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District Court 4 December 2020

R v Kolevski

[2020] NSWDC 890

Sexual offencesDomestic & family violence
CRIME EARLY PLEA USE OF ASSUMED ONLINE IDENTITY ACCUMULATION ON STATE SENTENCES

Citation: R v Kolevski [2020] NSWDC 890
Court: District Court of New South Wales
Date: 4 December 2020
Judge: Haesler SC DCJ

Background

The offender appeared for sentence on two Commonwealth offences committed in early 2020. The first involved using a carriage service to communicate with a person he believed to be a 14-year-old girl, who was in fact an assumed online identity (AOI) operated by police, with the intention of making it easier to procure that person for sexual activity. The second involved using a carriage service to send indecent communications to a real 13-year-old girl whom the offender knew personally through her mother.

The offender was arrested on 14 February 2020. Upon arrest, he made full admissions to police regarding the AOI communications and, importantly, voluntarily disclosed the second set of communications involving the real child. Those disclosures allowed police to contact the child and confirm the facts placed before the court.

The sentencing hearing also dealt with a severity appeal concerning two related State offences: assaulting and intimidating his adult daughter, who has an intellectual disability. The District Court varied the commencement date of those sentences to make them fully concurrent, producing an effective State sentence of 18 months imprisonment with a non-parole period of 13 months and 15 days, dating from 13 February 2020.

  • What sentences were appropriate for two Commonwealth offences involving online communications targeting children under 16?
  • How should the Commonwealth sentences be structured and accumulated in relation to the pre-existing State sentences?
  • What weight should be given to the offender's early admissions, early guilty pleas, psychological profile, and drug use history?
  • Did the fact that the first offence involved an assumed online identity (rather than a real child) reduce the offender's culpability?

Decision

Seriousness of the offending. Haesler SC DCJ treated both offences as serious, noting the graphic and persistent nature of the communications and the significant age disparity between the offender (aged 43) and the intended recipients. In relation to the first offence, the court confirmed the established principle that an offence involving an AOI is no less reprehensible than one targeting a real child, citing Collier and Rampley. The distinction between the two categories is relevant only when assessing victim harm: the AOI offence causes generalised harm to the community, while the second offence caused direct harm to a real 13-year-old who was disturbed by the material she received.

Drug use and psychological factors. The court accepted that the offender had longstanding methamphetamine and cannabis use and untreated depression, and that these conditions were present at the time of offending. However, it declined to accept the psychologist's opinion that the offender's judgment was significantly impaired. The offender knew what he was doing, persisted in the conduct, and continued sending messages to the real child even after she blocked him. Drug use reduced his inhibitions but did not mitigate his criminal liability.

Plea discount and totality. The court applied a 25% reduction to reflect the utilitarian value of the early guilty pleas. It took care to structure the accumulation of sentences in a way that preserved that discount. Applying totality principles, the Commonwealth sentences were ordered to commence after the offender had served six months of his State sentence, rather than at the expiry of the State non-parole period.

Release arrangements. The court acknowledged some guarded confidence, based on the offender's acceptance of responsibility and his previously stable work and family history, that he could be restored to the community with appropriate support. It structured the sentence to include a recognizance release order requiring participation in sex offender programs, a mental health care plan, and anger management, with supervision by Community Corrections for the balance of the sentence.

Orders Made

  • Indecent communications to person under 16 (s 474.27A(1)): 2 years imprisonment, commencing 13 August 2020, expiring 13 August 2022.
  • Grooming under 16 for sex (s 474.27(1)): 2 years 3 months imprisonment, commencing 13 February 2021, expiring 12 May 2023.
  • Total Commonwealth sentence: 2 years 9 months imprisonment.
  • Single recognizance release order under s 20(1)(b) Crimes Act 1914: release on 12 February 2022 (after serving 1 year 6 months of the combined Commonwealth sentence), upon entering a recognizance of $100.
  • Conditions of the recognizance include: good behaviour for 1 year 6 months; reporting to and obeying the directions of NSW Community Corrections (Probation and Parole); compliance with sex offender programs, a mental health care plan, and anger management programs.

Key Takeaways

  • An offence involving an assumed online identity carries the same level of reprehensibility as one targeting a real child. The only difference relevant to sentencing is that victim harm is generalised (harm to the community) rather than direct, as confirmed by reference to Collier and Rampley.

  • Voluntary disclosure of additional offending to police, while ultimately likely to be discovered through phone examination, was still treated as a relevant mitigating factor. It demonstrated recognition of wrongdoing and facilitated contact with the victim.

  • Substance use and untreated mental health conditions may provide context for offending but do not, in this court's analysis, significantly mitigate culpability where the offender understood his conduct and persisted in it.

  • The District Court applied totality principles to commence Commonwealth sentences partway through an existing State non-parole period, rather than after its expiry, to avoid a crushing cumulative sentence while still reflecting the separate and serious nature of each offence.

  • A 25% utilitarian discount applied to the sentences for early guilty pleas, and the court took active steps in structuring the accumulation to ensure that discount was not eroded by the mechanics of concurrent and cumulative terms.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 474.27(1) (grooming), 474.27A(1) (indecent communications)
- Crimes Act 1914 (Cth), s 20(1)(b) (recognizance release order)

Cases
- Markarian v The Queen (2005) 228 CLR 357
- R v Asplund; Asplund v R [2010] NSWCCA 316
- Rampley v R [2010] NSWCCA 293
- The State of Western Australia v Collier [2007] WASCA 250; 178 A Crim R 310