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District Court 21 November 2014

R v Warren Drake

[2014] NSWDC 252

Sexual offences
CRIMINAL LAW SENTENCE SEXUAL INTERCOURSE WITH CHILD GROOMING POSSESS CHILD ABUSE MATERIAL BREACH OF BONDS

Citation: R v Warren Drake [2014] NSWDC 252
Court: District Court of New South Wales
Date: 21 November 2014
Judge: Knox SC DCJ

Background

The offender appeared for sentencing on eight counts in an indictment, together with additional offences on three Form 1 documents to be taken into account on three of those principal charges. He was also sentenced for breach of a bond imposed under s 12 of the Crimes (Sentencing Procedure) Act following an earlier conviction.

The earlier conviction arose from a 2011 jury trial in which the offender was found guilty of sexual intercourse with a child (TJ, then aged 13). Judge Haesler SC had sentenced the offender to a s 12 bond, describing him as having excellent prospects and being unlikely to reoffend. The offender was also placed on the Child Protection Register following that conviction.

The optimism expressed at the 2011 sentencing proved short-lived. While participating in a court-mandated sex offender treatment program, the offender engaged in a fresh course of offending between approximately March and July 2012, targeting multiple young girls aged 14 through Facebook and SMS communications. The offending included sexual intercourse, grooming, possession of child abuse material, and breaches of Child Protection Register obligations.

  • The appropriate sentence for eight counts of sexual and grooming offences against multiple complainants, having regard to the offender's recent prior conviction for substantially similar conduct
  • The weight to be given to the prior s 12 bond and the fact that the new offending occurred while the offender was participating in a mandated sex offender treatment program
  • The application of totality principles to a series of offences across multiple complainants
  • The prospects of rehabilitation in the context of a pattern of repeated, escalating offending

Decision

Knox SC DCJ traced a clear pattern of offending: the offender had used Facebook and SMS to groom multiple 14-year-old girls, exposing them to indecent material and, in one case, committing an act of digital penetration. Images of one complainant were found stored on his iPhone in a folder labelled "Sluts," classified as child abuse material under the CTS Scale. In at least one instance the offending occurred while the offender was travelling to a probation-and-parole mandated child sex offender program near Central Station.

The timing and nature of the fresh offending weighed heavily on sentence. The court noted that the offending against the primary complainant NP occurred within months of the 2011 sentencing, demonstrating a course of consistent criminal conduct by essentially the same grooming methods. The prior finding that the offender posed only a low-to-moderate risk had been thoroughly displaced by events.

The court applied the principles in Veen v The Queen (No. 2) and Muldrock v The Queen, along with totality principles drawn from R v Blackman and Walters, in constructing the overall sentence. Notwithstanding the serious circumstances, the court expressed some ongoing concern for the offender as a young man and described the sentence ultimately imposed as lenient, with a view to facilitating rehabilitation through structured post-release conditions.

The breach of the s 12 bond was addressed concurrently with the substantive offences, with the court declining to take action on a separate 18-month Commonwealth good behaviour bond.

Orders Made

  • Count 1 (sexual intercourse with NP): non-parole period and balance of term (specific dates not reproduced in the available text)
  • Count 2 (grooming of NP): fixed term imposed
  • Count 3 (possession of child abuse material): fixed term imposed
  • Count 4 (grooming of TS): fixed term imposed
  • Count 5 (grooming of SM): fixed term imposed
  • Count 6 (grooming of BT/LT): fixed term of 3 months, commencing 9 July 2014, expiring 8 October 2014
  • Count 7 (failure to notify police of residential address, with Form 1A): fixed term of 2 months, commencing 9 October 2014, expiring 8 December 2014
  • Count 8 (unsupervised contact with NP, with Form 1B): fixed term of 2 months, commencing 9 February 2014, expiring 8 April 2014
  • Count 9 (writing to EB requesting contact with son, with Form 1C): fixed term of 1 month, commencing 9 October 2014, expiring 8 November 2014
  • Release from custody operative from 8 December 2014
  • Release to parole subject to conditions including: compliance with the CUBIT programme or any sex offender program; notification of address to Community Corrections; compliance with restrictions on electronic and telephonic communications including Facebook; and attendance within 14 days of release at a specified counselling or forensic psychology service

Key Takeaways

  • A prior finding of low-to-moderate reoffending risk carries diminished weight at a subsequent sentencing where the offender has reoffended in substantially the same manner and within a very short time of the earlier sentence being imposed.

  • Offending that occurs while an offender is actively participating in a court-mandated sex offender treatment program is a significant aggravating feature, as it strikes directly at the rehabilitative premise underlying the original sentence.

  • Under the totality principle, where multiple counts involve different complainants targeted by similar grooming methods, the sentencing court must structure cumulative and concurrent terms so that the overall sentence is proportionate to the totality of the criminality without becoming crushing.

  • The District Court treated the offender's youth as a mitigating consideration capable of justifying relative leniency, even where prospects of rehabilitation had previously been assessed too optimistically.

  • Possession of child abuse material stored on a personal device, combined with active grooming conduct across multiple complainants, will be treated as a serious and distinct strand of offending warranting separate sentencing consideration alongside the primary sexual offences.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), ss 66C(1), 66E(b)(3)
  • Crimes (Sentencing Procedure) Act 1999 (NSW), s 12
  • Child Protection (Offenders Registration) Act 2000 (NSW)

Cases