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District Court 27 February 2019

R v Scott Edward Roulston

[2019] NSWDC 28

Sexual offences

Citation: R v Scott Edward Roulston [2019] NSWDC 28
Court: District Court of New South Wales
Date: 27 February 2019
Judge(s): Mahony SC DCJ

Background

The offender pleaded guilty to using a carriage service to groom a person under 16 years of age, contrary to s 474.27(1) of the Criminal Code 1995 (Cth), which carries a maximum penalty of 12 years imprisonment. The conduct occurred over a period of just under three weeks, from 26 February to 15 March 2018, when the offender exchanged explicit messages via Facebook Messenger with what he believed was a 14-year-old male. The "victim" was in fact a police avatar operated by the Child Exploitation Internet Unit as part of a covert online operation.

The messages were highly explicit, described a range of proposed sexual acts, included the offender sending explicit images of himself (including a video), and discussed arrangements for a physical meeting. The offender ceased contact of his own accord before any meeting occurred. He was arrested on 18 June 2018 and had been in custody since that date. A separate charge of transmitting indecent material to a person under 16 years under s 474.27A was taken into account on sentencing.

The sentencing hearing proceeded at Nowra District Court on 13 December 2018. A psychologist's report assessed the offender as below average risk of sexual recidivism. The offender, aged 51 at the time of sentencing, had minimal prior criminal history and no prior sexual offences.

Legal Issues

  • What was the appropriate objective seriousness of the grooming offence under s 474.27(1), and what sentencing range applied?
  • Whether the absence of an actual child victim reduced the objective seriousness of the offending.
  • What weight should be given to the offender's remorse, good character, and psychological assessment of low recidivism risk?
  • Whether the offender's prospects of rehabilitation were good, given his continued denial of a sexual interest in children.
  • What sentence was appropriate, including the role of general and personal deterrence, and whether a non-custodial option was available under s 17A of the Crimes Act 1914 (Cth)?

Decision

Objective seriousness

The court placed the offending towards the lower range for offences under s 474.27(1), noting the relatively short duration of three weeks, the use of the offender's own Facebook account (indicating unsophisticated planning), and the absence of persistent or high-volume messaging (at [32]-[33]). The conduct did not amount to a "bombardment" of the target. However, the court was clear that this characterisation did not diminish the seriousness of the conduct, which remained serious criminal offending (at [33]).

Absence of a real victim

The court rejected the submission that the fictitious nature of the victim reduced the objective seriousness of the offending. Consistent with the Court of Criminal Appeal's reasoning in Rampling v R, the offence was no less reprehensible simply because the offender was communicating with a police avatar rather than a real child (at [35]). The transmission of indecent material by the offender independently increased objective seriousness and was taken into account under s 16BA (at [34]).

Remorse, character, and rehabilitation

The court accepted that the offender expressed remorse and had cooperated with police to some degree, but noted that his cooperation occurred in the face of an overwhelming case against him (at [40]). His expressions of remorse were undermined by his continuing inability to explain his conduct or acknowledge any sexual interest in children, despite the explicit content of his messages (at [39]). While the psychologist assessed the offender as below average risk for sexual recidivism, the court gave that assessment limited weight in the absence of the offender's acknowledgment of his sexual interest (at [45]). Good character was acknowledged but treated as carrying limited weight in the context of sexual offences involving children (at [44]).

Sentence

The court held that general deterrence was of fundamental importance given the public interest in protecting children from sexual exploitation, and that personal deterrence also warranted a custodial term (at [41]-[42]). No penalty other than full-time imprisonment was appropriate under s 17A (at [46]). The court imposed a total term of 2 years and 6 months, with a non-parole component of 15 months, followed by a Recognisance Release Order of 15 months to allow the offender's rehabilitative needs to be addressed under community supervision (at [47]).

Orders Made

  • Conviction entered for using a carriage service to groom a person under 16 years of age (s 474.27(1), Criminal Code Act 1995 (Cth)).
  • The additional charge of transmitting indecent material to a person under 16 (s 474.27A) was certified as taken into account under s 16BA of the Crimes Act 1914 (Cth).
  • Term of imprisonment of 15 months, from 21 June 2018 to 20 September 2019.
  • Recognisance Release Order for 15 months, from 21 September 2019 to 20 December 2020.

Key Takeaways

  • The District Court confirmed that grooming a fictitious police avatar is no less serious than grooming a real child: the absence of an actual victim does not reduce the objective seriousness of an offence under s 474.27(1) of the Criminal Code 1995 (Cth) (at [33], [35]).

  • Where an offender denies a sexual interest in children despite explicit evidence to the contrary in the charged conduct, a sentencing court may treat prospects of rehabilitation as guarded, and give limited weight to a psychologist's low recidivism risk assessment made on the basis of the offender's self-reporting (at [45]).

  • Expressions of remorse recorded in a psychologist's report, and not supported by sworn evidence, carry limited weight in sentencing, particularly where the offender cannot offer a plausible explanation for the criminal conduct (at [39]).

  • General deterrence is treated as a primary sentencing consideration in online child grooming matters, reflecting the strong public interest in protecting children and the difficulty of detecting this class of offence (at [42]).

  • Good character carries only a limited role in mitigation for sexual offences involving children, even where the offender has minimal prior criminal history and no prior sexual offending (at [44]).

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth)
- Crimes Act 1900
- Crimes Act 1914 (Cth)

Cases
- De Leeuw v R [2015] NSWCCA 183
- DPP v Garside [2016] VSCA 74
- Gifford v R [2016] NSWCCA 302
- Rampling v R [2010] NSWCCA 293
- R v Asplund [2010] NSWCCA 316
- R v Gajjar [2008] 192 A Crim R 78