THE KING v RODNEY NOEL BESSELL 10 NOVEMBER 2022
COMMENTS ON PASSING SENTENCE JAGO J
Rodney Noel Bessell, you have pleaded guilty to five counts of encouraging an offence against sub-section 272.19 (1) of the Commonwealth Criminal Code, namely encouraging the offence of procuring a child to engage in sexual activity outside Australia, the child being under 16 years of age and the conduct being reasonably capable of encouraging such an offence. You have also pleaded guilty to three counts of engaging in sexual activity with a child outside of Australia, contrary to s 272.9 of the Commonwealth Criminal Code. Additionally, you have pleaded guilty to one count of causing child abuse material to be transmitted to yourself contrary to s 474.22 of the Commonwealth Criminal Code and one count of possession of child abuse material obtained using a carriage service contrary to s 474.22A(1) of the Commonwealth Criminal Code.
On 14 October 2019, you arrived at Tullamarine Airport from an international flight. You were subject to routine Australia Border Force screening. An analysis of a mobile phone, an iPhone XR, in your possession at the time disclosed a number of images depicting underage females engaged in sexual activity. Australian Federal Police were contacted. They conducted a further analysis of the mobile phone. Found on it, was a Skype application. That disclosed a chat of interest that you had been involved in with an individual identified as “Jenny Yaon”. A search warrant was subsequently obtained and executed at your residence. During the search, a further mobile phone, an iPhone 6, was located. This was also found to contain child abuse material.
The material found on the iPhone XR contained five category one images and four category two images, defined in accordance with the now well-understood Anvill categories. These files were located within the chat logs of the Skype application. Analysis of the chat logs also revealed that between 25 September and 13 October 2019, you had participated in several Skype chats with Jenny Yaon. Throughout the chats you had requested and paid for livestream video calls with pubescent females, engaging in sexual activity. This behaviour encompasses counts one to eight. You had also caused images – which were the child abuse material – to be transmitted to yourself and then saved them across two devices. This behaviour encompasses counts nine and ten.
A summary of the chat was included as part of the Commonwealth papers. I have read and considered the entirety of the transcript provided. I do not consider it necessary to traverse in these comments the entirety of the chat. It is sufficient to say that you made comments indicating your sexual interest in the female children, including indicating an interest in having sexual intercourse with them. You asked whether there were “any yummy youngs around?” During the chats, there was reference to the girls being at school. You must therefore have appreciated their young ages. There was a conversation about you wishing to observe two girls behaving sexually towards each other. You gave directions as to the types of sexual acts you wished to see. There was conversation about you becoming sexually excited from observing the children engaged in sexual activity. You asked for naked pictures of the young girls to be sent to you. You asked whether the young girls had enjoyed watching you masturbate yourself during the online chats.
In terms of images that were sent to you, eight images in total were sent via the Skype chat. Four images were initially sent. They depicted a naked, pubescent female laying on a bed, touching her genitals with both hands and smiling whilst a second naked young person was standing to the side of the bed, touching the first young female’s chest. Image two depicted a young female lying on the bed with her genitals exposed whilst a second young person was touching her breast. Image three depicted a young female person lying on the bed with her legs spread open and her hands on her genitals. A second young person is touching the first young female’s breasts with both hands. The fourth image shows a young person lying naked on the bed, touching her genitals whilst a second young person touches her breast area.
You then requested a second set of images to be sent to you. A further four images were sent. Those four images all depicted two young female persons standing naked in a room. The smaller young female was touching her left breast and had her underpants pulled down around her ankles. The second pubescent female was standing with her hands on her hips, again with her clothing around her ankles. Their faces could be seen in the images.
It seems you also stored these images on a second device – the iPhone 6. Examination of that phone disclosed 16 images depicting pubescent females with their genital areas exposed. They were of a similar nature to the images located on the iPhone XR.
The chat logs also disclose you bartering over the money you would pay for live stream video calls with the young females, and on two occasions the chat confirms you had transferred money from your World Remit bank account to an account in the Philippines. Your World Remit bank account records confirm a transaction was made to the Philippines on 26 September 2019 for $73.01AUD and on 27 September 2019 for $36.01AUD.
On 31 January 2020, you participated in a record of interview. You admitted you had solicited child abuse material via Skype. You admitted you had paid a woman outside of Australia to show you children engaging in sexual activity. You said you knew they were under the age of 18 years. You admitted that you had created your World Remit bank account specifically for the purpose of paying for sex chats and live video streaming.
You are now 64 years of age, you were 61 at the time of the offending. You have no relevant prior convictions – indeed, no criminal convictions at all. You are otherwise of good character, having made significant contributions to the community throughout your life in sporting fields, both as a participant and an administrator. Offending of this nature, however, is such that your prior good character is generally of limited weight in the sentencing process.
You were raised on the North West coast. You completed education and then worked on the family farm for a period of time, before moving into employment in the mining industry. Subsequent to that, you were self-employed in a retail business. In 2003, that business experienced financial difficulties, many arising as a consequence of burglaries that were committed upon the business. It was forced to close. Stress and pressure associated with that contributed to a marriage break down and a difficult property settlement followed. You re-married in 2003. In 2004, you returned to the mining industry and continued to work in that industry until the mine in which you were employed shut down. You then relocated to Queensland, where you again obtained employment in the mining industry. You worked until June of 2022, when you finished employment in anticipation of the trial occurring. It is fair to say that you have been constantly employed throughout your life and, given the positions you have obtained within your respective places of employment, have obviously worked hard and been well regarded.
I am told that from about 2010, your second marriage began to deteriorate. You were working away in the mining industry for large periods of time and there were a number of other stressors that also impacted your relationship. I am told it was not a happy marriage. In 2015, you met, via the internet, a Filipino lady. You developed a friendship with her. Through this friendship you received communication from Jenny Yaon. She contacted you via text message and then Skype. She initially offered you naked images of herself. You agreed you wanted to see some images and, as two consenting adults, engaged in some online sexual behaviours. I am told she then introduced to you the concept of the two young females becoming involved. You recognised that the two girls were young and, quite frankly, having seen images of the two children, it would be, in my view, nigh on impossible not to recognise that they were under 16 years of age.
Your Counsel described your behaviour to me as “sex talk”. In my view, your behaviour went far beyond that. In respect to the first five charges, you encouraged the offence of procuring a child under the age of 16 to engage in sexual activity by encouraging another person, Ms Yaon, to find children to engage in sexual activity online so that you could watch it and obtain sexual gratification from it. Your offending behaviour included you asking if a child would have sex with you, commenting on it being “more yummy” if the child was a virgin and asking on more than one occasion if there were “young ones around”. At times you directed what you wanted to see by way of the children’s behaviour. For example, you would ask would they play with each other, and kiss and touch their genitalia. You also asked for more than one child to be present. On occasion, you asked if there were any “new girls”.
From many of the comments made by you in the Skype chat, it is obvious you obtained sexual gratification from your participation in the on-line sexual activity. In my view, it is an aggravating factor that you bargained over the price that you would pay for the on-line sexual activity. Whilst the amounts paid were small in terms of Australian dollars, they translate to much more value in the Philippines. This is indicative of the exploitation and vulnerability that are associated with crimes of this nature. Your preparedness to barter over what you paid is indicative, in my view, that you viewed the children involved as mere commodities for your entertainment.
In respect to charges six, seven and eight, there is direct evidence that a child performed an on-line sex show for you. It seems on occasion that you exposed yourself also during these on-line video streams, as the chats in the Skype application record you saying “Did the girls like that?”; “Did the little ones like seeing my cock?” and “I really enjoyed seeing them naked”. The call records within the Skype application indicate that some of these calls lasted for in excess of ten minutes. That, of course, is not evidence that the children were involved for the entirety of that time, but it certainly demonstrates your willingness to engage in conversation relevant to these activities for longer than menial periods of time.
In summary you encouraged another to procure young children to facilitate live showings of sexual abuse of children, and on at least three occasions the sexual abuse occurred. You watched it live on Skype and you participated in it by sending directions as to what the children should do. You masturbated in front of the children during the live streams. You paid money to have the sexual activity performed by children. All of those circumstances, in my view, make this most serious criminal conduct.
I accept the submissions made by the Commonwealth that the applicable principles in sentencing for on-line child abuse offences include the following:
- the age and number of children involved;
- the gravity of the sexual offending;
- the extent of cruelty or physical harm occasioned to the child victim;
- the vulnerability of the child to sexual exploitation, including the country in which the child resides and the child’s economic circumstances.
I note, it can readily be accepted that children overseas may be more easily exploited for the sexual gratification of adult offenders because of their economic vulnerability and the fact they often live in environments where strong protection from exploitation is absent.
Further applicable principles are:
- the role of the offender in the offending in terms of being responsible for the selection of the child victim/s;
- the nature and duration of the offences;
- whether the offending involves third parties, including adults and, if so, the number of adults involved;
- whether the offender provided any payment or other material to a third party;
- the level of control exercised by the offender over the offending, including by communications and directions with the person overseas;
- the degree of planning, organisation and sophistication used by the offender in causing the child to engage in the sexual offence;
- whether payment or other benefit was received by the offender for causing the child to engage in sexual activity, or for disseminating any recording;
- whether the offender acted alone or in a collaborative network of like-minded persons.
As to the possession of child abuse material charges, the principles relevant to sentencing in such matters are now well established. The objective seriousness of such offending is ordinarily determined by reference to the following factors:
- (i) the nature and content of the material, the age of the children and the gravity of the sexual activity depicted, including the extent of any cruelty or physical harm occasioned to the child involved;
- (ii) the number of items or images possessed;
- (iii) whether the material was for the purpose of sale or further distribution;
- (iv) whether the offender will profit from the offence, which includes payment or material benefit such as the exchange of child pornography material;
- (v) the number of children depicted and therefore victimised; and
- (vi) the length of time for which the pornographic material was possessed.
I take all of those factors into consideration as they are relevant to the factual circumstances that I have outlined. I also take into account the matters set out in s 16A (2) of the Crimes Act that are relevant and known to me.
It is well established that general deterrence is a very significant sentencing consideration for offending of this nature. The objective of the legislation is to protect vulnerable children from sexual abuse and other forms of sexual exploitation by Australians, whether that be in circumstances where they are travelling overseas, or in circumstances where they are engaging in such conduct from Australia on an on-line basis. The absolute prohibition on sexual activity with a child is founded upon a presumption of harm. The presumption of harm is not displaced because the offending occurs on-line rather that in person. The need to protect children from sexual abuse in whatever form it takes, is so obvious that it hardly needs stating.
In terms of the objective seriousness of the offending, I take into account the length of time over which the offending occurred. I accept it was for a limited period of time. I take into account the number of children involved and the acts which they were required to perform. I have viewed a sample of those acts. I do not need to restate them here. I also note that the number of images that the defendant possessed was small and the gravity of those images is not towards the higher end. No cruelty was involved. There is no suggestion that the defendant was to profit from any of these behaviours. The difficulty in detecting offending of this nature because it does occur on-line and overseas is also a relevant consideration. It enhances the need for general deterrence in the sentencing exercise.
This offending could not be said to be spontaneous. It involved multiple conversations and as noted the offending involved at least two different female child victims. There was a clear disparity in the age, level of maturity and financial position of the defendant as compared to the child victims. Obviously, the defendant was a mature man in a position of financial stability. The children were young, they were vulnerable and they were in a position whereby they were unable to protect themselves or act in a manner that was consistent with their own interest.
As to the possession of child abuse material charges, general deterrence is also the primary sentencing consideration, given the prevalence and ready availability of such material on the internet and the obvious need to protect children from such abuse. Time and time again, judges of this Court have noted the appalling suffering that is experienced by children who are exposed to the production of child abuse material and otherwise exploited in a sexual manner. Of course, here not only was the child abuse material transmitted and possessed by the defendant, but he observed the young girls as the sexual acts were occurring. The gross inappropriateness of what he was a participant in was immediately before him. Of course, I take into account that the defendant had no direct physical contact with the children involved. But it is his preparedness to obtain sexual gratification from the abuse of young children, regardless of the geographical distance that may have existed, and the fact it was occurring on line, that is the gravamen of the criminal conduct. It is recognised that the harm perpetrated by any level of child abuse is almost inevitably grave, and in many ways immeasurable. There is a paramount public interest objective in promoting the protection of children from sexual exploitation.
Given general deterrence is the primary sentencing consideration, personal mitigatory factors such as prior good character, prospects of rehabilitation must be given less weight than normal. Denunciation, punishment and protection of the community are further important sentencing considerations.
Here, the overall offending involves four distinct and discreet offence types. I note that there is a degree of overlap in terms of the criminal conduct between the charges. For example, the material that the defendant caused to be transmitted to himself was also the child abuse material that he possessed. In a similar vein, in respect of the charges of engaging in a sexual activity with a child under 16 outside Australia, each of those charges corresponds with a charge of encouraging the procurement of a child under 16 to engage in sexual activity. To this end, many of the sentencing aims overlap between the charges. In my view, these considerations are most appropriately addressed by the imposition of a global sentence. In determining this, I do not ignore the presumption within the Crimes Act in favour of cumulative sentences, but ,in my view, that does not sit well in this sentencing exercise and totality and proportionality is best reflected through the imposition of a global sentence.
I take into account the defendant’s pleas of guilty. Whilst it could not be said they were early pleas of guilty, it is relevant that originally the defendant was charged with somewhat different offences. There was also some delay in full disclosure being obtained and considerable negotiations have occurred. The delay in this matter being finalised is understandable and I treat it as a neutral factor in sentencing. Ultimately, the defendant has pleaded guilty to charges which are consistent with what he admitted to in his record of interview. His plea has utilitarian value in avoiding the cost and delay of a trial, which may have had its complexities in terms of its prosecution, and it brings finality to these proceedings. The plea of guilty certainly retains mitigatory value.
The plea of guilty is also an acknowledgement of wrongdoing. I accept the defendant is now ashamed and embarrassed by his behaviour; although I do have some reservation as to the degree of insight he has as to the seriousness of his offending and the very real prospect that his behaviour resulted in significant harm to the child victims. I nevertheless accept there have been salient consequences for the defendant. He has left Tasmania and the supports he has here because of his embarrassment over these charges. The inevitable conviction that will flow from this sentencing process will most likely mean, given his age, that he will not work again. This will impose a financial strain upon him. I am told the defendant’s diabetes has worsened with the stress of these proceedings, but there is nothing before me to suggest that cannot be managed within a prison environment. I acknowledge these consequences have flowed. They are relevant to the likelihood of reoccurrence and therefore specific deterrence, but of course, they are all of the defendant’s own making and flow directly from his choice to engage in this behaviour.
Generally, I take into account the maximum penalties which are applicable to the various offences. They reflect the objective seriousness of the crimes. I also note that had this offending occurred only a matter of months later, the defendant would have been subject to mandatory minimum sentencing provisions. Obviously, I am not bound by such provisions but it is relevant to consider that the introduction of such mandatory sentencing was directed at ensuring the penalties imposed for committing child sex offences appropriately reflect the gravity of the behaviour, and also reflect the right of children to protection from all forms of sexual exploitation. There are few sentences of sufficient similarity to establish a sentencing practice for crimes of this nature however. What can be gleamed from comparable sentences, is that the need for general deterrence to be given dominance in the sentencing exercise usually means a period of imprisonment is warranted.
My primary obligation as a sentencing judge in respect to Commonwealth offences is to impose a sentence that is of a severity that is appropriate to all of the circumstances of the offending. The Court’s denunciation of the defendant’s behaviour and commitment to the protection of children should also be reflected in the sentence imposed. I have given this matter careful consideration. In my view, the only appropriate sentence which adequately reflects all sentencing principles, is a period of imprisonment.
I make the following orders: Mr Bessell, you are convicted of all matters to which you have entered pleas of guilty. I will impose one sentence. You are sentenced to imprisonment for a period of three years and six months. I order that you not be eligible for parole until you have served 18 months of that sentence. That reflects, in my view, an appropriate balance between severity of punishment and allowance for re-integration into the community with appropriate supports if deemed necessary, attaching to any parole order
I am required to make an order under the Community Protection Offender Reporting Act 2005, unless I am satisfied that the defendant does not pose a risk of committing a reportable offence in the future. Having regard to the circumstances of this case, I am not so satisfied and accordingly make an order. I order that your name be placed on the Register pursuant to that Act, and that you comply with the reporting obligations under the Act for a period of ten years, which will commence on the date of your release from Prison.