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District Court 5 November 2021

R v Butt

[2021] NSWDC 807

Sexual offences
CRIME RELEVANT FACTORS ON SENTENCE CYBERSEX OFFENCES VICTIM IMPACT GUILTY PLEA COMMITTED WHILE ON ICO

Citation: R v Butt [2021] NSWDC 807
Court: District Court of New South Wales
Date: 5 November 2021
Judge: Haesler SC DCJ

Background

The offender pleaded guilty to two counts of using a carriage service to groom a person under the age of 16 for sexual activity, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). The offending involved sexualised text and Snapchat messages sent to two girls aged 12 and 13. The first complainant was the daughter of a close friend, whom the offender had communicated with since January 2020. The second complainant was a friend of the first, contacted in December 2020.

At the time of the offending the offender was between 36 and 37 years old. The messages included sexualised comments about each child's body, offers of money and gifts, and suggestions of inappropriate behaviour. The offender was arrested on 8 January 2021 and remained in custody thereafter.

A complicating factor in sentencing was that both offences were committed while the offender was subject to two Intensive Corrections Orders (ICOs) imposed for earlier domestic violence and dishonesty offences. Those ICOs were revoked following his arrest and refusal of bail on the current matters, and he served out those sentences until 26 October 2021.

  • What was the appropriate objective seriousness of two grooming offences involving children aged 12 and 13?
  • How should the 2020 legislative increase in the maximum penalty (from 12 to 15 years) for the second offence affect the sentence?
  • What discount was appropriate for guilty pleas entered in the Local Court?
  • How should the sentencing court deal with offending committed while the offender was on ICOs, and how should those prior sentences interact with the commencement date of the current sentences?
  • What subjective factors were relevant, including the offender's drug abuse, psychological profile, and prospects of rehabilitation?

Decision

Objective seriousness: Haesler SC DCJ assessed the offences as relatively lower in objective seriousness compared to many similar matters before the Court, noting the comparatively low number of messages and the absence of graphic content. However, the Court treated the young age of the complainants, the significant age disparity between the offender and the children, and the use of inducements as serious aggravating features. The first offence was further aggravated by the exploitation of a pre-existing friendship and the resulting breach of trust.

Maximum penalty and parliamentary intention: For the second offence, the Court took into account the legislative increase in the maximum penalty to 15 years, applying the principle from Markarian v The Queen (2005) 228 CLR 357 that maximum penalties serve as sentencing yardsticks and that parliamentary increases may signal that prior penalties were regarded as inadequate. Nonetheless, the Court found that the second offence was objectively less serious than the first.

Victim impact: The Court heard directly from the first complainant, who described depression, daily crying, anxiety, loss of confidence, and a lasting erosion of trust towards men and male authority figures. The Court noted that this response, while tragic, was all too common in matters of this kind. The absence of a victim impact statement from the second complainant did not operate as mitigation.

Plea discount, commencement date, and totality: The sentences were reduced by 25% to reflect the utilitarian value of the guilty pleas, which also spared the complainants from giving evidence at trial. The Court declined to commence the sentences on 26 October 2021 as submitted by the Commonwealth Director of Public Prosecutions, but also declined to backdate to the date of arrest. Applying the principle of totality, and accounting for the need to impose some appropriate punishment for the breach of the ICOs without double-counting, the sentences were backdated to 8 May 2021. Each offence committed in breach of an ICO attracted a degree of additional weight in the sentence imposed.

Orders Made

  • Sequence 7 (first grooming offence): Convicted and sentenced to 1 year and 6 months imprisonment, commencing 8 May 2021, expiring 7 November 2022.
  • Sequence 9 (second grooming offence): Convicted and sentenced to 1 year and 4 months imprisonment, commencing 8 December 2021, expiring 7 March 2023.
  • Total effective sentence: 1 year and 10 months (partly cumulative).
  • The offender was directed to be released after serving 10 months of the total sentence (7 March 2022), upon entering a recognisance under s 21B of the Crimes Act 1914 (Cth) in the sum of $400 for 12 months.
  • Conditions of recognisance included: reporting to Community Services NSW on release; psychotherapy to address symptoms of anxiety and depression; psychotherapy to address any underlying sexual attraction to adolescent children; drug relapse prevention programs; drug abstinence monitoring; regular drug urinalysis; engagement in drug rehabilitation programs; and appearing to receive sentence if called upon for any breach.
  • Forfeiture order made over the offender's blue Realme mobile phone and memory card.

Key Takeaways

  • Grooming offences under s 474.17(1) of the Criminal Code Act 1995 (Cth) are treated as serious even where the volume of messages is low and the content is not graphically explicit, particularly where victims are very young and significant age disparity exists between the offender and complainants.
  • A mid-2020 increase in the maximum penalty for these offences, from 12 to 15 years, is a relevant factor in sentencing for conduct falling within the new maximum, consistent with the Markarian principle that legislated maximum penalties serve as sentencing yardsticks.
  • Committing offences while subject to an ICO is an aggravating factor, but a sentencing court must take care not to double-count that aggravation when also adjusting the commencement date to account for time served under the revoked ICO.
  • The principle of totality requires a sentencing court to consider the overall picture of an offender's custodial history, including the impact of bail refusal on the revocation of prior community-based orders, when fixing the commencement date of a new sentence.
  • Victim impact in cybersex or grooming matters can be severe and long-lasting even in the absence of any physical contact, and the District Court confirmed that harm from carriage services offences is not to be regarded as less serious than harm from direct physical offending against a child.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.17(1)
- Crimes Act 1914 (Cth), ss 21B, 23ZD

Cases:
- Adamson v R (2015) 47 VR 268
- Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Meadows v R [2017] VSC 290
- R v Engein [2014] QCA 313
- R v Nahlous [2013] NSWCC 90
- R v Thompson (2000) 49 NSWLR 383
- R v Whiteman [2021] NSWDC 557
- Rampley v R [2010] NSWCCA 293
- Stanton v R [2021] NSWCCA 123

Other material:
- Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3