STATE OF TASMANIA v NATHAN DAVID IKIN 19 DECEMBER 2023
COMMENTS ON PASSING SENTENCE JAGO J
Mr Ikin, you have pleaded guilty to three counts of the aggravated offence of using a carriage service to menace, harass or cause offence involving transmitting, making available, publication and distribution of private, sexual material. In sentencing you I have regard to the matters set out in the Crimes Act (Cth) Part 1B. You committed the offences on 18 June 2020, 25 June 2020 and 8 March 2022 when you sent naked photographs of the complainant to two other people, via Facebook Messenger. You and the complainant had been married between 2012 and May 2021. During the marriage you had taken photographs, using your mobile phone, of the complainant whilst she was naked in the shower. The images you took were full length shots of the complainant, facing the camera. The photographs were taken without the complainant’s permission. When she became aware you were taking the photographs, she asked you why you were taking them and asked you to stop. You told her the photographs were only for you.
In 2020, you were communicating via Facebook Messenger with a person known as Bridgette. Many of the messages you exchanged with Bridgette were sexual in nature. On 10 June 2020, you asked Bridgette if she wanted to see a video of the complainant “butt naked”. You made other sexual comments about the complainant and asked Bridgette if such material aroused her. On 18 June 2020 you again sent a sexually suggestive message to Bridgette. You then sent Bridgette a photograph of the complainant, naked in the shower. Shortly after sending that photograph, you sent a separate photograph of a penis. A week later, on 25 June 2020, you sent two further photographs to Bridgette, via Facebook Messenger. Both of these photographs were of the complainant naked in the shower, facing the camera.
On 8 March 2022, you made contact with a male by the name of Max, again via Facebook Messenger. Max was an acquaintance of yours, the two of you having been in a volunteer fire brigade together. You exchanged some innocuous messages with Max before asking him “Do you like tits?”. When Max replied “All guys do”, you sent Max a photo of the complainant’s face. You followed it with a photo of a naked woman, which appeared to be from the internet. The conversation continued. You then sent Max a naked photograph of the complainant in the shower. You told Max that photograph was of your wife. You then asked Max if he had any similar photographs of his wife. At that point, Max said the conversation had gone too far. You apologised and you deleted both the photographs of the complainant from the chain of messages. Of course, deleting the photographs did not eradicate the possibility that Max had already taken a screen shot, or the like, of the photographs, therefore making them available for further distribution. There is no suggestion that he did, but it highlights the danger associated with this sort of criminal behaviour.
Max, in fact, contacted Bridgette about the message exchange he had had with you. Bridgette, in turn, contacted the complainant. This led to the complainant challenging you about the fact you had sent the photographs. In response, you threatened to cease contact with your son whom you shared with the complainant. This was obviously upsetting to her and initially the complainant did not report the matter to police. In June 2022 she did report the matter to police. For unexplained reasons, it was not until December 2022 that you were spoken to by police. You made full admissions to the conduct during interview. You agreed with police that you had taken photographs of the complainant whilst she was in the shower, naked. You said to police that she had observed you take one of the photographs, but she was unaware you had taken the other photographs. You agreed that you had sent naked photographs of the complainant to both Bridgette and Max without her consent. You told police you did this because you were hopeful that you may be able to arrange a sexual encounter between you, the complainant and Bridgette, or Max. You told police that at the time you engaged in this behaviour, you were in a poor emotional state. I note that by the time you sent the latter photographs, your relationship with the complainant had broken down and you were suffering from depression and anxiety.
Your behaviour in acquiring and retaining the photographs of the complainant without her consent involved a significant breach of trust. In respect to the photographs the complainant knew about, you told her the photographs were only for you. You breached the trust inherent in any marriage when you forwarded the photographs to others. Your offending has had a marked impact upon the complainant. I have carefully read and considered her victim impact statement. Your behaviour has impacted her life in a number of ways. She feels ashamed, embarrassed and humiliated. She is troubled about how many people may have seen the material. She is constantly anxious and in a state of hyper vigilance. Her ability to go about her life as normal has been impacted by a deep sense of vulnerability. She constantly worries she will be recorded if out in public and that she has no control over what may occur with any such recording. She has developed significant trust issues. It is fair to say she has experienced significant and ongoing psychological and emotional impacts from your conduct. The fact that she has to continue to associate with you as the father of her child, only exacerbates such impacts.
You are 40 years of age. You have no relevant prior convictions. You have one child with the complainant and you continue to see that child on a regular basis. Since your separation from the complainant in May 2021, you reside with your parents in their home. Your younger brother also lives in that home. In July 2022, he suffered a life altering stroke. You assist in your brother’s ongoing care. You have a strong industrious record. You have worked constantly since leaving school. More recently, you have been employed as a truck driver in your brother’s business. In March 2023, you purchased your own truck and started a cartage company. You have been working long hours to ensure the business is successful. You continue to support the complainant with child support and also contribute to medical costs associated with some investigations that are currently occurring into some health issues impacting upon your son.
You were in a relationship with the complainant for some 10 years. You and the complainant experienced fertility issues. You engaged in a number of IVF cycles. Whilst endeavouring to conceive, you experienced ectopic pregnancies and miscarriages. It was a very difficult, emotional and taxing experience for both of you. It was also financially draining. Eventually, the emotional and financial pressures took their toll and the marriage collapsed.
You very much regret your actions. You acknowledge that you breached the trust the complainant was entitled to expect from you. You acknowledge that you have caused her pain and upset, and you regret that and the impact it will have on your ability to co-parent your child going forward. You have, for a number of years, struggled with depression and anxiety but there is nothing before me to suggest any causal connection between such mental health issues and the commission of these crimes.
I take into account your pleas of guilty. They were entered at an early stage whilst the matter was still before the Magistrates Court. I accept that the guilty pleas have a significant value in mitigation. They have provided the complainant with vindication and certainty in terms of the outcome of the prosecution and have relieved her from the burden of having to give evidence in Court. I also accept your pleas of guilty and co-operation with police is indicative of your remorse and contrition. I accept the experience of being charged and facing court proceedings has been a salient and frightening one for you, which is relevant to the weight to be given to personal deterrence in the sentencing exercise.
There is no question these are very serious crimes, as reflected by the fact penalties for crimes of this nature were increased in 2021 in recognition of the prevalence of the crime, the ease with which they can be committed, and the enormous harm that can flow from their commission. Although you sent the images to two specific people via a messenger chat as opposed to placing them onto a more public domain, as I have already noted, once you sent the messages you had no control over what the recipient may do with them. It was outside of your control as to whether, for example, they took a screen shot and distributed the material further. The risk associated with the material being further distributed adds to the uncertainty for the complainant. Indeed, it is a factor that she notes in her impact statement as being of ongoing concern for her. Your behaviour involved a direct attack on the complainant’s privacy and sense of security. Your behaviour has caused her embarrassment and humiliation. General deterrence and denunciation are most important sentencing considerations.
In my view, the serious nature of this offending and the need to emphasise general deterrence and denunciation, means that a period of imprisonment is warranted but I am satisfied that in the circumstances of this case, imprisonment can take the form of home detention. Such a sentence will have an immediate punitive impact upon you but will also achieve the sentencing aims of deterrence and denunciation.
I make the following orders. You are convicted of the offences to which you have pleaded guilty. I consider it appropriate to impose one penalty. I make a Home Detention Order, the operational period of which is nine months. The statutory core conditions are those contained in s 42AD(1) of the Sentencing Act. All conditions will be set out for you in writing. I specify the home detention premises as (address redacted). I impose the following special conditions which will apply for the whole of the operational period of the order:
- You must not commit an offence punishable by imprisonment.
- You must be at the home detention premises at all times, except when you are not there for a “relevant reason” as specified in s 42AB ss 4 of the Sentencing Act 1997, this includes going somewhere, including going to your employment, with your probation officer’s permission.
- You must permit a probation officer, a police officer, or other prescribed officer to enter those premises.
- You must permit a police officer to conduct a search of the premises, conduct a frisk search of you and take a sample of any substance found on the premises or on your person.
- You must submit to electronic monitoring, including the wearing or carrying of an electronic monitoring device.
- You must not remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring.
- You must not allow anyone else to remove, tamper with, damage, disable or interfere with the proper functioning of any electronic monitoring device or equipment used for the purpose of electronic monitoring.
- You must comply with all reasonable and lawful directions given to you in relation to the electronic monitoring device, including directions relating to the installation, attachment or operation of the device, or system used for the purpose of electronic monitoring, if those directions are given to you by a police officer, a probation officer, another prescribed officer or any other person whose functions involve the installation or operation of a device or system used for the purpose of electronic monitoring.
- You must maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections and be accessible for contact through that device at all times.
- You must not take any illicit or prohibited substances.
- You must not take any medication containing an opiate, benzodiazepine, buprenorphine, hydrochloride or pseudoephedrine unless you provide written evidence from your medical practitioner that you have been prescribed that medication.
- You must not during the operational period of the order consume alcohol and you must submit, if directed to do so by a police officer, or community corrections officer, to a breath test, urine test or other test for the presence of alcohol.
- You must submit to the supervision of a Community Corrections Officer as and when required by that Officer.
I direct that you report to Community Corrections, Hobart by 10am tomorrow for induction onto this order.