STATE OF TASMANIA v ANDREI CHARLES LEE 20 MAY 2022
COMMENTS ON PASSING SENTENCE GEASON J
In February 2020 an officer of the South Australian Public Protection Branch was working in a covert operation targeted at detecting child exploitation offences online. This involved him creating covert accounts on a number of social media platforms. One of those platforms was a messenger application called KIK. On that service he purported to be a 15 year old female named Jess. KIK uses the internet to transmit and receive messages photos videos webpages and other content after a user registers a username. Users can search for specific words or terms and then join related public groups. Public groups are searchable to any user and if there is room in the group anyone can join. As a member of a group all members are visible which allows the option to break out into a private chat with particular members of that group.
You had an account on KIK and you began messaging the person posing as Jess at approximately 4pm on 16 February 2020, after you both joined a group called Adelaide Teens. The conversation commenced with you asking her if she was a teen. She said she was 15. You said that you liked teens and that you were 44. You said that you hoped that that was okay and you told her that you were “well hung” if that made up for your age. After about thirty minutes you asked Jess if she was into teen porn and whether she would like some videos. She said that she had never seen any. You proceeded to send four pornographic videos depicting adult sexual intercourse, a strip tease, oral sex, sexual intercourse between two male adults and a female, and a male and a female engaged in sexual intercourse, where the female’s age was not determinable. You told Jess that the females in each video looked about her age and suggested to her that as she was getting to that age she might also show herself. You then commenced sending a number of real-time images of your penis during different stages of arousal, as well as a real-time video of you masturbating. She said that she had not seen a real penis before. She told you that her “head was spinning” and that her mother was in the room next door. You told her not to let her see, “I beg you, I would be in jail for ever; I am putting my life of freedom in your hands”.
You continued to send images of your penis as well as a further video of two adults engaged in sexual intercourse. You asked Jess if she had small breasts, and when she said she did and described herself as also having a “small bottom” you said she sounded perfect. You sent two photos and a video showing you masturbating, with pre-ejaculate visible on your penis. By the third hour of the conversation you asked her to describe her anatomy, and you replied that you would love to “lick her vagina if she would let you”. You sent another photo of your erect penis and asked her to tell you if she was “wet”. She told you that she had to do some chores and you said “don’t leave your phone behind take it with you… stick with me Jess I will teach and show you everything if you would like me to”. You next sent a video of an adult female in a bath running water on her vagina and asked her if she had ever done that. She said that she had not. She said that she had only kissed and touched on the “outside” with her ex-boyfriend. You said to her that you wished you could be her “first” and said that you would “love to make her happy”. You sent another two videos showing you masturbating, and asked if she would “like to stroke it”. You then asked if you flew to Adelaide for a weekend and got a motel would she come and see you. You sent a number of messages describing how you would take her virginity and you begged her to let you be “her first”. You then sent a video of a female child masturbating and rubbing her genitalia against a toy. The child appears to be about 14 years of age and the State asserts, and I accept, that this video constitutes child exploitation material. You sent a further message accompanying that video saying “this is hot”. You sent a number of further messages discussing how you would make a plan to meet her and asked her if she would send you a picture of her left breast before she went to asleep. Later in the conversation you asked her if she masturbated, and you gave her instructions about how to do so.
You were provided with a covert mobile phone number by the investigating police officer, over which you could talk to Jess. You told Jess you needed to go to the service station to buy some credit, an action that was captured on CCTV at the Brighton BP service station. You then began texting that covert mobile phone number from your phone. Until 21 February 2020 you continued to maintain an online relationship with Jess messaging her regularly on KIK. You asked her if she had been exploring her body and, asked if she would change her last name on her KIK profile to Lee, your surname, and you sent her a number of photographs of yourself and your penis and told her you could not wait to rub your penis over her breasts.
The matter was referred by South Australia Police to Tasmania police via the joint anti- exploitation team. On 26 February 2020 a search warrant was executed at your address. The search was conducted in your presence and you produced your mobile phone. You said that it was your only means of online communication. It was seized for examination. The bathroom at your house was photographed and it resembled the background of the images and videos that you had sent on KIK to Jess.
You were arrested and participated in an interview under caution.
You said, amongst other things that you were aware of what KIK is, that you had used it for two months, and that your profile name on that service is Andrei Lee. You said that you are the only person who uses the account, and that you had searched the term “porn” to join groups. You admitted that you were in porn or role-play groups on the KIK application. You admitted you sent pornographic videos to groups and that you probably messaged five people privately on that service. You said that you would send them naked pictures of yourself. You said that you did not know that Jess was 15; that you were role playing with her and that you had got it deeply wrong. You said that you are not in any groups on KIK that mention teens; that you did not send any videos to Jess; that there should not be a video sent from you to her of a child masturbating; that it was wrong to send such material; that you sometimes download images off the KIK service. You said that you were closing the account and that you had learnt your lesson. You said that you were manic bipolar and had high sex drive, that you had no friends and no social life.
You were not told during that interview that Jess was in fact an undercover police officer.
On the 16 March 2020 using a KIK profile with the name Tony Hall you made contact with Jess again and sent her a copy of your police bail document and the search warrant and property seizure receipt. Amongst other things you said to her:
- That Andrei (you) got charged by police talking for to her
- That you would go to jail and that you trusted her. You suggested to her that she tell police that it was a mistake and that you are over 17; you suggested she call Hobart police and tell them she was over 17 and it was just a role playing fantasy; you told her that she should do that tomorrow and tell them it was a big misunderstanding and telling her to say that she wanted all the charges dropped. You said that you were in jail now because she did not tell the truth and that she had led you on and that she was as much to blame as you were.
In relation to the allegation of possessing exploitation material and bestiality product, a forensic examination of your phone revealed a large amount of pornographic material. Sixty seven photographs and images found on your mobile phone constituted child exploitation material or a bestiality product: seven were in category one, which includes depiction of no sexual activity but nudity and sexually suggestive posing; five videos and 11 images in category two, which is a category depicting non penetrative sexual activity between children or solo masturbation by a child; one image in category three, which depicts non penetrative sexual activity between adults and children including mutual masturbation and non-penetrative sexual activity; eight videos in category four which depicts penetrative sexual activity between adults or children including intercourse and oral sex; 22 images and 10 videos depicting bestiality, in category five. Three images were not illegal material, but believed to form part of the series contained in the child exploitation material.
You are now 46 years of age and you have two children to a former partner. You have no contact with these children. You had another relationship with a partner which lasted 17 years but produced no children. That ended due to your ongoing drug use. Your most recent relationship commenced about 12 months ago, but after the commission of these offences you were not able to attend your partner’s residence as her daughter was also residing at the house. You have separated since. You are presently single. I am told that you are presently accommodated at Bethlehem House.
You apparently enjoy spending time participating in the Freedom Arts program in Moonah, and participating in the peace education program which focuses on things such as self- awareness. You apparently have no social supports or close friends.
You have previously used methamphetamine, commencing when you were aged 36 and becoming an addiction. You apparently stopped using Ice about 15 months ago. Apparently your mother’s death was a “wake-up call” for you to change your anti-social behaviour. You are currently supported under Anglicare’s drug and alcohol treatment service. That service reports that you have been abstinent for over 12 months now, and it identifies you having used motivation and other strategies to maintain that situation. That is a positive development and your progress in that regard should be encouraged.
You are in receipt of a job seeker allowance a large proportion of which is spent on your accommodation costs.
You have over $3,000 in outstanding fines.
In relation to the offending you deny an attraction to pubescent girls though the report adverts to the fact that a previous relationship in which you were involved, commenced when the other party was aged 14.
Ultimately, by reason of your plea of guilty you accept that you engaged in all of this conduct on the basis asserted by the State. I have formed the view on the basis of your plea of guilty and the material involved in your offending that your behaviour evidences an interest in females in the pubescent category. I consider no other inference to be reasonably open. It is trite to say that you are to be punished for the conduct in which you engaged, and not on the basis of any particular sexual predilection. Those matters are relevant to the protective orders the Court is required to consider under the Community Protection Offender Reporting Act 2005. As an order will be made under that Act, I consider that that issue is adequately addressed thereby, associated as it will be, with an appropriate community based order. Offending such as yours is serious. As far as you knew, you were engaging with a minor. That was your intention and you sought your own sexual gratification from her, without regard to the harm it would cause. Harm to a child was unimportant to you. All that mattered was that your drive for gratification could be met. That was something which prompted you to explore the possibility of an actual physical engagement with this child. Your behaviour is the type of conduct which encourages child exploitation, with untold harm to children. Strong punishment is therefore required.
You have compounded the seriousness of that conduct by your attempts to have the person you believed to be Jess, drop the charges, and have her lie in order to do so. Pressure upon the victims of such crimes in order to procure such outcome is an extremely serious matter in its own right, and unless it is deterred, it will undermine the primary means through which the community seeks to eliminate such behaviour, which is criminal prosecution and punishment.
The punishment the Court imposes must also recognise that behaviour such as yours exposes children to the risk of serious mental and physical harm. It encourages behaviour which places children at risk of predatory conduct. The offences relating to possession of child exploitation material have the same effect, creating a market for the abuse of children. A sentence that gives significant weight to general deterrence is therefore required. Such sentence will hopefully have a powerful personal deterrent effect too, serving to deter you from engaging in similar conduct in the future.
I have regard to the material presented to the Court, including the pre-sentence report and an Anglicare report.
You appear before me without prior conviction for similar offending. By your early plea of guilty, you have saved the State the cost of a trial. I discount your penalty by 15% in consequence of that benefit.
I intend to impose a term of imprisonment upon you. Such sentence properly recognises the gravity of your behaviour, and serves to satisfy the sentencing considerations, which I have identified, particularly general deterrence.
On the charge of grooming with intent to procure a young person for sexual abuse, I sentence you to 12 months’ imprisonment.
On the charge of grooming with intent to expose a child or young person to indecent material, I sentence you to four months’ imprisonment to run concurrently with the sentence I have just imposed. On the charge of distributing child exploitation material, I sentence you to four month’s imprisonment, which is also to run concurrently with the sentence on count 1. On the charge of possessing child exploitation material, I sentence you to four months’ imprisonment to run concurrently with the sentence on count 1.
On count 5, the charge of perverting justice, that crime is, as I have said, very serious, and it was intended to pressure someone you believed to be a child, to drop the charges. I would have sentenced you to nine months’ imprisonment cumulative to the main sentence for that offence. I intend to reduce it to six months, cumulative to the 12 months’ sentence I have imposed in order to take account of the totality principal.
In respect of Complaint 5324/2020, I sentence you to two months’ imprisonment to run concurrently with the sentences that I have imposed. That concurrency also reflects the need to have regard to the totality principal.
I turn to consider whether the sentence should be suspended in whole or in part. I have regard to the matters put in mitigation, because they are relevant to this question. Your conduct was serious, as I have said, and the social harm caused by such behaviour warrants a penalty which reflects that seriousness. A suspended sentence is capable of fulfilling that sentencing consideration, but in my view having regard to the gravity of your behaviour, and your attempts to influence the complainant to drop the charges, the sentence requires a strong punitive component, which can only be achieved by requiring you to serve an actual term of imprisonment. However, in recognition of the fact that you have made progress in relation to your drug and alcohol addiction, and the suggestion, which is accepted, that alcohol and drug use contributed to your offending, I will suspend part of the sentence. The effect of the sentence that I have imposed today is that you are to serve 18 months’ imprisonment. I have decided to suspend six months of that sentence on condition that you commit no offence punishable by a term of imprisonment for a period of three years. You will, therefore, serve 12 months’ incarceration. My intention in suspending of the sentence, is to encourage your rehabilitation.
I further order that you be subject to a supervision order under the Community Corrections Act. As well as the core conditions, that order will include a requirement that you participate in support programs with respect to education, employment and substance abuse issues. I accept the recommendation of the probation officer that you will benefit from structured support in relation to social contacts risks. I direct that you are to follow the directions of the probation and parole officer with respect to those matters.
I previously made the orders sought by the State in relation to forfeiture of seized materials.
In relation to the Community Protection Offender Reporting Act 2005 I order that you be subject to such order for a period of 12 years, noting that count 1 falls within a class 3 offence; count 2 is a class 1 offence; count 3 is a class 2 offence and count 4 is a class 1 offence, meaning that s.24 (3)(b)(iii) of that Act applies.
The effect of the sentence that I have imposed upon you today Mr Lee, is that you are to serve a period of 12 months in custody. You will be subject to a Community Corrections Order upon your release and you will be on the register for a period of 12 years.