection Offenders Register under New South Wales legislation.

  • What sentence was appropriate for the carriage service offence, having regard to the objective seriousness of the conduct, the breach of trust, and the offender's mental health conditions?
  • What weight should be given to general deterrence given the offender's diagnosed bipolar disorder?
  • Whether a guilty plea discount was warranted, and at what level.
  • Whether the offending constituted an "act of indecency" in respect of a child under the Child Protection (Offenders Registration) Act 2000 (NSW), making it a Class 2 registrable offence requiring the offender to be placed on the register.

Decision

The court found the offending was objectively serious. The offender held a position of trust and authority over young children, and his conduct was a significant abuse of that position. The judge noted that the absence of prior criminal history ordinarily weighs in an offender's favour, but here it carried less weight because a clean record was precisely what allowed the offender to occupy the trusted coaching role he then abused.

Psychiatric and psychological evidence established the offender suffered from bipolar disorder, anxiety, depression, and possible ADHD symptoms, and that his mental state at the time of offending was relevant context. The court found a meaningful connection between the untreated conditions and the offending behaviour, particularly the impulsivity associated with the manic phase of bipolar disorder. This reduced the weight attached to general deterrence, though not significantly, because the difficulty in detecting this type of offence made deterrence a significant sentencing purpose in any event. The court also noted the offender had suffered limited extra-curial punishment through consequences flowing from the charge.

A guilty plea discount of 20 per cent was applied. The court accepted the offender's remorse and contrition as genuine, and assessed his prospects of rehabilitation as good, supported by his engagement with psychiatric and psychological treatment. Taking all these matters together, the court determined it was appropriate to impose a 12-month term of imprisonment but to suspend the sentence, on condition that the offender enter into a good behaviour bond of $500 for the 12-month period.

On the registration question, the court determined that the offending did constitute an "act of indecency" in respect of a child within the meaning of the Child Protection (Offenders Registration) Act 2000 (NSW), making it a Class 2 registrable offence. The offender was accordingly required to be placed on the Child Protection Offenders Register.

Orders Made

  • The offender was convicted of using a carriage service to menace, harass, or cause offence contrary to the Criminal Code Act 1995 (Cth).
  • A sentence of 12 months imprisonment was imposed and suspended under s 17A of the Crimes Act 1914 (Cth).
  • The offender was required to enter a recognisance of $500 to be of good behaviour for 12 months.
  • The offender was placed on the Child Protection Offenders Register as a Class 2 registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW).

Key Takeaways

  • A coach's position of trust over young athletes is a significant aggravating factor in sentencing for contact offences, and the absence of prior criminal history attracts reduced mitigating weight where that clean record was itself the gateway to the trusted role.
  • Diagnosed mental health conditions, including bipolar disorder and associated impulsivity, can establish a sufficient connection to offending behaviour to reduce the weight given to general deterrence, though not eliminate it where the offence is inherently difficult to detect.
  • Under the Child Protection (Offenders Registration) Act 2000 (NSW), the court confirmed that the exchange of offensive and sexualised text messages between an adult and a 12-year-old child can constitute an "act of indecency" sufficient to enliven registration obligations, even where the conduct was limited to electronic communications with no physical contact.
  • A suspended sentence remained available as an appropriate disposition even for offences involving a significant breach of trust, where the offender's rehabilitation prospects were strong and mental health conditions meaningfully contributed to the offending.
  • Victim impact evidence illustrated the lasting psychological harm caused by persistent inappropriate messaging, including anxiety, social withdrawal, and loss of trust in adults, reinforcing the court's view of the offence's seriousness.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 473.4, 474.17, 474.27A
- Crimes Act 1914 (Cth), s 17A
- Child Protection (Offenders Registration) Act 2000 (NSW), s 3A(1)
- Child Protection (Offenders Registration) Regulation (NSW), reg 18

Cases
- Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; [2010] NSWCA 241
- Purves v Inglis (1915) 34 NZLR 1051
- R v Manson, R v Stamenkovic (Court of Criminal Appeal, 17 February 1993, unreported)
- TMTW v R [2008] NSWCCA 50