R v Waters

[2017] ACTSC 226

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Waters

Citation:

[2017] ACTSC 226

Hearing Date:

1 August 2017

DecisionDate:

1 August 2017

Before:

Burns J

Decision:

See [14].

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit a communication that included material that was indecent to a person who was under the age of 16 years old or a person believed to be under the age of 16 years old – plea of guilty – lower end of scale of offences – psychologist report – reasonable prospects of rehabilitation – Good Behaviour Order with supervision imposed.

Legislation Cited:

Criminal Code Act 1995 (Cth) s 474.27A

Parties:

The Queen (Crown)

Mathew Waters (Offender)

Representation:

Counsel

Mr T Ellison (Crown)

Mr P Edmonds (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Paul Edmonds and Associates (Offender)

File Number:

SCC 87 of 2017

1. On 6 April 2017, in the Magistrates Court, you entered a plea of guilty to one charge contrary to s 474.27A of the Criminal CodeAct 1995 (Cth) (‘the Criminal Code’) alleging that between 10 August 2016 and 6 October 2016, being a person aged 18 years or over, you used a carriage service to transmit a communication that included material that was indecent to a person who was under the age of 16 years old or a person you believed to be under the age of 16 years old.

1. Having entered that plea of guilty, you were committed for sentence to this Court. You have maintained your plea of guilty to that charge and it now falls to me to sentence you. I note with respect to the charge that the prosecution is based upon the allegation that you engaged in the communication with a person that you believed to be under the age of 16 years.

1. A Statement of Facts was tendered and I will not now recite the facts. It is sufficient to note that you initially engaged in message communications via Facebook Messenger with a 15-year-old male. However, that 15-year-old male and those who were responsible for him quickly notified the police and the police took over the conduct of the communication from that end. It is accepted that you did not form a belief that the complainant was under 16 years of age until 22 September 2016 and therefore I accept that you were not specifically targeting boys under the age of 16 years at the time that you entered into the communications with the complainant. 

1. The most significant communication which occurred in terms of indecency was a request made by you for a shirtless image of the complainant. It has been accepted by the prosecution, and I think rightly so, that this request is at the lower end of the range of indecency which may fall within offences under s 474.27A of the Criminal Code. I therefore accept that the objective seriousness of this offence was towards the lower end of the scale of offences of this nature.

Subjective features

1. I take into account the contents of the Pre-Sentence Report that has been prepared.  You are 46 years of age, you grew up in a pro-social environment and you continue to have the ongoing support of your parents. As I understand, at the time of this offence, you were residing on your own but you have subsequently, in accordance with your bail conditions, returned to reside with your parents.  It appears that this has had a positive effect upon you as your parents have enforced a regular routine on you which has assisted you in maintaining a positive pro-social lifestyle.

1. There appears to be no history of drug or alcohol abuse. You maintained regular employment up until 2016 when you became a recipient of the Newstart Allowance.

1. The author of the Pre-Sentence Report expressed the opinion that you displayed some insight into your offending behaviour. However, you did also attempt to minimise some of your actions. You were able to identify how the impact of your behaviour had affected the complainant and the people who had been indirectly affected by your actions such as the complainant’s family members. The author of the Report said that you had stated that you were willing to attend any programs or treatment as directed. I note that you were found unsuitable for community service work as you were not able to obtain a Working with Vulnerable People card.

1. A report from a psychologist, Mr Ross White, dated 24 July 2017 was tendered during these proceedings. A summation of that report would be that you are a person of average intellect, that you suffer from an anxiety disorder which had no connection with the present offence, that you expressed considerable remorse about your offending behaviour and also expressed a determination to ensure that it would not happen again. It was the opinion of Mr White that you had insight about the impact of your offending behaviour and that your awareness of the impact of your behaviour has increased as you have become more and more aware of the potential consequences that could occur.  Mr White expressed the opinion that your prognosis was very good. 

1. Mr White noted that you had learned considerably from the experience of having been charged with respect to this offence and you had developed insight about the negative impact of the offence on the victim and his parents as well as on your own family. Mr White expressed the opinion that you are not likely to repeat the offence. It is of some significance that your father volunteered to Mr White that he had observed positive changes in you subsequent to being charged with this offence.

Consideration

1. Your plea of guilty, as I have already noted, was entered in the Magistrates Court. It was entered at an early opportunity and I am satisfied that it demonstrates a willingness to facilitate the course of justice.

1. I take into account the fact that you have expressed remorse, not only to Mr White but also in a letter which has been tendered before the Court today. I am satisfied that your prospects for rehabilitation are reasonable based upon your willingness to engage in treatment and, indeed, I note in that respect that you have been seen now on a number of occasions by Mr White. As I have said, Mr White’s report was dated 24 July and at that time, you had seen him on seven occasions.

1. In addition, in forming the opinion that you have reasonable prospects for rehabilitation, I have taken into account the fact that you have complied with your bail conditions which were reasonably onerous over a period of some 10 months leading up until today.

1. I have been greatly assisted by the submissions of counsel and also the cases to which they have drawn my attention. In my opinion, the appropriate course in this matter is to record a conviction and to impose a Good Behaviour Order with supervision. I also note at this time that I take into account the maximum penalty for the offence which is one of seven years imprisonment.

Sentence

1. You will be convicted and there will be a Good Behaviour Order for a period of 20 months, which I have reduced from 24 months in order to reflect your plea of guilty, with the following conditions:

(a)you are to accept the supervision of the Director-General or that person’s delegate for that period of 20 months or such lesser period as deemed appropriate by your supervising officer;

(b)you are to undertake such assessments, counselling or treatment as directed by the Director-General or that person’s delegate; and

(c)you are to be assessed for - and if found suitable - participate in the Adult Sex Offenders Program as directed by the Director-General or that person’s delegate.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.

Associate:

Date: 17 August 2017