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District Court 29 March 2021

R v Bussey

[2021] NSWDC 832

Sexual offences
CRIME CHILD SEX OFFENCES CHILD ABUSE MATERIAL TWO SUBSTANTIVE OFFENCES ONE FORM 1 OFFENCE EARLY PLEA OF GUILTY

Citation: R v Bussey [2021] NSWDC 832
Court: District Court of New South Wales
Date: 29 March 2021
Judge: Tupman DCJ

Background

The offender, a man aged 57 at the time of offending and 59 at sentence, came to police attention through a covert online investigation by the Child Exploitation Internet Unit. Officers assumed the online identity of a 36-year-old woman with an 8-year-old daughter and also adopted the identity of that child on a social networking website.

The offender contacted these assumed identities on 3 June 2019 and, over approximately ten separate online contacts through to 28 June 2019, engaged in explicit conversations introducing sexual contact with both the fictitious mother and child. On at least one occasion he communicated directly with the assumed child identity. He used his own mobile phone and real identity throughout, and on 28 June 2019 he travelled by train from Taree to Westmead, believing he was meeting the woman and her daughter for a weekend stay during which he intended to engage in sexual activity with the child.

When police arrested the offender at the Westmead address, they found a USB storage device containing 4,048 images and 354 videos, including 42 Category 1 images depicting real prepubescent children involved in or witnessing sexual acts. The 62 child abuse material images on the USB formed the subject of a Form 1 offence taken into account at sentence.

Legal Issues

  • What sentences were appropriate for the two substantive offences of using a carriage service to transmit child pornography material (Commonwealth) and intentionally procuring a fictitious child under 14 for unlawful sexual activity (NSW)?
  • How should the Form 1 offence of possessing child abuse material be taken into account in sentencing?
  • What was the objective seriousness of the offending, including the relevance of the fact that the child and mother were fictitious identities?
  • What weight should be given to the offender's subjective circumstances, including his mental health, criminal history, risk of reoffending, and early plea of guilty?
  • Whether the charging and certification approach under the Early Appropriate Guilty Plea (EAGP) Scheme was appropriate in the circumstances.

Decision

Objective Seriousness

Tupman DCJ assessed the sequence 4 offence (procuring a fictitious child for unlawful sexual activity) as approaching, but slightly below, the mid-range of objective seriousness (at [14]). The offender's belief that the child was real was directly relevant to this assessment, even though both identities were fictitious: his intention was genuine, and he acted on it by travelling to Sydney (at [12]). The court noted the child was believed to be only 8 years old, the proposed sexual contact was broad and serious in nature, and the offending spanned multiple contacts over approximately three weeks (at [13]-[14]).

The Form 1 Offence

The possession offence (sequence 2, the Form 1 matter) was treated as a relatively serious offence in its own right. The court found it particularly chilling that the offender had the USB containing explicit images of real children on his person when travelling to meet who he believed was an 8-year-old child (at [16]). The court gave it meaningful weight by slightly elevating the sentence for sequence 4 beyond what it would otherwise have been (at [16]).

The EAGP Scheme and Charging

Tupman DCJ observed that the facts underlying the Commonwealth offence (sequence 3) were almost entirely subsumed within those of the more serious sequence 4 offence, and that there was no logical reason both were certified and sent to the District Court (at [11]). Her Honour expressed concern that the EAGP Scheme was producing more complicated sentencing exercises than necessary, with inconsistent and excessive charges being certified (at [11]). As a result, the sentences for the two substantive offences were ordered to be served concurrently (at [15], [26]).

Subjective Circumstances and Discount

The offender received a 25% discount on the NSW state offence for his early guilty plea (at [17]). His depression was noted but found to have no material connection to the offending and did not reduce his moral culpability (at [18]). The Static 99R actuarial assessment placed him at Level 3 average risk of reoffending, and the absence of any prior sexual offending history was a favourable dynamic factor (at [21]). The court found his prospects of rehabilitation were relatively good, particularly given his age, first-time imprisonment, community support from his adult children, expressed remorse, and motivation to engage in treatment (at [22]-[23]). Special circumstances were found, warranting a longer than usual parole period to allow for supervision, treatment for depression, and management of his chronic wrist pain (at [25]).

Orders Made

  • The offender was convicted of both substantive offences.
  • Sequence 3 (Commonwealth offence, using a carriage service to transmit child pornography): sentenced to 18 months imprisonment, commencing 28 June 2019 and expiring 27 December 2020, served concurrently with the state sentence.
  • Sequence 4 (NSW state offence, procuring a fictitious child for unlawful sexual activity): non-parole period of 3 years and 3 months commencing 28 June 2019 and expiring 27 September 2022, with a parole period of 2 years thereafter expiring 27 September 2024, giving a total term of 5 years and 3 months.
  • The Form 1 offence (sequence 2, possession of child abuse material) was taken into account when sentencing for sequence 4.

Key Takeaways

  • The District Court confirmed that where an offender genuinely believes a police-assumed online identity is a real person, that belief is directly relevant to assessing objective seriousness, regardless of the fact that no actual child was at risk (at [12]).

  • Possession of child abuse material depicting real children, carried on the offender's person at the time of travel to meet a person believed to be an 8-year-old, was treated as a meaningful aggravating feature, warranting a Form 1 uplift to the substantive sentence (at [16]).

  • A 25% utilitarian discount applied to the early guilty plea for the state offence, even where the prosecution case was very strong (at [17]).

  • Special circumstances justified a longer parole period where an offender is a first-time prisoner with ongoing psychiatric conditions requiring post-release treatment and community supervision, and where chronic pain will make the custodial term more onerous (at [25]).

  • Tupman DCJ expressed clear criticism of the EAGP Scheme's operation in practice, finding that it had produced unnecessarily complex sentencing exercises through inconsistent and excessive certification of charges, with the facts of one substantive offence almost entirely subsumed within those of another (at [11]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 66(E)(B)(2), 91(H)(2 );
- Criminal Code Act 1995 ( Cth): s 474.19(1).

Cases
- Not stated