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District Court 17 September 2018

R v Gilena

[2018] NSWDC 419

Sexual offences
SENTENCING MULTIPLE OFFENCES COMMONWEALTH OFFENCES SECTION 11 ADJOURNMENT MENTAL HEALTH TREATMENT SOUGHT SUPERVISED RECOGNISANCE ORDER.

Citation: R v Gilena [2018] NSWDC 419
Court: District Court of New South Wales
Date: 17 September 2018
Judge: M L Williams SC DCJ

Background

The offender, a man born in 1988, was charged with two offences under s 474.27(1) of the Criminal Code (Cth): using a carriage service to groom a person he believed to be under 16 years of age for sexual activity. The offending occurred over approximately one month between late March and late April 2013, when the offender initiated online contact with two identities created by Western Australian police, each posing as a 13-year-old girl. During those interactions, he engaged in sexually explicit conversation and exposed himself on webcam. Each offence carries a maximum penalty of 12 years imprisonment.

The offender was not apprehended until January 2016, when police executed a search warrant at his home. He had no prior criminal convictions and had not reoffended in the period between the conduct and sentencing. He entered an early guilty plea in the Local Court.

The matter first came before the sentencing judge in November 2017. Sentencing was adjourned under s 11 of the Crimes Act 1914 (Cth) to allow the offender to engage with mental health treatment, following the emergence of evidence that he had undiagnosed and untreated mental health issues, including a diagnosis that evolved from autism spectrum disorder to features consistent with schizophrenia.

  • What was the appropriate sentence for two Commonwealth grooming offences, given the objective seriousness of the conduct and the personal circumstances of the offender?
  • What weight should be given to the offender's mental health condition, specifically a psychiatric diagnosis that contributed materially to the offending?
  • Was a fully suspended sentence an appropriate outcome, having regard to general and specific deterrence, the offender's prior good character, and his rehabilitation progress?
  • How should the early guilty plea, unexplained prosecution delay, and low risk of reoffending affect the sentence?

Decision

His Honour accepted that the offending was objectively serious. It involved two separate episodes with identities the offender believed to be 13-year-old girls, used multiple modes of communication, and included explicit sexual conduct over webcam. The statutory irrelevance of the victims being undercover police operatives was noted, consistent with s 474.28(8) of the Criminal Code (Cth). General deterrence was identified as a significant factor given the public interest in protecting children and the inherent difficulties of detecting this type of offending.

The offender's mental health was a central mitigating consideration. Dr Furst, the forensic psychiatrist, opined that the offender's schizophrenic illness and associated social isolation materially contributed to the offending, and that he was socially inept and had poor judgment of social norms. His Honour accepted the psychiatric evidence, notwithstanding the Crown's submissions urging caution, noting that it was unchallenged and supported by the offender's own evidence. The mental health condition was also found to make any custodial environment more onerous for the offender and to reduce his utility as a vehicle for general deterrence.

His Honour was satisfied that the offender's response to mental health treatment following the November 2017 adjournment was "very good," and that his ongoing rehabilitation demonstrated continuing good prospects. The combination of unexplained prosecutorial delay (nearly three years between the conduct and arrest), the absence of any reoffending over more than five years, a low assessed risk of reoffending, an early guilty plea, and prior good character all supported a non-custodial outcome. His Honour was persuaded that a fully suspended sentence, with supervised community corrections oversight, would adequately punish the offender while providing the community with the best assurance of rehabilitation. Prior good character was given reduced weight, consistent with the approach in R v Gent, given the nature of the offending.

The sentence of 18 months imprisonment was imposed concurrently in respect of each offence and immediately fully suspended, on condition that the offender enter into a recognisance release order for three years under community corrections supervision.

Orders Made

  • The offender was convicted of each offence.
  • In respect of each offence, a sentence of 18 months imprisonment was imposed, commencing on the date of judgment.
  • The offender was released forthwith on condition that he enter into a recognisance in the sum of $100, to be of good behaviour for three years.
  • The offender is to be supervised by Community Corrective Services for such period as that service thinks fit.
  • The offender must not travel interstate or overseas without the written permission of Community Corrective Services.

Key Takeaways

  • A fully suspended sentence remained available for Commonwealth grooming offences in 2018, where the combination of mental illness materially contributing to the offending, low reoffending risk, rehabilitation engagement, unexplained prosecution delay, and an early plea collectively supported that outcome.
  • Under s 474.28(8) of the Criminal Code (Cth), the fact that an alleged "victim" is an undercover police operative does not reduce the seriousness of a grooming offence; the court treats the offender as if the believed identity were a real child.
  • Prior good character attracts reduced weight in sentencing for child sexual exploitation offences, consistent with the NSW Court of Criminal Appeal's approach in R v Gent [2005] NSWCCA 370.
  • Where psychiatric evidence is unchallenged, the District Court treated it as accepted, notwithstanding Crown submissions urging caution about the reliability of the diagnosis.
  • An adjournment under s 11 of the Crimes Act 1914 (Cth) to facilitate mental health treatment can be relevant to sentence; the offender's demonstrated compliance and progress during that period were treated as indicators of good rehabilitation prospects.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 474.27(1), 474.28(8)
- Crimes Act 1914 (Cth), Part 1B; s 11

Cases
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Asplund; Asplund v R [2010] NSWCCA 316
- R v Costello [2011] QCA 39
- R v Gent [2005] NSWCCA 370
- R v Nahlous [2013] NSWCCA 90
- R v Rampley [2010] NSWCCA 293
- Xiao v R [2018] NSWCCA 4