THE KING v KJD 29 NOVEMBER 2024
COMMENTS ON PASSING SENTENCE MARTIN AJ
KJD, you have pleaded guilty to one count of using a carriage service to transmit indecent communication to a person aged under 16 years. You are convicted of that offence. Your offending occurred over a seven day period from 2 to 9 November 2022 when you communicated via Snapchat on numerous occasions with the 11 year old daughter of a good friend. You were then aged 29. The maximum penalty for your crime is imprisonment for ten years.
You and the mother of the child had known each other since childhood. During the COVID pandemic you became neighbours in another state and reconnected as friends, often socialising together with the child. You knew that the child’s mother regarded you as a good friend, you were like cousins. You also knew that the child was aged only 11 years.
In October 2022, you moved to Hobart. It appears that the child added you on Snapchat and innocent communications occurred over a short period. However, early in November 2022, your communications crossed the line into indecent communications over approximately seven days. Fortunately, on 1 November 2022, the child’s mother noticed a Snapchat notification on the child’s iPad containing the message, “LOL sorry bored” and a photo of a wine bottle and a glass of wine. As you are well aware, Snapchat messages are only open for a short period of up to ten seconds before they disappear, effectively self-destructing, but they can be recorded by the receiver.
The child’s mother monitored and recorded your messages, including images you sent and she responded pretending to be her 11 year old daughter. The child’s mother is to be commended for her vigilance and foresight.
The messages and images you sent were intended for the 11 year old child. Your Counsel put to me that sending indecent photos was, and I quote, “not on your radar” and also put to me that you did not intend to do so. I do not agree with those submissions, and you chose not to provide any evidence to support them. Although you did not send any images of you totally naked, nor any explicit, that is, explicitly showing your body unclothed in the genital area, the images were sexual in nature, and I am satisfied beyond reasonable doubt, that you intended to create a sexual atmosphere around the communications.
The Crown Statement of Facts contains in paragraph 7 a number of the text messages and refers to a number of the images. I will have attached to the sentencing remarks, paragraph 7 of the Crown facts, which sets out the relevant messages. It is sufficient for present purposes to note that an image on 2 November 2022 was of your clothed groin, the outline of male genitals was visible. On the same day, within a few minutes, you sent a message, “Just wanted to see you in a selfie”, and then another message a short time later, “Why can’t you take a selfie if she isn’t there?”, later, “bored too and I want to see you LOL”, followed by an image of you in bed, shirtless and pouting.
I have no doubt whatsoever that you were encouraging the child to send you images when the mother was not present. There are other images of your bare chest, with you lying bed; in the shower, pouting; in the bed, shirtless, with the covers pulled down to your waist; and later the same day, a message “You in bed?”. Sixth of November, again in bed, shirtless, with your left arm propped against your head; shirtless with your left arm in the air.
On 9 November, at 7.37am, you sent a message, “I was stretching and the bed sheet slipped down”, two minutes later you sent an image of you in bed, naked, with the bed sheet pulled down very low, only just covering the groin area. This was an escalation and it only came to a halt because the child’s mother ceased responding. As I said, she is to be commended for her vigilance and her foresight.
In March 2023, your home was searched but no indecent or illicit material was located. During a police interview, you were co-operative and made full admissions about your knowledge of the child and her mother and the use of Snapchat. You told police you could not remember what was sent or received between 1 and 15 November. You might not have remembered the full details, but I have no doubt that you, at that time, would have remembered the general nature of the communications and the images.
As to matters personal to you, I have been provided with very little information about your background. You are now aged 30. To your credit you have no prior convictions whatsoever, and after some years of study, you qualified as a radiographer which lead to you eventually working at a hospital in Tasmania. That career has been destroyed by your own actions and you have lost the right to work with vulnerable persons. Now, you work interstate on a fruit farm earning approximately $45,000 per annum. You have had that employment for 18 months. It is ongoing and at least on your employers is aware of your current situation.
KJD, every crime of this type, involving a child, is a serious crime. The community is deeply distressed by crimes such as yours which are, unfortunately, all too common. General deterrence, that is, deterring others who are minded to engage in this type of behaviour, is an important factor in sentencing. So too is personal deterrence, that is, deterring you from offending again. You have chosen not to put any material before me to explain your criminal record. There is nothing in the material to help me understand your motivation. While you have pleaded guilty and you are entitled to the benefit of the plea, I am far from persuaded that you are genuinely remorseful. I am also far from persuaded that you possess a full insight into the seriousness of your offending, and the damage that this type of offending can cause to young children. There is no information before me to suggest that this particular child was damaged in any way, but that is the pure good fortune and from the good work of the child’s mother.
In my view, personal deterrence remains a factor in sentencing you and I am not satisfied that you do not pose a risk of committing a reportable offence in the future. I direct that your name be placed on the Community Protection Offender Register and that you comply with reporting obligations under the Act for a period of three years from today.
Having made those observations, I need to add this, while every crime of your type is a serious crime, as with all crimes, there is a scale of seriousness, some crimes are more aggravated than others. In your case, the offending messages were not communicated to the child. The messaging occurred over a short period of about seven days. The messages and images were not graphic in content. They were not explicitly indecent, for example, by showing genitals or other indecent images. From a combination of factors, in my view, while your offending was serious, it is at the lower end of the scale of seriousness for offending of this type.
There are two other matters of significance. First, you reached the age of 29 without getting into trouble with the law. You are entitled to credit for your prior good character which is a factor in mitigation. Secondly, you pleaded guilty. It was not an early plea and it was entered in the face of a very strong Crown case. I am unable, as I said, to view it as a sign of true remorse. It was merely a recognition of the inevitable result if you maintained your plea of not guilty, but nonetheless, I have made an allowance for your plea.
I am satisfied that no sentence other than a term of imprisonment is appropriate. Your Counsel did not suggest otherwise. However, I am also satisfied from a combination of circumstances to which I have referred, that is circumstances relating to your crime and matters personal to you, including your prior good character and plea, that they amount to exceptional circumstances, such that the appropriate course is to direct that you be released immediately upon entering into a recognisance release order.
I impose a sentence of imprisonment for nine months. I order your immediate release upon recognisance of $5,000 to comply with conditions which apply for a period of two years. In that period, you are to be under the supervision of a probation officer, that is, community correctional services, and a probation officer appointed under this order; you are to obey all reasonable directions of a probation officer and undertake such treatment or rehabilitation programme as the probation officer directs. You are to notify the probation officer of any change of address or employment within seven days of such change. You are to be of good behaviour and not commit any offence punishable by imprisonment. You are not to travel interstate or overseas without the written permission of a probation officer, and you are to report today to the office of correctional services in Cameron Street, Launceston.
Under s 16(f) of the Crimes Act, for a period of two years from today’s date, if you should breach the above order, you could be brought back to this Court to be re-sentenced or be made to serve the period of imprisonment imposed today.