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District Court 17 April 2018

R v Barbros Ocek

[2018] NSWDC 349

Sexual offences
CRIMINAL LAW 25% DISCOUNT NSW OFFENCES COMMONWEALTH OFFENCES USE OF FAKE PROFILES SIGNIFICANT PLANNING

Citation: R v Barbros Ocek [2018] NSWDC 349
Court: District Court of New South Wales
Date: 17 April 2018
Judge(s): Tupman DCJ

Background

The offender pleaded guilty in the Local Court to a large volume of child sexual offences and was committed to the District Court for sentence. The matters were complex to consolidate: the final indictment comprised 38 substantive counts, plus a further 10 offences dealt with across four Form 1 documents and one related summary offence. Eleven complainants were involved, nine of them under 16, ranging in age from 11 to 19.

The offending spanned two distinct periods: January to May 2012, and January to July 2014. Between those periods, the offender served a custodial sentence for three earlier offences of a similar nature, committed between November 2011 and May 2012. He was released to parole in December 2013 and placed on the child protection offenders register. Despite signing an acknowledgement of his obligations as a registerable person in April 2014, he concealed his phone numbers, email accounts, and social media usernames from authorities.

Police discovered the fresh offending after seizing the offender's phones, uncovering child abuse material and sexual communications, and after one complainant contacted Queensland police following unwanted contact from the offender after his release. The investigation revealed that some of the most serious offending had in fact predated the earlier prison sentence but had not yet been detected.

  • What total sentence, structured across 38 substantive counts and 10 Form 1 offences, appropriately reflects the objective seriousness of the conduct, the principles of totality and accumulation, and the need for community protection?
  • What discount applied for the guilty pleas, given they were entered in the Local Court?
  • How should a charge of persistent child sexual abuse under s 66EA(1) of the Crimes Act 1900 (NSW), involving 32 separate sexual acts with a 14-year-old on seven occasions, be treated within an overall sentencing structure?
  • What weight should be given to the offender's diagnosed paedophilia and paraphilia, assessed high risk of recidivism, prior similar offending, and offending while on parole and while a registered sex offender?
  • Whether the Crimes (High Risk Offenders) Act 2006 (NSW) applied and whether a statutory warning was required.

Decision

Tupman DCJ described this as a particularly complex and difficult sentencing exercise. The offences spanned both State and Commonwealth law, involved significant planning, the use of fake online identities, grooming with alcohol, cannabis, and pornography, and the production, possession, and dissemination of child abuse material. Some offending was committed while the offender was on parole; further offending was committed while he was a registerable sex offender with known obligations he deliberately concealed.

The court applied a 25 per cent discount across the sentence to reflect the guilty pleas, which had been entered at the Local Court. The offender was assessed as high risk of reoffending, with a diagnosis of paedophilia and paraphilia. The court found his prospects of rehabilitation were poor and characterised him as manipulative and dangerous.

Count 3, the persistent child sexual abuse charge, was treated as the primary sentence. It involved seven occasions of offending encompassing 32 separate sexual acts with a 14-year-old complainant. The court imposed a sentence of 15 years on that count, with a non-parole period of 10 years. Other counts, including the 20 Commonwealth carriage service offences, received individual indicative sentences structured to achieve an overall sentence that reflected totality while not underweighting the aggregate criminality.

The court also issued the statutory warning required under the Crimes (High Risk Offenders) Act 2006 (NSW), noting its application to the serious sex offences charged, in particular the persistent child sexual abuse offence under s 66EA.

Orders Made

  • Count 3 (persistent child sexual abuse, s 66EA(1)): 15 years, commencing 24 July 2019, expiring 23 July 2034; non-parole period of 10 years commencing 24 July 2017, expiring 23 July 2029; parole period of 5 years commencing 24 July 2029, expiring 23 July 2034.
  • Count 1 (failure to comply with reporting obligations): 6 months, commencing 24 July 2014, expiring 23 January 2015.
  • Count 2 (possession/production of child abuse material): fixed term of 18 months, commencing 24 July 2014, expiring 23 January 2016.
  • Count 4 (possession/production of child abuse material): fixed term of 18 months, commencing 24 July 2019, expiring 23 January 2021.
  • Count 5: fixed term of 2 years, commencing 24 July 2019, expiring 23 July 2021.
  • Count 6 (intimidation): fixed term of 6 months, commencing 24 July 2019, expiring 23 January 2020.
  • Count 20 (exposing child under 16 to indecent material): fixed term of 2 years, commencing 24 July 2014, expiring 23 July 2016.
  • Count 21 (demand with menaces to obtain indecent images): fixed term of 12 months, commencing 24 July 2014, expiring 23 July 2015.
  • Count 24 (procuring child under 14 for production of child abuse material): fixed term of 12 months, commencing 24 July 2014, expiring 23 July 2015.
  • Count 38 (intimidation): fixed term of 12 months, commencing 24 July 2014, expiring 23 July 2015.
  • Indicative sentences for counts 10 to 17 ranged from 2 to 4 years.
  • Related summary offence (s 17 Child Protection (Offenders Registration) Act): convicted, no further penalty pursuant to s 10A Crimes (Sentencing Procedure) Act 1999.
  • Suppression orders made under the Courts (Suppression and Non-Publication) Orders Act 2010 protecting the identity of all complainants and victims.
  • Statutory warning issued under the Crimes (High Risk Offenders) Act 2006.

Key Takeaways

  • The District Court imposed a headline sentence of 15 years with a 10-year non-parole period for a single count of persistent child sexual abuse under s 66EA(1) of the Crimes Act 1900 (NSW), reflecting 32 separate sexual acts across seven occasions with a 14-year-old complainant.
  • A 25 per cent discount for guilty pleas applied where pleas were entered at the Local Court stage, consistent with the approach in R v Thomson & Houlton (2000) 49 NSWLR 383.
  • Offending committed while on parole and while subject to sex offender registration obligations was treated as a significant aggravating factor in the overall sentencing assessment.
  • Where an offender is assessed as high risk of reoffending and has a diagnosis of paedophilia with prior similar convictions, the sentencing court will weight community protection heavily, with rehabilitation given correspondingly less weight.
  • Under the Crimes (High Risk Offenders) Act 2006 (NSW), a sentencing court is required to issue a formal warning to an offender where the Act may apply to the serious sex offences for which sentence is being imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 578A, 91H(2), 91G(1)(b), 66EA(1), 66EB(2A), 66EB(3), 66C(3), 61M(2), 249K(1)
- Criminal Code 1995 (Cth), s 474
- Courts (Suppression and Non-Publication) Orders Act 2010 (NSW), ss 7, 8(1)(c), 8(1)(d)
- Child Protection (Offenders Registration) Act 2009 (NSW), ss 12C, 17
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1