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District Court 12 February 2021

R v Kenny

[2021] NSWDC 17

Sexual offencesFirearms & weaponsPublic order & justice offences
SENTENCE GROOMING P OSSESS CHILD ABUSE MATERIAL C YBERSEX RELATIONSHIP N ORMALISING EXTREME SEXUAL DEPRAVITY REGISTERED CHILD AS SLAVE

Citation: R v Kenny [2021] NSWDC 17
Court: District Court of New South Wales
Date: 12 February 2021
Judge: Weinstein DCJ

Background

The offender, a man born in 1970, had prior convictions from 2009 for sexual intercourse with a person under 16 and possession of child pornography, and was registered on the NSW Child Protection Register as a result. That registration carried ongoing reporting obligations, including the disclosure of online accounts and contact with children. Between 2009 and 2019, the offender repeatedly failed to comply with those obligations.

Beginning in January 2019, the offender contacted a 13-year-old girl (referred to as RR) through an anonymous messaging application called Whisper. Contact escalated through Kik, then WhatsApp, over a period of months. The offender, knowing RR was 13, cultivated what he described to her as a romantic relationship while progressively introducing her to extreme sexual content, directing her to produce images and videos of herself, and introducing BDSM concepts. RR registered herself as his "slave" on a dedicated website. After RR turned 14, the conduct continued at an even higher intensity.

The offender pleaded guilty to two counts of grooming (one involving a child under 14, one involving a child aged between 14 and 16), four counts of failing to comply with reporting obligations, one count of possessing child abuse material, and one count of possessing a pistol without authorisation. A number of further reporting obligation charges were included on a Form 1 to be taken into account in sentencing.

  • What aggregate sentence was appropriate across the multiple offences, having regard to the standard non-parole periods, the offender's criminal history, and the totality principle?
  • What weight should be given to the offender's plea of guilty, his prospects of rehabilitation, and any mitigating personal circumstances?
  • Whether the firearms offence warranted any punishment beyond a formal finding of guilt, given the surrounding circumstances.
  • How to apply the aggregate sentencing regime under the Crimes (Sentencing Procedure) Act 1999 consistently with the approach in cases such as Muldrock v The Queen and Markarian v The Queen.

Decision

Weinstein DCJ described the grooming offences as deeply serious. The offending involved sustained psychological manipulation of a vulnerable adolescent, the deliberate normalisation of extreme sexual practices, and the direction of a child to produce explicit material for the offender's gratification. The judge characterised the offender's conduct as treating RR as a "cybersex slave," noting the registered slave number, the dog tags bearing that number sent to her home, and the volume and content of messaging.

The offender's similar criminal history was treated as a significant aggravating factor. His prior convictions for child sexual offences meant the current offending could not be treated as an isolated lapse, and his continued failure to comply with reporting obligations between 2009 and 2019 demonstrated a persistent disregard for the protective purpose of the registration regime. The court nonetheless acknowledged that no offender is irredeemable, and assessed the offender's prospects of rehabilitation as guarded rather than non-existent.

In arriving at individual notional sentences, the court attributed appropriate weight to the guilty pleas. For the two grooming counts, which attracted the standard non-parole periods of 4 and 5 years respectively as guideposts under Muldrock, the notional sentences were 4 years (sequence 10) and 5 years (sequence 11). The four reporting obligation offences attracted notional sentences of 12 to 14 months each. The aggregate sentence was then constructed to reflect totality, avoiding a crushing outcome while remaining proportionate to the overall criminality.

For the firearms offence, the court found the charge proved but imposed no punishment under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, having regard to the circumstances of that particular conduct.

Orders Made

  • Convicted of four counts of failing to comply with reporting obligations (sequences 4, 5, 7, 8).
  • Convicted of possessing child abuse material (sequence 9).
  • Convicted of grooming a child aged between 14 and 16 (sequence 10).
  • Convicted of grooming a child aged under 14 (sequence 11).
  • Convicted of possessing a pistol without authorisation (sequence 12).
  • For sequences 4, 5, 7, 8, 9, 10 and 11: aggregate imprisonment of 8 years, with a non-parole period of 5 years and 7 months, commencing 27 February 2020; non-parole period expires 26 September 2025; head sentence expires 26 February 2028.
  • For sequence 12: offence proved but no punishment imposed pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999.

Key Takeaways

  • Sustained online grooming involving the deliberate normalisation of BDSM practices, the direction of a child to produce explicit material, and the cultivation of a false romantic relationship was treated by the District Court as gravely serious offending warranting a substantial head sentence.
  • A prior history of child sexual offences is a significant aggravating factor at sentence, particularly where the current offending mirrors earlier conduct and the offender was subject to a protective registration regime at the time.
  • Persistent failure to comply with child protection reporting obligations, maintained over many years by a registered offender, does not sit at the minor end of that offence category and attracts its own meaningful punishment within an aggregate sentence.
  • Under the aggregate sentencing regime, the court constructs notional individual sentences then imposes a single aggregate term calibrated by the totality principle, ensuring the overall sentence remains proportionate and not crushing.
  • Where a firearms offence is technically established but the surrounding circumstances make punishment inexpedient, section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 permits the court to record a conviction without imposing any further penalty.

Legislation and Cases Referenced

Legislation:
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
- Crimes Act 1900 (NSW), ss 66EB(3), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10(1)(a), 10A
- Firearms Act 1996 (NSW), s 7(1)

Cases:
- Burton v R [2020] NSWCCA 127
- Lyons v R [2017] NSWCCA 204
- Markarian v The Queen [2005] HCA 25
- Milliner v R [2019] NSWCCA 127
- Minehan v R (2010) 201 A Crim R 243
- Muldrock v The Queen (2011) 244 CLR 120
- R v Dagwell [2006] NSWCCA 98
- Small v R [2020] NSWCCA 216
- Tector v Regina [2008] NSWCCA 151