Adamson v The Queen
[2015] VSCA 194
•28 July 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0128
| SHAUN ADAMSON | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WARREN CJ and REDLICH and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 18 May 2015 |
| DATE OF JUDGMENT: | 28 July 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 194 |
| JUDGMENT APPEALED FROM: | DPP v Adamson (Unreported, County Court of Victoria, Judge Ryan, 16 May 2014) |
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CRIMINAL LAW – Sentence – Use of Internet to groom or procure child for sexual act –Criminal Code (Cth) ss 474.26, 474.27 – Use of Internet to procure child for or produce child pornography – Crimes Act 1958 ss 68, 69 – Sentencing judge found all victims suffered harm – Whether a presumption of harm to child victims arises in respect of cybersex offences – Persuasive presumption – Clarkson v The Queen (2011) 32 VR 361, considered – Cooper v The Queen [2012] VSCA 32, distinguished – Harm need not be immediate or manifest – Nature of acts which permit assumption of harm – Presumption applies to pornography offences where victims under 18 years.
CRIMINAL LAW – Appeal – Sentence – Harm conceded at first instance – Argument precluded on appeal – Romero v The Queen (2011) 32 VR 486, applied – Crown may have adduced evidence at first instance if harm in issue – Appeal raising specific error dismissed.
CRIMINAL LAW – Sentence – First indictment containing 28 charges of using Internet to commit sexual offences involving children – Term of imprisonment of three years and nine months – Second indictment containing two charges of blackmail and one of conspiracy to blackmail – Term of imprisonment of five years and seven months – Total effective sentence of six years and seven months – Whether error as to appellant’s moral culpability – Individual sentences on first indictment involving use of Internet lenient – Total effective sentence well within range – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A S Dickenson | Tribeca Legal |
| For the Crown | Mr D A Trapnell QC with Ms A Hassan | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
| For the Intervener | Mr R Bromwich SC with Ms K Breckweg | Director of Public Prosecutions (Cth) |
WARREN CJ
REDLICH JA
WEINBERG JA:
On 14 April 2014, the appellant pleaded guilty in the County Court to charges arising from two indictments. On the first indictment, he was sentenced on multiple charges of using a carriage service to procure a person under 16 years of age for sexual activity, using a carriage service to groom a person under 16 years of age for sexual activity and using a carriage service to transmit indecent communications to a person under 16 years of age. He was also sentenced on that indictment on charges of producing child pornography, procuring a minor for child pornography, and possessing child pornography.
All of the offences on the first indictment were committed via the internet. Leave to appeal the sentences on the first indictment was granted by Redlich JA on the sole ground that the sentencing judge ‘erred [in] finding that there was harm to each child victim as a factor of aggravation’. The issue arising under this ground is whether harm to child victims is to be presumed with respect to sexual offences committed via the internet (described during the appeal as ‘cybersex’ offences).
On the second indictment, the appellant was sentenced on one charge of conspiracy to commit blackmail, and two charges of blackmail. Redlich JA referred the question of leave to the bench hearing the appeal on two further proposed grounds, each of which relates to the sentences on both indictments. As amended, those proposed grounds are as follows:
2.That the Learned Sentencing Judge erred in that he failed to give any allowance for the reduction in the applicant’s moral culpability.
3. That the sentence was manifestly excessive in all the circumstances.
Particulars of manifest excess
The Learned Sentencing Judge failed to give appropriate weight to:
a.The reduction in moral culpability;
b.The cooperation of the applicant;
c.The steps taken by the applicant to minimise the harm to a number of victims;
d.The objective gravity of the Internet offences;
e.Prospects of rehabilitation;
f.The extra curial punishment suffered by the applicant;
The Learned Sentencing Judge gave inappropriate weight to:
g.Specific Deterrence.
4 The appellant was sentenced as follows on each indictment:
First indictment — D12466350
Count No Count Statutory Maximum Sentence Cumulation 1 Use carriage service to procure child under 16 for sexual act
[Criminal Code (Cth) s 474.26(1)]15 years 2 years Commence 2 months prior to the expiration of the State non-parole period 2 Use carriage service to procure child under 16 for sexual act
[Criminal Code (Cth) s 474.26(1)]15 years 2 years Commence 2 months prior to the expiration of the State non-parole period 3 Use carriage service to procure child under 16 for sexual act
[Criminal Code (Cth) s 474.26(1)]15 years 3 years Commence 2 months prior to the expiration of the State non-parole period 4 Use carriage service to procure child under 16 for sexual act
[Criminal Code (Cth) s 474.26(1)]15 years 3 years Commence 2 months prior to the expiration of the State non-parole period 5 Procure a minor for child pornography
[Crimes Act 1958 s 69]10 years 1 year Nil 6 Use carriage service to procure child under 16 for sexual act
[Criminal Code (Cth) s 474.26(1)]15 years 2 years Commence 2 months prior to the expiration of the State non-parole period 7 Produce child pornography
[Crimes Act 1958 s 68(1)]10 years 9 months Nil 8 Procure a minor for child pornography
[Crimes Act 1958 s 69]10 years 1 year Nil Count No Count Statutory Maximum Sentence Cumulation 9 Procure a minor for child pornography
[Crimes Act 1958 s 69]10 years 1 year Nil 10 Procure a minor for child pornography
[Crimes Act 1958 s 69]10 years 1 year Nil 11 Procure a minor for child pornography
[Crimes Act 1958 s 69]10 years 2 years Nil 12 Use carriage service to groom child under 16 for sexual act
[Criminal Code (Cth) s 474.27(1)]12 years 1 year Commence 18 months prior to the expiration of the sentences imposed on charges 3, 4, 17 and 23 on this indictment 13 Use carriage service to groom child under 16 for sexual act
[Criminal Code (Cth) s 474.27(1)]12 years 2 years Commence 18 months prior to the expiration of the sentences imposed on charges 3, 4, 17 and 23 on this indictment 14 Procure a minor for child pornography
[Crimes Act 1958 s 69]10 years 2 years 6 months on base (second indictment) 15 Produce child pornography
[Crimes Act 1958 s 68(1)]10 years 9 months Nil 16 Use carriage service to transmit indecent communications to a child under 16
[Criminal Code (Cth) s 474.27A]7 years 1 year Commence 9 months prior to the expiration of the sentences imposed on charge 13 and 22 (this indictment) 17 Use carriage service to procure child under 16 for sexual act
[Criminal Code (Cth) s 474.26(1)]15 years 3 years Commence 2 months prior to the expiration of the State non-parole period 18 Use carriage service to groom child under 16 for sexual act
[Criminal Code (Cth) s 474.27(1)]12 years 1 year Commence 18 months prior to the expiration of the sentences imposed on charges 3, 4, 17 and 23 (first indictment) 19 Use carriage service to groom child under 16 for sexual act
[Criminal Code (Cth) s 474.27(1)]12 years 18 months Commence 18 months prior to the expiration of the sentences imposed on charges 3, 4, 17 and 23 (first indictment) 20 Use carriage service to groom child under 16 for sexual act
[Criminal Code (Cth) s 474.27(1)]12 years 1 year Commence 18 months prior to the expiration of the sentences imposed on charges 3, 4, 17 and 23 (first indictment) Count No Count Statutory Maximum Sentence Cumulation 21 Use carriage service to transmit indecent communications to a child under 16
[Criminal Code (Cth) s 474.27A]7 years 1 year Commence 9 months prior to the expiration of the sentences imposed on charge 13 and 22 (this indictment) 22 Use carriage service to groom child under 16 for sexual act
[Criminal Code (Cth) s 474.27(1)]12 years 2 years Commence 18 months prior to the expiration of the sentences imposed on charges 3, 4, 17 and 23 (first indictment) 23 Use carriage service to procure child under 16 for sexual act
[Criminal Code (Cth) s 474.26(1)]15 years 3 years Commence 2 months prior to the expiration of the State non-parole period 24 Produce child pornography
[Crimes Act 1958 s 68(1)]10 years 18 months 4 months on base (second indictment) 25 Use carriage service to procure child under 16 for sexual act
[Criminal Code (Cth) s 474.26(1)]15 years 2 years Commence 2 months prior to the expiration of the State non-parole period 26 Use carriage service to procure child under 16 for sexual act
[Criminal Code (Cth) s 474.26(1)]15 years 2 years Commence 2 months prior to the expiration of the State non-parole period 27 Use carriage service to procure child under 16 for sexual act
[Criminal Code (Cth) s 474.26(1)]15 years 2 years Commence 2 months prior to the expiration of the State non-parole period 28 Possess child pornography
[Crimes Act 1958 s 70]10 years 1 year 3 months on base (second indictment) Second indictment — C1309010
Count No Count Statutory Maximum Sentence Cumulation 1 Conspiracy to blackmail
[Crimes Act 1958 s 321(1)]15 years 3 years Base 2 Blackmail
[Crimes Act 1958 s 87(1)]15 years 3 years 12 months on base 3 Blackmail
[Crimes Act 1958 s 87(1)]15 years 3 years 6 months on base Total effective sentence (State offences) 5 years and 7 months’ imprisonment Non-parole period (State) 3 years Total effective sentence (Cth offences) 3 years and 9 months’ imprisonment Non-parole period (Cth) 1 year, to commence 2 months prior to the expiration of the State non-parole period Intended total effective sentence 6 years and 7 months’ imprisonment Intended non-parole period 3 years and 10 months Section 6AAA statement 10 years’ imprisonment with a non-parole period of 7 years
As charges 1–4, 6, 12, 13, 16–23 and 25–27 arising out of the first indictment were Commonwealth offences, Redlich JA invited the Commonwealth Director of Public Prosecutions (‘Commonwealth Director’) to file submissions on the appeal. The Commonwealth Director filed submissions and appeared at the hearing of the appeal, in the capacity of an intervener.
For the reasons that follow, we would dismiss the appeal on ground 1 and refuse the application for leave to appeal on grounds 2 and 3.
Circumstances of the offending
The circumstances of the offending are set out in the summary of prosecution opening, exhibited on the plea. The charges on both indictments primarily arose from conduct by the appellant whereby he engaged in communications with prospective victims via the internet using a false persona. The offending the subject of the first indictment took place between 1 March and 20 August 2012. The offending the subject of the second indictment took place between 22 April and 20 August 2012. The offending ceased upon the appellant’s arrest on 20 August 2012.
As to the details of the offending, it is convenient to extract the sentencing judge’s summary:
The facts that support Indictment C1309010 are contained in the Summary of Prosecution Opening contained in Exhibit A. In summary, in respect to Charge 1, during online conversations with the victims the subject of Charges 4 and 24 in Indictment D12466350, you obtained their consent to engage in on-line communications with prospective victims who you described as ‘dirty pedos’. You instructed your co-conspirators as to how your scheme would work and that large sums of money would be obtained by blackmailing people. (See Summary of Prosecution Opening paragraphs 44 to 46.)
Charge 2 led to your arrest and prosecution. You blackmailed an innocent victim by using video footage of a man you believed to be your victim masturbating on webcam to a 14 year old girl. In Appendix A to the summary of Crown opening, an email to your innocent victim threatened to disclose his alleged conduct to his work colleagues, the folk at Auskick and his family and by doing so you further threatened that the innocent victim would lose everything.
Your victim went to the police and by the subterfuge of the police taking on the role of the victim and appearing to comply with your demands that are set out in Appendix B to the Summary of Prosecution Opening, you were arrested on 20 August 2012 having collected what you believed to be $10,000 extorted from your victim. You were charged later that day. When interviewed under caution on 19 October 2012 you answered ‘no comment’ to questions put to you by police. On the following day you were charged in respect of the conduct that founds Charges 1 and 3. On 20 August 2012 a search warrant executed at your home resulted in your computer being seized. An analysis of the contents of your computer led to the other charges that you face.
In his Victim Impact Statement, the victim of Charge 2 writes about the understandable significant psychological impact that your conduct had upon him.
In order to commit Charge 3, you used the persona of a 13 year old school girl, which you had invented during the commission of Charge 1, to contact your victim in April 2012 via ‘chatroulette’. You persuaded your victim to masturbate whilst on-line with you, he believing that your alter ego was doing the same. Eventually the victim sent you his photograph. You arranged to meet with him on 21 July 2012. At the meeting place you had the victim under surveillance and photographed him. On 29 July 2012, you sent to the victim Appendix F to the summary of Crown opening a document entitled ‘This pedophile is waiting to meet a 13 yo girl’. Thereafter you demanded $3,000 cash from your victim. Your victim deleted your emails and ceased any contact with your alter ego.
As a result of the police investigation, your victim was prosecuted for procuring and grooming offences and was placed on a s 21B bond to be of good behaviour, which included a condition that he undergo psychological treatment. In his Victim Impact Statement your victim expressed relief that this aspect of his life was behind him and that with psychological treatment he has been able to move on with his life. However, the experience was one that caused him great embarrassment and that impacted adversely on his friends and family.
These matters were resolved on 22 April 2013 at committal. You pleaded guilty and offered to co-operate with police in respect to what might be referred to as the internet offences.
The facts that support the charges in indictment D12466350 are set out in the prosecution opening that is part of Exhibit A, it is a document of 77 pages in length. Generally but not always you adopted the persona of teenage boys, you then used ‘chatroulette’ to contact girls under the age of 16 years. Once in conversation with the girls, you manipulated them so that they engaged in sexually explicit conversations and/or acts which you observed via webcam and which you recorded.
I will summarise your offending by reference to the six types of charge on the indictment. In respect to the 10 charges of use carriage service to procure a person under 16 years of age for sexual activity, your victims ranged in age from 13 to 15 years. They lived in places as far afield as the UK, the USA, Canada, Poland and Australia. Some of your victims were particularly vulnerable having suffered sexual abuse in the past as well as having self-harmed (see Charge 23), having self-harmed in the past (see Charges 3 and 17) and having been admitted to a psychiatric hospital after attempting suicide (see Charge 4).
You instructed your victims on how to masturbate, introducing your victims to the use of instruments like hairbrush handles. You instructed your victims on how to use a webcam so that you might get a better view of your victims for your sexual gratification and for the purpose of recording them. You engaged in mutual acts of masturbation with your victims using video footage of your teenage ‘avatar’ to maintain your subterfuge. When not satisfied with your victims’ level of compliance, you abused them, appearing to lose your temper in order to get what you wanted. I should note at this stage that Charges 2, 6, 25, 26 and 27 are founded on your admissions, a subject to which I shall return later.
The six charges, of use carriage service to groom a person under 16 years of age for sexual activity, relate to victims who were aged between 14 and 15 years and who lived in Serbia, the USA, the UK and the Netherlands. Your conduct was characterised by conversations designed to inveigle all your victims into sexual conduct. Again, when unable to get your way, from time to time, you feigned or actually lost your temper, attempting to persuade your victims to go further than they wanted to (see Charge 22).
Charges 16 and 21, use carriage service to transmit indecent communications to a person under 16 years of age, related to a 13 year old girl living in England and a 14 year old girl living in Queensland. The girl from Queensland was a friend of the victim, the subject of Charge 17 on this indictment. Your conversations with the girl from Queensland concerned the prospect of having sex with the victim of Charge 17. The purpose of your conversation with the victim, the subject of Charge 21, appears to be to ingratiate yourself to both girls in order to further your sexual gratification.
The first class of State offence is six charges of procuring a minor for child pornography. The victims were aged between 13 and 16 years. Your victims lived in the United Kingdom, Australia, Canada, France and the USA. You recorded them exposing their breasts and masturbating. Charges 5, 8, 9 and 10 are based solely on your admissions.
Charges 7, 15 and 24 are charges of production of child pornography. Your victims were aged between 13 and 16 years and lived in Australia, the USA and the UK. You recorded images of their breasts and genitalia and in respect of the victim the subject of Charge 24, who was one of the children involved by you in respect of Charge 1 on indictment C1309010, you recorded her masturbating as well as taking images of her genitalia. Charges 7 and 15 are based on your admissions.
The final charge, Charge 25, possess child pornography, relates to images found on your computer by police. These images are not of the victims the subject of the other charges for which you fall to be sentenced. Charts contained in Exhibit A which classify the nature of the images found on your computer were amended to reflect this fact. I was shown a sample of the images relied upon to found this charge. These images include pictures of a young girl’s labia being manipulated to reveal their vaginal orifice, girls performing cunnilingus on one another, and images of girls with objects near to or penetrating their vaginas.[1]
[1]DPP v Adamson (Unreported, County Court of Victoria, Judge Ryan, 16 May 2014) [2]–[16] (‘Reasons’).
Of particular importance for the purposes of this appeal are the ages of the victims in respect of the charges contained in the first indictment. The ages and locations of the victims, so far as could be established, are set out in the following table, drawn from the summary of prosecution opening:
Count No Count Age of victim Location of victim 1 Use carriage service to procure child under 16 for sexual act 15 England 2 Use carriage service to procure child under 16 for sexual act 13 England 3 Use carriage service to procure child under 16 for sexual act 13 USA 4 Use carriage service to procure child under 16 for sexual act 15 Poland 5 Procure a minor for child pornography 13 or 14 United Kingdom 6 Use carriage service to procure child under 16 for sexual act 13 Canada 7 Produce child pornography 13 or 14 Albury, NSW 8 Procure a minor for child pornography 16 Austria 9 Procure a minor for child pornography 16 Canada 10 Procure a minor for child pornography 17 France 11 Procure a minor for child pornography 16 USA 12 Use carriage service to groom child under 16 for sexual act 14 Serbia 13 Use carriage service to groom child under 16 for sexual act 15 England 14 Procure a minor for child pornography 16 USA 15 Produce child pornography 15 to 16 USA 16 Use carriage service to transmit indecent communications to a child under 16 13 England 17 Use carriage service to procure child under 16 for sexual act 14 Brisbane, QLD 18 Use carriage service to groom child under 16 for sexual act 15 USA
Count No Count Age of victim Location of victim 19 Use carriage service to groom child under 16 for sexual act 15 Netherlands 20 Use carriage service to groom child under 16 for sexual act 15 Netherlands 21 Use carriage service to transmit indecent communications to a child under 16 14 Queensland 22 Use carriage service to groom child under 16 for sexual act 14 USA 23 Use carriage service to procure child under 16 for sexual act 15 Queensland 24 Produce child pornography 16 England 25 Use carriage service to procure child under 16 for sexual act 15 USA 26 Use carriage service to procure child under 16 for sexual act 14 Canada 27 Use carriage service to procure child under 16 for sexual act 15 Ballarat, VIC 28 Possess child pornography No direct victim The sentences imposed
In passing sentence, the judge gave a thorough account of the appellant’s personal circumstances and the mitigating factors that he could call in aid. The judge noted that the appellant had no prior convictions and that he had voluntarily undergone interviews with investigators in which he made ‘full and frank admissions’. Many of the charges on the first indictment were based wholly or substantially on those admissions.[2] The judge also recognised that the admissions, as well as the early pleas of guilty and cooperation with police, demonstrated his remorse, and that the pleas had utilitarian value.[3] The judge referred to three medical reports in which the appellant was described as insecure, ‘predisposed to isolation’ and impulsive.[4] The judge also recognised that the appellant’s use of the anti-obesity drug Duromine had contributed to his offending.[5] We shall consider this aspect of the sentencing remarks in more depth when dealing with grounds 2 and 3. Finally, the judge found that the appellant had sought professional help, had changed his lifestyle and had the unqualified support of his family, leading to the conclusion that his prospects for rehabilitation were good.[6] His Honour noted however that ‘unless you maintain treatment for your inadequate personality and lack of impulse control … your risk of re-offending is of concern’.[7]
[2]Ibid [18].
[3]Ibid [19].
[4]Ibid [22]–[27].
[5]Ibid [24]–[26].
[6]Ibid [35].
[7]Ibid [28].
The impugned sentencing remarks concerning harm to the victims
In describing the appellant’s offending, the judge said the following:
The offending reflected in indictment D12466350 is grave and demonstrates that there are no national boundaries when it comes to the sexual exploitation of children. By your actions you have harmed each of your child victims.[8]
[8]Ibid [17] (emphasis added).
His Honour later found that the appellant’s offending on the first indictment was ‘self-centred, manipulative, exploitative, harmful to your victims and morally corrupt’.[9] He described the offending on both indictments as serious examples of the offences and concluded that general deterrence and denunciation should be the principal sentencing factors.[10]
[9]Ibid [26] (emphasis added).
[10]Ibid [34].
Presumption of harm — principles
The summary of prosecution opening particularised the facts underlying each of the offences on the first indictment. Those facts were drawn from, inter alia, the contents of the appellant’s home computer, and his admissions to police. In respect of some offences, there was a great deal of detail about the scope of the conduct the subject of the offence. The evidence included transcripts of the online ‘chats’ between the appellant and the victims. In respect of other offences, there was very little detail concerning the offending.
On the appeal the appellant accepted that there was evidence of harm with respect to 11 of the 26 victims of the appellant’s offending.[11] In some of those instances there was explicit evidence of the harm that had resulted, whilst in the others it was conceded that it could be inferred beyond reasonable doubt from the nature of the conduct that harm must have resulted.[12] In the case of the remaining 15 victims the appellant submitted that it was not open to the sentencing judge to conclude that they had suffered any harm.
[11]This included expressions of regret, from which the appellant concedes harm may be inferred.
[12]R v Storey [1998] 1 VR 359.
The appellant sought to distinguish this Court’s decision in Clarkson v The Queen,[13] which stated that there was a presumption of harm in respect of child victims. The appellant argued that this presumption did not arise in respect of ‘cybersex’ offending,[14] as opposed to the ‘in person’ offences which were in issue in Clarkson. He contended that sexual offences committed with a child via the medium of the internet were fundamentally distinct from sexual offences constituted by physical acts done to the person of the child, or in the child’s physical presence, where a presumption of harm to the victim did arise. The appellant argued that the approach of this Court in Cooper v The Queen[15] should be preferred to that adopted in Clarkson, and that any presumption of harm should be restricted to ‘in person’ offences. The appellant further contended that a presumption of harm should not be made where the victim was 16 or more years old, or where the acts the subject of the charge did not include masturbation or nudity.
[13](2011) 32 VR 361 (‘Clarkson’).
[14]The appellant defined ‘cybersex offences’ in his written case as including the offences of using a carriage service to procure a person under 16 years to engage in sexual activity (s 474.26(1) of the Criminal Code (Cth)), using a carriage service to groom a person under 16 years of age (s 474.27(1) of the Criminal Code (Cth)) and knowingly possessing child pornography (s 70 of the Crimes Act 1956). For convenience we will adopt that terminology in these reasons to refer to all offences contained in the first indictment.
[15][2012] VSCA 32 (‘Cooper’).
For the reasons that follow, we reject each of these contentions.
The approach of the legislature to sexual activity with children
In Clarkson, the two appellants had pleaded guilty to charges concerning sexual offences against children under the age of 16. The first appellant was convicted of four charges of sexual penetration of a child under 16 and one charge of wilfully committing indecent acts with or in the presence of the same child. The victim of his offending was approaching her fifteenth birthday. The second appellant was convicted of one charge of committing an indecent act in the presence of a child under 16. The victim was his 12 year old stepdaughter. The appellants appealed against their sentences, seeking to rely on the victims’ consent in mitigation. The Court, comprising five judges, concluded that there was a statutory presumption of harm for offences in respect of children:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[16]
[16](2011) 32 VR 361, 364 [3].
The Court referred to the decisions of the Full Court of the Supreme Court of South Australia in R v Williams,[17] the Canadian Supreme Court in R v Hess,[18] and the House of Lords in R v G.[19] The Court quoted Baroness Hale in the latter case as follows:
But the message of [the provisions] is that any sort of act of sexual activity with a child under 16 is an offence, unless in the case of a child who has reached 13 the perpetrator reasonably believes that the child was aged 16 or over. There are many good policy reasons for the law to convey that message, not only to adults but also to the children themselves.
Section 5 reinforces that message. Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long term and serious harm, both physical and psychological, which premature sexual activity can do. And the harm which may be done by premature sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one.[20]
[17](1990) 53 SASR 253, 254.
[18][1990] 2 SCR 906, 948 [102]–[106] (McLachlin J).
[19][2009] 1 AC 92, 96–7 [3] (Lord Hoffman), 99 [14], 100–1 [21], 105–6 [36] (Lord Hope of Craighead), 107–8 [44]–[45], 108–9 [48]–[49] (Baroness Hale).
[20]Ibid 108–9 [48]–[49], quoted in Clarkson (2011) 32 VR 361, 370–1 [32].
The Court in Clarkson further said:
In its statutory context, the absolute prohibition on sexual activity with a child can be seen as having twin purposes. The first is to protect children from the harms caused by premature sexual activity and — to that end — to protect them from their own immaturity. On behalf of the community, Parliament has decided that those under 16 cannot meaningfully consent to sexual activity, even if subjectively attracted to the idea of participating in such activity. Secondly — and in order to advance the protective purpose — the prohibition is designed to deter those who might contemplate sexual activity with a person under 16.
…
What emerges clearly from these authorities is that absolute prohibitions on underage sexual activity are founded on a presumption of harm. Adopting Baroness Hale’s phrase, premature sexual activity is presumed to cause ‘long-term and serious harm, both physical and psychological’ to the child. Premature sexual activity, for this purpose, means activity before the age when the child can give meaningful consent. It is for this reason that the presumption of harm is unaffected by the presence of consent.[21]
[21](2011) 32 VR 361, 368 [26], 371 [33] (citations omitted).
The presumption that the prohibited conduct will cause harm to the child victim is thus founded on the rationale that children will be harmed by premature sexual experience of all kinds, and must be protected from themselves and the potential for immature judgment. The joint judgment in Clarkson recognised that an offender could rebut the statutory presumption of harm by demonstrating that the sexual activity did not have the harmful impact that the law presumed it to have. The presumption is, however, difficult to rebut:
On ordinary principles, it is open to an offender to seek to demonstrate, to the requisite standard of proof, that the sexual activity in question did not have (or is unlikely to have) the harmful impact on the victim which the law presumes it to have. Put another way, it is open to an offender to lead evidence to rebut the statutory presumption of harm. To the extent that such a submission relied on the consensual nature of the sexual activity, the court would draw on its assessment of the circumstances in which the consent came to be given, in particular the age difference between the offender and the victim, the nature of the relationship between them, and the circumstances in which the sexual activity was initiated.
We think it likely that such an attempt at rebutting the presumption would succeed only in very limited circumstances. For obvious reasons, a statement from the child victim would be unlikely to satisfy the court that no harm had been caused or that there would be no long-term consequences. Independent expert evidence to that effect would ordinarily be essential. Moreover, it would only be in a very clear case that such evidence would warrant a material reduction in sentence. The task of a sentencing court is difficult enough without having to deal with gradations of harm to a child victim, particularly when much of the assessment of harm involves predicting long-term consequences.[22]
The nature of the ‘presumption’ described in Clarkson
[22]Ibid 375 [52]–[53] (citation omitted).
Much of the argument at the oral hearing proceeded on a mistaken view of the nature of the presumption at issue. The use of the term ‘presumption’ can have many shades of meaning and in current judicial usage it is impossible to say of this or that kind of presumption that it has precisely this or that legal effect.[23] In his text, Cases and Materials on Evidence, J D Heydon, as he then was, proposed a taxonomy of presumptions. One kind of presumption he identified was a conclusion that follows a particular established fact — a conclusion which must be drawn unless and until the contrary is proved. He distinguished between conclusive and persuasive presumptions in these terms:
With conclusive presumptions, no evidence can rebut the truth of the presumed fact. With persuasive presumptions, the presumed fact can be disbelieved by the tribunal if sufficient evidence is adduced to persuade the tribunal of the non-existence of the presumed fact on the balance of probability (or in some cases beyond reasonable doubt).
…
A persuasive presumption (traditionally called a presumption of law) imposes a legal burden of disproof on the other side. … That is, the tribunal must make a finding that the presumed fact is true if insufficient rebutting evidence is adduced, and it must find the presumed fact to be untrue if sufficient rebutting evidence is adduced. The probative force of persuasive presumptions sometimes corresponds with the common sense inferences from the facts, and sometimes exceeds them.[24]
[23]Indeed, the differing uses of the term have given rise to confusion for some time: see Nigel Bridge, ‘Presumptions and Burdens’ (1949) 12 Modern Law Review 273, 273.
[24]J D Heydon, Cases and Materials on Evidence (Butterworths, 1975) 44, 45 (emphasis in original).
Accepting that ‘presumptions are essentially guides to probability, and presumptions vary in this respect, both intrinsically and on the facts of particular cases’,[25] within this taxonomy the ‘presumption of harm’ identified in Clarkson is a form of persuasive presumption. It is best understood as an assumption, ordinarily to be made, that children are harmed by sexual activity, with the onus of disproving that assumption resting upon the offender. In other words, the ‘presumption’ is a factual assumption arising by way of inference from the nature of the offence that sexual activity will cause harm to a child.
The application of the presumption of harm to cybersex offences
[25]Ibid 46.
The appellant argues that cybersex offences have a sufficiently different character to the ‘in person’ offences considered in Clarkson to render the reasoning supporting the application of the presumption inapplicable to cybersex. That submission cannot be sustained. The Victorian Director of Public Prosecutions (‘Director’) and the Commonwealth Director submit that the principles relating to the presumption of harm described in Clarkson apply equally to cybersex offences. We agree. The subject matter, text and purpose of the legislation concerned with sexual offences against children through the use of a carriage service rests upon the same presumption as exists in relation to offences committed ‘in person’, or in the presence of the child. The legislature, in enacting the provisions prohibiting the use of a carriage service to engage in sexual activity with a child, sought to implement society’s detestation of the practice of encouraging children to engage in inappropriate sexual behaviour, and to protect the child from immature decisions.
The presumption comports with the general sentencing principle that a sentencing court must take into account the impact of offending on the victim. Section 5(2)(daa) of the Sentencing Act 1991 provides that, in sentencing an offender, the court must have regard to ‘the impact of the offence on any victim of the offence’. Similarly, s 16A(2) of the Crimes Act 1914 (Cth) relevantly provides that, in determining the sentence to be imposed for a federal offence, the court must have regard to:
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(ea)if an individual who is a victim of the offence has suffered harm as a result of the offence — any victim impact statement for the victim; …
There is no reason why the implicit statutory presumption of harm should not apply equally to cybersex offences as well as ‘in person’ offences. The conduct prohibited in respect of cybersex offences falls squarely within the rationale of Clarkson. As the Commonwealth Director submitted, the ‘in person’ and cybersex offences have the same underlying objectives — to protect children and to deter those who might contemplate sexual activity with a child under 16. The parity between the two types of offences was explicitly invoked in the Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth), introducing the offence of using a carriage service for sexual activity with a child under 16, in which it was said that the purpose of the legislation was to ensure that ‘engaging in sexual activity with a child online is criminalised in a comparable way to equivalent activity engaged in in “real life”’.[26]
[26]Explanatory Memorandum, Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth) 86.
The appellant contended that there were nonetheless specific reasons why cybersex offences should be differentiated from ‘in person’ offences. He advanced the following reasons:
·Factors usually present in the case of ‘in person’ offending, including physical proximity of the offender to the victim, intimidation and coercion by the offender, or the abuse of a position of trust, may not be present in cybersex offending.
·In the online context, it may not be possible to identify a victim (and the victim’s characteristics, including their age) with certainty.
·Relatedly, ‘victims’ of conduct constituting a cybersex offence may be police or another member of the public impersonating a child, as did the appellant in the course of his offending.
·Child victims of cybersex offending have greater protection online than a victim might in relation to ‘in person’ offending, as the child online has a greater ability to terminate communications or otherwise to disengage than if physically in the presence of an offender.
·Children use the internet to explore their sexuality. In this respect, counsel for the appellant advanced a submission that child victims of cybersex offending, rather than suffering harm, may have increased resilience as a result of being subject to some forms of cybersex offending, and that exposure to such conduct may in fact reduce the victims’ vulnerability in the future.
·There is no risk of pregnancy or that the child victim may contract a transferable disease in the course of a cybersex offence.
We do not accept that any such points of differentiation require ‘in person’ offending to be approached differently to cybersex offending. The fact that cybersex offending takes place without physical proximity between offender and child, so that intimidation, coercion or breach of trust may not be present, does not affect the presumption that harm flows from such conduct. In R v Hays,[27] the offender had attempted to procure a child to engage in a sexual act. Chief Justice de Jersey (with whom McPherson JA agreed) rejected a submission that the offender’s failure to attempt to arrange to meet the victim in person was significantly mitigatory for the purposes of sentencing:
A meeting for the purpose of sexual exploitation carries particular risk to the immature victim. But so does indecent communication by an offender of mature years directed at an immature and therefore vulnerable child over the Internet. The graphic, salacious nature of what this applicant said, and did, if directed to a truly vulnerable 13 year old girl, would have carried serious potential to corrupt.[28]
[27](2006) 160 A Crim R 45.
[28]Ibid 49 [22].
As the present case illustrates, the medium of the internet permits the offender to employ techniques of intimidation or coercion which are designed to ensure the child’s participation. In some cases the relationship that exists between offender and child may give rise to a breach of trust. When such factors are present in offending ‘in person’, they are ordinarily a circumstance of aggravation. But the presumption of harm does not depend on such factors being present, either for ‘in person’ or cybersex offences, though their existence in a particular case may increase the risk of harm to the child.
The appellant emphasised the ability of a child the subject of cybersex offending to terminate communications by the mere pressing of a key. That argument is redolent of the submission rejected in Clarkson that apparent ‘consent’ by a child victim precluded an inference of harm. It matters not that the child may be seeking to explore their sexuality, or enjoys the attention of an offender via the internet, or that the child might have increased resilience or reduced vulnerability to exposure. Though it may be true that some children may use the internet to explore their sexuality,[29] that is no reason to relax any protection for children in that sphere. Harm is still presumed from such interaction. Indeed, as the Director submitted, ‘cyberspace is a place where adults can intrude upon the activities of children and young people, deceive them as to their true identity and intentions, and inveigle them into sexual behaviours beyond their maturity’. We reject the appellant’s submission that being the subject of cybersex offending may benefit, rather than harm, a child victim. Counsel cited no evidence for that proposition. The least that may be said about it is that such reasoning, if it were accepted, would hold true for ‘in person’ offences. That, of course, is directly contrary to the conclusion drawn by the Court in Clarkson. The points of differentiation as to the circumstances of offending in an online, rather than ‘in person’, environment do not necessitate any qualification to the application of the presumption that premature sexual activity is harmful for children.
[29]In this respect, the Director referred to the following: Parliament of Victoria, Law Reform Committee, Report of the Law Reform Committee for the Inquiry into Sexting, May 2013, Parliamentary Paper No 230, Session 2010–2013; Parliament of the Commonwealth of Australia, Joint Select Committee on Cyber-Safety, Interim Report, High-Wire Act: Cyber-Safety and the Young, June 2011.
The appellant’s arguments that it may not be possible in all cases to identify the victim of cybersex offending, and that it is possible that adults (including police officers) may impersonate children, online, misconceives the circumstances under which the presumption is to be applied. Where the victim of offending is not a child or a minor, or where there is no evidence as to whether a child is involved, no inference that the victim has been harmed will arise. The presumption that the prohibited conduct has caused the victim harm will not be enlivened. It will be a question of fact in each particular case whether a child is the subject of any offending. As the appellant pleaded guilty on the basis of the prosecution opening, which included identifying details (to a greater or lesser degree, but always including age) of each of the victims, the issue does not arise in this appeal.
The appellant relies upon the fact that ss 37A and 37B of the Crimes Act 1958, setting out objectives and guiding principles including ‘the fundamental right of every person to make decisions about his or her sexual behaviour and to choose not to engage in sexual activity’,[30] are not expressed to apply to the child pornography offence provisions. We reject the submission that this supports the contention that harm is not to be presumed in relation to those offences. On the contrary, it reflects the legislative purpose that the motivation of a child is irrelevant because harm is presumed.
No conflict between Clarkson and Cooper
[30]Crimes Act 1958 s 37A(a).
Finally, we also reject the appellant’s submission that there are observations in the joint judgment in Cooper inconsistent with the proposition that the presumption of harm stated in Clarkson applies to ‘cybersex’. In Cooper,[31] the appellant appealed against the sentence imposed for convictions upon guilty pleas on four charges of using a carriage service to access or transmit child pornography, two charges of using a carriage service with the intent of procuring sexual activity with a person under 16 and two charges of using a carriage service to groom a person under 16, as well as one charge of possessing child pornography. The argument was that the sentence imposed was manifestly excessive. The offending behaviour took place using the internet, and included ‘chat’ communications with children. In particular, the appellant had requested that two 14 year old boys with whom he had communicated masturbate in front of their computers so that the appellant could record the act.[32] The sentencing judge found that they had complied on four occasions.[33] Relevantly for present purposes, neither victim had complained to the police and when interviewed one said that he was unable to recall the incident.[34] In concluding that the sentences imposed on the charges relating to the two boys were manifestly excessive, the Court (Neave, Mandie and Harper JJA) found:
The appellant’s intention was to procure the boys to masturbate on-screen. There is no evidence that he attempted to persuade them to meet him. He did not attempt to initiate the boys into other sexual activities. Nor did he offer to pay them for what they did. Repellent as these offences were, there is no evidence that the victims were harmed by them. Nor was there any evidence that the images of the masturbating boys were transmitted to others, or stored in a manner that they could later be seen by others. We note that even in cases such as R v Gajjar and R v Fuller, where the offender used the internet to arrange a meeting with the child with the intention of having sex with him or her, the individual sentences imposed were lower than in this case.[35]
[31][2012] VSCA 32.
[32]Ibid [5].
[33]Ibid [16].
[34]Ibid [23].
[35]Ibid [31] (citations omitted) (emphasis added).
The finding, italicised above, that there was no evidence of harm to the victims in that case was no more, in context, than a finding that there were no circumstances of aggravation present. Amongst those factors enumerated as absent was manifested harm. The presumption of harm discussed in Clarkson, and its application to cybersex offending, had not arisen as an issue for consideration. The relevant passage from Cooper was confined to the facts of that case and involved no statement of principle. The appellant’s contention that Cooper must be understood to be an implied rejection of the application of the presumption in Clarkson to ‘cybersex’ cases cannot be sustained.
We turn to consider particular circumstances in which the appellant submitted that a presumption of harm should not be made.
Is it necessary that the harm be immediate and manifest?
The appellant submitted that the presumption of harm discussed in Clarkson was to be understood as applying only where the harm was ‘immediate, manifested physical or psychological harm’ such as arose from ‘in person’ offending. Such harm could not be assumed to flow from conduct via the internet. We also reject this contention.
Clarkson does not confine harm that flows from sexual offences against children to that which is immediate and manifested. The harm against which Parliament seeks to protect child victims includes that which is likely to emerge in the future. While the precise long-term consequences of premature sexual activity for any particular child are unknowable and impossible to predict, harm includes the increased risk of long-term consequences. Those consequences are now well recognised. It is not necessary that the ‘presumed harm’ be discernible at the time of sentence. The objective gravity of sexual offending against children rests upon the presumption that harm will occur irrespective of whether it is immediate and manifest. That is not to say that the precise nature of the offending is not relevant to an assessment of the gravity of the offence, and the degree of harm that may be presumed.
Does the presumption apply where the sexual activity does not include masturbation or nudity?
The Commonwealth Director acknowledged that the presumption of harm would not arise in every instance of sexual offending against a child over the internet. That is to say that the inference may simply not arise in some seemingly innocuous circumstances. The appellant, however, went further, arguing that the presumption could never be applied when the offending conduct over the internet fell short of, at least, masturbation or nudity. The appellant submitted that as Clarkson was concerned with penetrative sexual conduct, the presumption should not be construed to apply to less serious sexual offending.
Many of the charges to which the appellant pleaded guilty do not involve nudity or masturbation.[36] The appellant argued that the lack of those factors so reduced the prospect that the prohibited conduct would cause harm, that it should not be assumed, in the absence of evidence, that the victims had, in fact, been harmed. That submission rested upon a misunderstanding of the breadth of the presumption stated in Clarkson. The strength of the assumption underlying the presumption is adequately summarised by the quoted passage from Baroness Hale that ‘any sort of act of sexual activity with a child under 16 is an offence’. Clarkson stands for the proposition that the law’s objective is to protect children from all sexual activity. As the Director submitted, the online ‘chats’ that constituted the bulk of the appellant’s offending were characterised by explicit sexual language and sexual demands, and often involved importuning the victim to participate in acts of increasing sexual depravity.
[36]The appellant submitted that charges 2, 5, 7, 9, 10, 12,15, 16, 18, 19, 20, 21, 22 and 27 did not involve masturbation, and that charges 12, 16, 18, 19, 20 and 21 did not involve nudity.
It is a misconception that the ‘sexual activity’ against which the law attempts to protect children extends no further than conduct as or more serious than masturbation and nudity. The Dictionary to the Commonwealth Criminal Code defines ‘sexual activity’ as follows:
(a) sexual intercourse; or
(b) any other activity of a sexual or indecent nature (including an indecent assault) that involves the human body, or bodily actions or functions (whether or not that activity involves physical contact between people).
‘Engage in sexual activity’ is defined as follows:
without limiting when a person engages in sexual activity, a person is taken to engage in sexual activity if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.
Sexual activity, as contemplated by Parliament, is not restricted to physical contact and includes any activity ‘of a sexual or indecent nature’. Such a definition readily accommodates indecent or suggestive ‘chat’ communications.
Of course the degree of harm that may be assumed will vary according to the objective gravity of the conduct. The character of the offending — which may or may not include penetration, masturbation, nudity or any other feature — will affect the severity of the harm that it can be inferred has resulted.
The appellant relies upon the passage from Clarkson extracted above that states that ‘[t]he task of a sentencing court is difficult enough without having to deal with gradations of harm to a child victim, particularly when much of the assessment of harm involves predicting long-term consequences’.[37] That passage makes clear that judges are not required to try and grade the harm done to the particular victim. That does not mean that the judge, in assessing how objectively grave the activity was, should not take account of the degree of harm presumed to flow from that activity. The Commonwealth Director accordingly accepted that when the presumption of harm did arise, the degree of harm that was presumed in a particular case would depend upon the facts of that case.
[37](2011) 32 VR 361, 375 [53], set out above at [20].
Both the Director and the Commonwealth Director also accepted that, generally speaking, there would be some correspondence between the seriousness of the sexual activity, and the degree of future harm that was likely to ensue. That is to say, the harm would be less where the sexual activity the subject of the communications was less serious. They acknowledged that in the case of communications where the offender’s sexual intention was only to be discerned from facts extraneous to the communications, the activity might have limited consequences for the child. In such cases the objective gravity of the offending would be correspondingly reduced. But where the communications were of an overtly sexual nature, the presumption of harm would be extremely difficult to displace, even where the conduct did not rise to the level of masturbation or nudity.
Does the presumption apply to offences of grooming or procuring?
The appellant then submitted that even if the presumption could apply to some types of sexual offending with a child over a carriage service, it could not apply to the offences of procuring and grooming. He submitted that these offences are to be viewed as preparatory to ‘in person’ offences, and that the conduct prohibited is that which can lead to sexual activity. The policy said to underlie these offences is to deter and prevent conduct that can lead to sexual activity. As the harm described in Clarkson arises from sexual activity, rather than acts preparatory thereto, there is no warrant for an implicit statutory assumption that harm must have been caused by the conduct prohibited under those offences. We shall for convenience use the appellant’s description of ‘preparatory’, but do not agree that the presumption has no application to offences of that kind.
Subdivision F of pt 10.6 div 474 of the Commonwealth Criminal Code sets out offences relating to the use of a carriage service involving sexual activity with persons under 16 years of age. There are four principal categories of offence: a prohibition against sexual activity with a person under 16 (s 474.25A); a prohibition against procuring a person under 16 to engage in sexual activity (s 474.26); a prohibition against grooming a person under 16 (s 474.27); and a prohibition against transmitting indecent communications to a person under 16 (s 474.27A). These carry maximum penalties of 15, 15, 12 and 7 years respectively. Considered together, it is apparent that these provisions are intended to cover the field with respect to conduct that relates to sexual activity with children by the use of carriage services. The preparatory offences of procuring and grooming are part of that regime. We have already referred to the Explanatory Memorandum in respect of the offence under s 474.25A where the legislative intent was professed that online sexual activity with children should be put on the same (prohibited) footing as ‘real life’ sexual activity with children.
We reject the appellant’s submission that grooming (s 474.27) or procuring (s 474.26) offences are only prohibited to prevent harm being caused, and not because the conduct itself causes harm. The offences contemplate conduct that has the potential to cause harm. The grooming offence includes the element that the offender communicates with the victim ‘with the intention of making it easier’ to procure the victim for sexual activity.[38] The procuring offence includes the element that the offender communicates with the victim ‘with the intention of procuring the recipient to engage in sexual activity with’ the offender.[39] The adverse effects of such communications, including the vulnerability of the child that may result from the conduct, even if the communications themselves are not explicitly sexual, constitutes a significant harm to the child victim that enlivens the presumption.
[38]Criminal Code (Cth) s 474.27(1)(c).
[39]Ibid s 474.26(1)(b).
The harm that may be caused by preparatory offences was considered by Rothman J, in a concurring judgment, in R v Poynder.[40] The New South Wales Court of Criminal Appeal dismissed a Crown appeal against the sentence imposed for two procurement offences under s 474.26. Rothman J said:
The offence in question is a legislative attempt to regulate and prohibit the use of modern technology in the abuse of children. The fact, if it be the fact, that the perpetrator is not intending to act on her/his statements, because she/he is indulging in a fantasy, may be relevant to sentence, but is not the most relevant feature.
The legislature, with this provision, is seeking to implement society’s abhorrence of the practice of inducing children to engage in inappropriate sexual behaviour. That process includes not only the direct and physical abuse of children but the ‘grooming’ of children to accept more readily inappropriate sexual activity. Even though a perpetrator of an offence of this kind may have no intention of acting out the fantasy or fantasies in which she/he is indulging, the conduct has a significant deleterious impact upon any child participating in it.[41]
[40](2007) 171 A Crim R 544.
[41]Ibid 558 [95]–[96] (emphasis added).
It follows that, in our view, the presumption of harm arises in respect of the preparatory offences of procuring or grooming, even where the conduct caught may not be of an overtly sexual nature.
Does the presumption apply to pornography offences where the victim is 16 or more?
Finally, the appellant submitted that the presumption of harm did not apply to cybersex offences where the victim was aged 16 or older. Two of the offences with which the appellant was charged can be committed when the victim is over the age of 16, but less than 18 years of age. Section 68 of the Crimes Act 1958 prohibits the production of child pornography. Section 69 of that Act prohibits, inter alia, the procurement of a minor for the production of child pornography. ‘Child pornography’ is defined to mean ‘a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context’.[42] ‘Minor’ is defined to mean ‘a person under the age of 18 years’.[43] The appellant pleaded guilty to three charges of producing child pornography and six charges of procuring a minor for the production of child pornography. The appellant’s victims for those offences included a 17 year old (charge 10) and several who were 16 (charges 8, 9, 11, 14, 15 and 24).[44]
[42]Crimes Act 1958 s 67A (emphasis added).
[43]Ibid.
[44]See [9] above.
The appellant argued that Parliament intended 16 to be the age at which young people are capable of choosing to engage in sexual activity. He contended that the earlier quoted passages from Clarkson at [19] above[45] and the following further passage from that case supported this position:
The Victorian provisions reflect a longstanding community consensus that it is not until the age of 16 that a child has the psychological maturity and decision-making competence to agree to sexual activity.[46]
[45]Clarkson (2011) 32 VR 361, 368 [26], 371 [33].
[46]Ibid 369 [28].
The appellant argued that once a child reaches the age of 16 the rationale for protecting the child from harm from ‘premature sexual activity’ disappears. He said, and we accept, that there are other reasons for the prohibition on child pornography offences in relation to minors aged 16 or 17, including: to prevent the creation of a market for the corruption and exploitation of children; that children are abused, violated and degraded in order to create a market; and that people with pederastic inclinations could be stimulated to commit pederastic acts on viewing the material.[47]
[47]See R v Jongsma (2004) 150 A Crim R 386, 402–3 [32] (Batt JA), citing the Western Australian Court of Criminal Appeal in Dodge v The Queen (2002) 134 A Crim R 435.
The appellant also relied upon the undeniably odd outcome, when viewed in light of the age of consent, that it would have been perfectly legal for the appellant to engage in the act of sexual intercourse with the victims of his offending who were aged 16 or more, but that he stands convicted of cybersex offending in respect of those same victims. But this outcome is dictated by Parliament in a context where the assumption of harm inheres in the very text and purpose of those provisions.
The Director submitted that the definition of child pornography in the Crimes Act 1958 was amended in 2004 to include images of minors between the ages of 16 and 18. Previously, only images of minors who were or appeared to be under 16 were included. As the Attorney-General made clear in the second reading speech to the amending Bill,[48] the change was made to comply with the International Labour Organization’s Convention 182:
[48]Justice Legislation (Sexual Offences and Bail) Bill 2004.
The bill will also strengthen Victoria’s laws against the commercial sexual exploitation of children. The International Labour Organisation convention 182 on the worst forms of child labour calls for the elimination of the worst forms of child labour, including the use, procuring or offering of a child under 18 for prostitution, production of pornography or pornographic performances.
The Victorian government strongly supports ratification of this convention. Promoting the physical, sexual, emotional and psychological safety of all young people is one of the government’s priorities. Victorian laws already substantially comply with the convention, but there are some inconsistencies that will be addressed by this bill.
The bill will amend existing child pornography offences in the Crimes Act 1958 to raise the age threshold from under 16 to under 18 years. This will meet the requirements of the convention to criminalise the production of child pornography in relation to children under 18.[49]
For his part, the Commonwealth Director conceded that the case for the presumption in respect of 16 and 17 year old minors ‘is inherently weaker or perhaps entirely unsustainable’. In our opinion, the latter part of that concession goes too far. It is clear that a presumption of harm applies in the case of victims of these offences under the age of 16. Parliament has determined that these offences should also apply to minors aged 16 and 17. The purpose of the amendment to extend the age threshold was, as described by the Attorney-General, to promote ‘the physical, sexual, emotional and psychological safety of all young people’. The amendments were made on several bases, including that it was assumed that the prohibited conduct harmed its victims. The harm that flows from child pornography offences is
well recognised.[50] Although the age of the victim may be a relevant circumstance where the offender attempts to rebut the inference of harm, the presumption remains a primary rationale for these statutory prohibitions. That is so, notwithstanding that there are other important reasons why such conduct is proscribed.
[49]Victoria, Parliamentary Debates, Legislative Assembly, 21 April 2004, 718 (Rob Hulls, Attorney-General).
[50]See, eg, DPP (Cth) v D’Alessandro (2010) 26 VR 477, 484 [23] (Harper JA, with whom Redlich JA and Williams AJA agreed): ‘For reasons which to the ordinary lay mind are very hard to comprehend, there are those who have such lack of empathy that they cannot assimilate a simple truth: that what they see is not merely a titillating picture, but the degradation of human beings too young to avoid the exploitation to which they are being subjected.’ See also R v Porte [2015] NSWCCA 174, [59]–[72] (Johnson J, with whom Leeming JA and Beech-Jones J agreed), and the cases there cited.
In the very recent decision of the New South Wales Court of Criminal Appeal in R v Porte,[51] it was noted that ‘[t]here are few areas where the age of the Internet has impacted upon the criminal law more severely than in the field of child pornography offences’.[52] Offences which involve procuring child victims for child pornography and the production of child pornography via the medium of the internet require the imposition of sentences that reflect the ease with which this medium may be used to commit such grave offences and which give primacy to the need to deter and denounce such conduct.
[51]R v Porte [2015] NSWCCA 174.
[52]Ibid [52] (Johnson J, with whom Leeming JA and Beech-Jones J agreed).
Presumption of harm — conclusions
The persuasive presumption that a child has suffered harm as a result of prohibited sexual activity applies no less to cybersex offences than to ‘in person’ offences. The presumed harm need not be immediate and manifest, but includes the danger of future harm. The presumption arises by way of inferential reasoning, and the objective gravity of the offending is informed by the content of the communications.[53] Where there is evidence of manifested harm, the nature of that harm may aggravate the offending.
[53]Stalio v The Queen (2012) 223 A Crim R 261, 281 [69].
The statutory offences involving the use of a carriage service capture a range of activity of different categories of seriousness. It includes preparatory offences such as grooming and procuring and includes activity which does not involve masturbation or nudity. The presumption applies to those offences, as well as to offences where the age of the victim is extended to include children who are 16 or 17.
Where there is in fact no child victim the presumption will be displaced. Where the content of the activity is less sexually explicit, the objective gravity of the offence may correspondingly be reduced. In some instances the presumption of harm may be rendered almost negligible.[54] The offender may rebut the presumption by adducing or identifying evidence establishing that no harm has, in fact, been caused. Ordinarily it will be difficult to overcome the persuasive effect of the presumption. Ultimately, it is for the sentencing judge to be satisfied to the criminal standard that harm should be presumed.
[54]See Clarkson (2011) 32 VR 361, 375 [53], set out above at [20].
The judge made no error in concluding that the appellant had ‘harmed each of [his] child victims’. The nature of the offending conduct led inexorably to the inference that the child in each case had suffered harm. As the Director submitted, the judge made no finding of actual harm with respect to any of the victims, even though (as was conceded by the appellant) such a finding would have been open to him in respect of some, at least, of the victims. His statement was general in nature and referable to all of the victims. The harm was not treated as an aggravating circumstance.
The application of the principle in Romero v The Queen
Finally, the Director submitted that, even if the presumption did not apply to certain victims, the manner in which the plea was conducted precludes the argument now being raised on appeal. It was submitted that given the nature of this Court’s supervisory role, it should not lightly entertain an argument that was eschewed or could have been, but was not, advanced on the plea. The Director, with leave, filed further submissions in relation to a particular application of the principle in Romero v The Queen,[55] namely that the principle has been applied to appeals against sentence where evidence could have been elicited on the plea that could have answered an issue raised for the first time on appeal.[56]
[55](2011) 32 VR 486, 489 (Redlich JA, Buchanan and Mandie JJA agreeing).
[56]Pettiford v The Queen [2011] VSCA 96, [30]–[31]; Keane v The Queen [2011] VSCA 156, [13], [18]; Bayram v The Queen [2012] VSCA 6, [28]–[29]; Zreika v The Queen (2012) 223 A Crim R 460, 477 [73]–[83]; Pantazis v The Queen (2012) 38 VR 446, 489 [198]; Pali v The Queen [2013] NSWCCA 65, [10]–[13]; Arthars v The Queen (2013) 39 VR 613, 619 [16]–[19]; Dang v The Queen [2014] VSCA 49, [71] n 68; O’Connor v The Queen [2014] VSCA 108, [41]–[43], [59]; Tokay v The Queen (2014) 67 MVR 445, 451 [19]; Filiz v The Queen [2014] VSCA 212, [25]; Tokay v The Queen (2014) 69 MVR 24, 30 [22]–[23]; Johnson v The Queen [2014] VSCA 286, [42].
The plea was conducted in accordance with the lengthy agreed facts and on the basis that each of the victims had suffered harm. No submission was advanced that no such inference should be drawn in the case of any victim. The Director submitted that, had the issue been raised, he could have elicited evidence from witnesses, including expert witnesses, to further support the inference that each child victim had been harmed. But defence counsel did not endeavour to rebut the presumption. On the contrary, the appellant conceded harm in each child victim’s case. There is considerable force in the Director’s contention that even if harm had not been admitted in any victim’s case, the appellant cannot now seek to challenge findings made by the sentencing judge which were not placed in issue on the plea.
Finally, if, contrary to our view, the presumption of harm did not apply to a particular victim, or the judge otherwise erred in his findings as to harm, we do not consider that any different sentence should have been imposed. In our view, each of the individual sentences fixed in relation to the charges on the first indictment was fairly to be regarded as lenient.
We would dismiss the appeal on ground 1.
Ground 2 — specific error
Under this proposed ground, the appellant submitted that the judge failed to reduce the appellant’s moral culpability as a result of his use of the anti-obesity drug, Duromine. As we have earlier indicated, the sentencing remarks set out the personal circumstances of the appellant, including three medical reports, and referred to appellant’s use of Duromine. The judge found, favourably to the appellant, that it was ‘reasonably open that [the appellant’s] already reduced capacity to control impulse was further reduced by Duromine’.[57] The appellant’s complaint arises from the following passage in the judge’s sentencing remarks:
Ultimately, I accept the final submission made by [defence counsel] that Duromine made ‘some contribution’ to your offending and accordingly your moral culpability was reduced somewhat and that this must be reflected in your sentence. Ultimately, however your offending was self-centred, manipulative, exploitative, harmful to your victims and morally corrupt.[58]
[57]Reasons [26].
[58]Ibid.
Despite these sentencing remarks, the appellant argues that the judge’s conclusion that the appellant’s offending was ‘morally corrupt’ suggests that, contrary to the finding which precedes the impugned remarks, he made no allowance for the reduction in moral culpability caused by the Duromine.
This submission has no merit. The two findings — that the appellant’s moral culpability was reduced and that his offending was morally corrupt — appear in consecutive sentences and there is no inconsistency between them. There can be no doubt that the judge was keenly aware that the effects of Duromine bore upon the appellant’s moral culpability. It reduced that culpability but did not alter its moral character. The appellant’s submission is erroneously formalistic and misconceives the phrase ‘morally corrupt’ as signifying the highest possible level of moral culpability and that, therefore, there must have been no reduction. The appellant’s offending — which involved deception and depravity in respect of many young victims — was on any view sufficient to found a conclusion that the level of moral culpability was high, notwithstanding the allowance to be made for the possible side-effects of the appellant’s medication.
We would refuse leave to appeal on this ground.
Ground 3 — manifest excess
Under proposed ground 3, the appellant submits that the sentence imposed was manifestly excessive. Though some particulars plainly apply only to the sentences imposed on the cybersex charges, the ground as expressed applies to the total effective sentence resulting from the combination of the sentences imposed on both indictments. For the following reasons, we do not consider that the sentence was manifestly excessive.
Due to the number of charges and the combination of State and Commonwealth offences, this was a complex sentencing exercise. The sentencing judge imposed a sentence of four years and six months’ imprisonment for the blackmail offences, including the base sentence. The sentences imposed on the cybersex offences, including the State pornography offences, were cumulated on the second indictment such as to make a total effective sentence of six years and seven months’ imprisonment. The component of the appellant’s sentence that related to the cybersex offences was therefore two years and one month’s imprisonment.
We should deal first with the appellant’s oral argument on appeal, that provoked considerable debate, that there was an overlap in criminality between the offences on the two indictments (that is, between the cybersex offences and the blackmail offences) such that the sentences imposed on the two types of offences should not have been assessed as discrete offending.
Senior counsel for the Director invited the Court to evaluate the sentences imposed on the first indictment, concerning the cybersex offences, in isolation from the sentences imposed on the second indictment, concerning the blackmail offences. The appellant argued that there was overlap in the criminality of the offences insofar as the conduct the subject of the second indictment was facilitated by the appellant’s activity with the child victims on the first indictment. We do not accept that there was a relevant overlap in criminality between the offences. The offences on the two indictments had different victims and were profoundly different in character. There was no more than a temporal and opportunistic connection in that the offences the subject of the first indictment provided the appellant with the opportunity to commit the offences on the second indictment. That said, the principle of totality required an evaluation of the total criminality of the cybersex offences and the blackmail offences, and the imposition of a sentence as was stated in Azzopardi v The Queen,[59] that was no more than necessary to reflect that criminality. The judge plainly approached the sentencing task on this basis.
[59](2011) 35 VR 43.
We turn to the particulars that are said to be productive of manifest excess in the sentence imposed.
Reduction in moral culpability
The appellant argued that the judge failed to give appropriate weight to the reduction in moral culpability as a result of the appellant’s use of Duromine. For the reasons we have given for refusing leave on ground 2, this particular cannot support the contention of manifest excess.
The Doran discount for frank admissions of offences that could not have otherwise been proved
The appellant next argued that the judge failed to give appropriate weight to the appellant’s cooperation with investigating police. The judge made the following findings in respect of the appellant’s cooperation:
On 28 May 2013 and again on 4 July 2013, pursuant to agreement, you voluntarily underwent recorded interviews with investigators during which you made full and frank admissions in respect of what I have described as the internet offences. As noted earlier, a good number of the charges on indictment D12466350 are based wholly or substantially on your admissions and this is powerful evidence of your remorse. …
Each prosecution was resolved at the earliest opportunity and by your pleas of guilty and cooperation with police you have demonstrated your remorse.[60]
[60]Reasons [18], [19].
The judge had earlier noted that charges 2, 6, 25, 26 and 27 (use carriage service to procure child under 16 for sexual activity), charges 5, 8, 9 and 10 (procure minor for child pornography) and charges 7 and 15 (produce child pornography) were founded on the appellant’s admissions.[61]
[61]Ibid [11], [14], [15].
The appellant had, prior to the interviews referred to by the judge, provided a table containing detailed information about the cybersex offending. The table included details of offences that the prosecution could not otherwise have established. The appellant contended that the judge’s failure to refer to the provision of the pre-interview table indicated that his Honour had not given the appellant full credit for the entirety of his cooperation. This aspect of the complaint has no substance. The judge was clearly well aware of the appellant’s cooperation in the investigative process, and referred to charges on the first indictment that were based entirely on the appellant’s admissions. The effect of the appellant’s cooperation was reflected in the pre-interview table which he provided.
The appellant was, in the words of McHugh J in AB v The Queen,[62] entitled to ‘considerable leniency because of his confession’. As this Court recently observed in Latina v The Queen:[63]
The sentencing judge did not indicate that any such allowance had been made. Instead, the appellant’s confession was considered in the context of the ‘discount’ to which an offender is ordinarily entitled for a guilty plea. Although the appellant’s co-operation with investigators and his frankness in making a full confession was taken into account as bearing upon his remorse and prospects for rehabilitation, there was no reference to the principle in Ellis or Doran and no indication that there had been significant leniency allowed for his confession.[64]
[62](1999) 198 CLR 111, 126.
[63][2015] VSCA 102.
[64]Ibid [20], citing R v Ellis [1986] 6 NSWLR 603; R v Doran [2005] VSCA 271 (‘Doran’).
The judge did not in his sentencing remarks refer to the substantial discount required by the application of the Doran principle. In his remarks, the judge referred only to the mitigatory weight of the admissions in the context of the appellant’s remorse. That said, the judge did clearly differentiate between the sentences imposed on those offences that were founded on the appellant’s admissions, and those for which there was other evidence. The sentences imposed on offences founded on admissions were between 30 per cent and 50 per cent less than those imposed on offences not so founded, with only one exception.[65] Notwithstanding that his Honour did not state in his reasons that a substantial Doran discount had been given on the offences founded on the appellant’s admissions, we infer that such a discount was, in fact, accorded.
[65]Charge 1.
Even if that were not so, and the individual sentences imposed on the offences founded on the appellant’s admissions were too high, it does not follow, and we do not accept, that the total effective sentence of three years and nine months’ imprisonment for the cybersex offences was excessive, having regard to the criminality involved in the totality of that offending. Further, we note that only a little over half of those sentences were cumulated on the State offences on the second indictment.
Steps taken by appellant to minimise harm to victims
The appellant argued that the sentencing judge failed to give any, or any appropriate, weight to the steps taken by him to minimise the harm to the victims of a number of the offences. In summarising the offending on the charges of using a carriage service to procure and to groom persons under 16 for sexual activity, the judge said that the appellant had abused victims by losing his temper when not satisfied with their compliance with his demands.[66] The appellant conceded that that finding was open, but said that the judge had failed to mention countervailing conduct which indicated a degree of sympathy and concern for some victims. That manifested concern was said to qualify the inference that was otherwise to be drawn from the abusive conduct, that the appellant lacked concern for his victims. The appellant pointed to apologies that he made to one of the victims, the fact that he had ceased contact with some victims of his own volition, and the fact that he had taken the time to sign off when ending contact in respect of others.
[66]Reasons [11], [12].
We do not consider that such conduct provided any basis for mitigating the appellant’s moral culpability. Some of that conduct fell within the scope of the manipulation referred to by his Honour. By way of example, the Director referred to the conduct the subject of charge 4. The appellant, between March and August 2012, engaged in explicit communications with the victim, who was 15 years old and resided in Poland. In April, after the appellant had recorded several pornographic movies of the victim, she informed him that her parents were admitting her to a psychiatric hospital. In June, the appellant apologised to the victim for his behaviour. Thereafter, he continued to engage her in sexually explicit conversation. As the Director submitted, the judge was entitled to view such indications of sympathy or concern with a degree of cynicism, having regard to the appellant’s subsequent conduct. As we have earlier said, in imposing the sentences for the individual charges the judge plainly differentiated between the gravity of each offence. Both the abuse and any ameliorating conduct were carefully considered.
Gravity of the offences
The appellant argued that the judge failed to give appropriate weight to the objective gravity of the cybersex offences. His Honour found that these were ‘grave’ and ‘serious examples of offences of their kind’.[67] The appellant contended that in reaching these conclusions the judge failed to give appropriate weight to a number of factors that were said to render the offending less serious. The appellant pointed to the facts that his intention was to procure masturbation on-screen; that there was no evidence of his having attempted to persuade victims to meet him; that he had not attempted to initiate victims into other sexual activities; that he had not offered to pay the victims for what they had done; that there was no evidence of transmission of images to others; and that there was no evidence that he had stored those images in a manner that could be seen by others. The appellant pointed to Cooper, in which this Court described offending said to be similar to the present as being ‘at the lower end of the scale’.[68]
[67]Ibid [17], [34].
[68][2012] VSCA 32, [30].
We do not accept that the judge erred in assessing the gravity of these cybersex offences. His Honour’s finding that the offences were ‘serious examples’ immediately followed a conclusion as to the ‘frequency of [the appellant’s] offending, the large number of victims, all of them vulnerable with some of them more vulnerable than others’.[69] As the Director rightly submitted, the list of factors said to render the offences less grave was a recitation of possible aggravating factors for this type of offending not present in this case. The absence of such factors does not reduce the objective gravity of the instant offending. Moreover, the sentences actually imposed do not indicate that the judge considered the offences to be at the high end of the scale. The longest individual sentence imposed for a cybersex offence was three years’ imprisonment. That was for an offence with a maximum sentence of 15 years. The majority of sentences imposed for the cybersex offences were between one and two years’ imprisonment. We also reject the appellant’s comparison of the offending here to that in Cooper. In that case there were only nine charges, as opposed to the 28 charges upon which the appellant was convicted on the first indictment. The appellant’s offending was far more extensive and therefore far more grave. The nature of the offending in many instances may also be viewed as more serious than that in Cooper. In particular, there was more evidence of actual harm to victims. This particular does not advance the appellant’s submission that the sentence was manifestly excessive.
Prospects of rehabilitation
[69]Ibid [34].
In respect of prospects of rehabilitation, the judge made the following findings:
I am of the opinion that unless you maintain treatment for your inadequate personality and lack of impulse control that your risk of reoffending is of concern and that this risk impacts unfavourably on your prospects of rehabilitation absent continuing treatment. It is plain, however, that you have the unqualified love and support of your family and that this love and support, if combined with treatment would result in an assessment that the likelihood of your reoffending is low.
…
You have sought professional help. You have changed your lifestyle and now engage in the community. You have the unqualified support of your family. If you stay on your present course then your prospects for rehabilitation are good.[70]
[70]Ibid [28], [35].
The appellant does not suggest that any of these findings was not open to the judge. He contends, however, that the judge did not give sufficient weight to his ‘low’ risk of re-offending, and his ‘good’ prospects of rehabilitation. This submission has no foundation. It overlooks the fact that the finding was conditional upon the appellant maintaining treatment. There is nothing in the sentencing remarks to suggest that the judge, having made those findings, gave them insufficient weight. We agree with the Director that the judge appropriately balanced the level of risk with the indicia suggesting that the appellant had good prospects of rehabilitation.
Extracurial punishment
In his sentencing remarks, the judge recited the appellant’s educational history, including that he had completed a Bachelor of Applied Science in Psychology at the Royal Melbourne Institute of Technology University. The appellant submitted that as a result of his convictions he will now be unable to pursue any career flowing from that degree, and that this constituted an extracurial punishment for which he should have received due credit. The judge did not mention any such extracurial punishment in his remarks. There is again no substance in this complaint. Although it does not appear to have been raised as a specific mitigatory circumstance on the plea, the judge, who had considerable experience in the administration of criminal justice, would undoubtedly have understood these implications for the appellant. But the judge was not obliged in his sentencing remarks to refer specifically to every factor that had been synthesised. Nor could any expectation arise that it would be mentioned when it was not adverted to during the plea in mitigation.
Specific deterrence
Finally, the appellant submitted that the judge gave inappropriate weight to specific deterrence, when his Honour had previously found that the appellant’s prospects for rehabilitation were good. There is no merit to this argument. The judge found, quite correctly, that the nature of the offending was such that general deterrence and denunciation were the principal sentencing factors to be considered.[71] His Honour then went on, in the same paragraph, to mention specific deterrence:
The frequency of your offending, the large number of victims, all of them vulnerable with some of them more vulnerable than others, means that you must be specifically deterred from offending in the future.[72]
[71]Ibid [34].
[72]Ibid.
There was no other reference to specific deterrence in the sentencing remarks. The finding that there would be a low risk of the appellant reoffending if he continued with his treatment did not mean that specific deterrence should not have been given any weight at all. His Honour had expressed the view that the appellant’s risk of reoffending was a concern and ‘that this risk impacts unfavourably on [the appellant’s] prospects of rehabilitation absent continuing treatment’. Given those findings, it is not surprising that that the judge took into account specific deterrence. There is no foundation for the suggestion that specific deterrence was given undue weight.
The appellant’s submissions as to manifest excess, principally directed to the cybersex offences, have no substance. For offending that was properly described as ‘grave’, the sentences imposed on the individual cybersex offences were, as we have said, lenient, as was the total effective sentence on the first indictment. The offending the subject of the second indictment was also particularly grave. Having regard to the appellant’s total criminality, the total effective sentence, combining the sentences on the two indictments, was well within the range of sentences available.
We would refuse leave to appeal on ground 3.
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