Citation: R v Hastings Fredrickson (No 1) [2015] NSWDC 114
Court: District Court of New South Wales
Date: 9 February 2015
Judge: Judge P Lakatos SC
Background
The offender, a 41-year-old civilian defence contractor and Army Reserve Warrant Officer Class 2, pleaded guilty to three counts of using a carriage service in a menacing, harassing or offensive way, contrary to s 474.17(1) of the Criminal Code (Commonwealth). Each offence carried a maximum penalty of three years imprisonment.
The offences arose from the offender's covert filming of a consensual sexual encounter with a woman he had met at an airport lounge. Without her knowledge or consent, he distributed screenshots from that footage via email to a private social group of Australian Defence Force members known as the "Jedi Council." Two of those emails also attached images of a second woman, and one email included photographs of a senior female ADF officer obtained from a public recruiting video, accompanied by explicit commentary about her.
The offender's misconduct came to light in September 2010, leading to his immediate dismissal and revocation of his security clearances. He was not arrested until November 2013 and spent no time in custody prior to sentencing.
Legal Issues
- The appropriate sentence for three offences of using a carriage service in an offensive or harassing manner under s 474.17(1) of the Criminal Code (Commonwealth)
- The weight to be given to an early guilty plea, the offender's personal circumstances, psychological evidence, and victim impact statements
- Whether the sentence should take the form of full-time custody or an intensive correction order
- The relevance of extra-curial punishment (job loss, public exposure) to the overall sentencing exercise
Decision
Judge Lakatos found the offending to be serious. The covert filming and distribution of intimate images constituted a significant breach of trust, demeaned the victims, and had caused them ongoing and substantial psychological harm. Both victims read impact statements to the court describing anxiety, sleeplessness, loss of trust, self-doubt, and lasting distress. The judge accepted those accounts as genuine reflections of the harm caused.
General deterrence was treated as a matter of high importance. The court noted that offences of this kind, involving exploitation through technology in a military context, required a sentence that signalled the real possibility of imprisonment to others who might contemplate similar conduct. Specific deterrence was considered less pressing, given the significant consequences the offender had already suffered and the court's assessment that re-offending was reasonably unlikely.
The court accepted the evidence of psychologist Dr Kenneth Byrne, who diagnosed the offender with a personality disorder linked to a severely disrupted childhood, but expressed doubt about the extent to which that disorder diminished the offender's responsibility for the conduct. The court gave credit for the early guilty plea and the absence of any prior criminal record. It also took into account the extra-curial punishment the offender had experienced, including loss of employment and significant public attention, as matters additional to the formal sentence.
Weighing all factors, Judge Lakatos concluded that a custodial sentence was warranted but that full-time imprisonment was not necessary. The court imposed 15 months imprisonment on each count and directed that the offender be assessed for suitability for an intensive correction order, with the intention of making such an order if he was found suitable.
Orders Made
- The offender convicted on each of the three counts
- Sentenced to 15 months imprisonment in respect of each offence
- Directed to be assessed for suitability for an intensive correction order, with the court indicating its intention to impose such an order if the offender was found suitable
Key Takeaways
- The District Court treated the non-consensual covert filming and digital distribution of intimate images as a serious breach of trust warranting a custodial sentence, even in the absence of prior criminal history.
- General deterrence was accorded significant weight in sentencing for carriage service offences involving the exploitation of intimate images, particularly where a breach of personal and professional trust was involved.
- A diagnosed personality disorder did not substantially reduce the offender's moral culpability where the court was not satisfied it materially deprived him of the will to commit the offences.
- Extra-curial consequences, including loss of employment and public exposure, were recognised as relevant sentencing factors to be weighed alongside formal punishment, though they did not displace the need for a custodial term.
- Under s 474.17(1) of the Criminal Code (Commonwealth), using a carriage service to distribute non-consensual intimate images to a group of recipients was found to satisfy the threshold of conduct that a reasonable person would regard as offensive or harassing.
Legislation and Cases Referenced
Legislation
- Criminal Code (Commonwealth), s 474.17(1)
- Crimes Act (Commonwealth)
Cases
- R v Previtera (1997) 94 A Crim R 76
- Dasreef Pty Ltd v Hawchar [2011] HCA 21
- Monis v R (2013) 87 ALJR 340; [2013] HCA 4
- Director of Public Prosecutions v Collins [2006] 1 WLR 223; 4 All ER 602
- R v Deblaquiere and McDonald [2013]