Citation: R v Hoare [2019] NSWDC 739
Court: District Court of New South Wales
Date: 24 October 2019
Judge(s): Colefax SC DCJ
Background
The offender, a 57-year-old man of previously good character, used an adult dating website in October 2018 while experiencing significant personal stress, including a marriage breakdown, his parents' declining health, and the suicide of a close relative. On that platform, he began communicating with an online identity who identified as a 14-year-old girl. As acknowledged by his plea of guilty, he believed that person to be 14 years old throughout.
Over approximately 13 conversations spanning from 23 October 2018 to 13 January 2019, the communications migrated from the website to Skype and then to mobile phone. The content was sexually graphic, involved grooming the person he believed to be a child, and culminated in arrangements to meet in person for sexual activity. The person he was communicating with was, in fact, an undercover police officer.
When arrested and interviewed on 3 January 2019, the offender denied believing he was communicating with a 14-year-old, claiming instead he thought it was an adult role-playing. He persisted in that denial through to the sentencing assessment report interview in October 2019 and, apparently, in his communications with his treating psychologist.
Legal Issues
- What sentence was appropriate for one count of using a carriage service to procure a person under 16 years of age for sexual activity, contrary to s 474.26(1) of the Commonwealth Criminal Code?
- How should the offender's prolonged denial of belief as to the victim's age affect the weight given to his rehabilitation prospects, expert psychological evidence, and character references?
- What discount, if any, was appropriate for the utilitarian value of the guilty plea?
Decision
Colefax SC DCJ assessed the objective seriousness of the offence as falling below the mid-range but not at the lowest end. The offending involved sustained contact over roughly two and a half months, an explicit progression from online sexual encouragement to arranging a physical meeting, and communications the judge described as grossly inappropriate for any adult to direct at a person believed to be 14.
The judge gave reduced weight to the expert psychological report because the treating psychologist had not been told the truth: the offender had maintained throughout treatment that he believed the person was an adult, not a child. As a result, the judge found the therapeutic work was built on a false foundation and could not be meaningfully relied upon. Character references were discounted for similar reasons, as there was no indication the referees were aware of the true nature of the offending.
Rehabilitation prospects were assessed as "guarded" given the persistent dishonesty about a core element of the offence. The judge noted that full-time imprisonment was the only appropriate sentencing option for an offence of this kind, reflecting community expectations about the protection of children.
The starting point before the plea discount was a term of 2 years and 8 months. A 25% reduction was applied for the utilitarian value of the guilty plea, producing a sentence of 2 years' imprisonment with a non-parole period of 12 months.
Orders Made
- Convicted and sentenced to 2 years' imprisonment, commencing 24 October 2019.
- Eligible for release on 23 October 2020 on a recognizance of $500 (self-surety), to be of good behaviour for 12 months.
- Forfeiture order made in respect of the relevant mobile phone.
Key Takeaways
- A sentence of full-time imprisonment was held to be the only appropriate disposition for an offence of using a carriage service to procure a person believed to be under 16 for sexual activity, even where the "victim" was an undercover officer.
- Where an offender has persistently misrepresented to a treating psychologist a core factual element of the offence, the resulting expert report will attract reduced weight at sentence, as the therapeutic foundation is undermined.
- Character references are similarly discounted when the sentencing court cannot be satisfied that referees were given an accurate account of the offending.
- Under s 474.26(1) of the Commonwealth Criminal Code, the maximum penalty of 15 years' imprisonment signals the seriousness Parliament has attributed to child procurement offences conducted via digital communications.
- A 25% discount for the utilitarian value of a guilty plea was applied, though the discount did not affect the court's conclusion that full-time custody was required.
Legislation and Cases Referenced
Legislation:
- Commonwealth Criminal Code s 474.26(1) (using a carriage service to procure a person under 16 years for sexual activity; maximum penalty 15 years' imprisonment)
Cases cited: None cited in the judgment.