CDirector of Public Prosecutions v Agrawal

[2024] VCC 529

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01343

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

SAURABH AGRAWAL

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2024
DATE OF SENTENCE:	30 April 2024
CASE MAY BE CITED AS:	CDPP v Agrawal
MEDIUM NEUTRAL CITATION:	[2024] VCC 529

REASONS FOR SENTENCE
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Subject:Criminal law - Sentence

Catchwords:              Use carriage service to groom another person to make it easier to procure a child believed to be under 16 years of age – Online communication with undercover operative purporting to be a single mother of a six  year old daughter – Communication over five days with explicit communication occurring over two days – Offender did not seek to conceal identity – No prior convictions – Plea of guilty at earliest opportunity – Offender has voluntarily sought psychological treatment – Diagnosed with Major Depression, Adjustment Disorder and Anxiety – Low to moderate risk of re-offending.

Legislation Cited:      Criminal Code Act 1995; Crimes Act 1914 (Cth); Sentencing Act 1991; Sex Offenders Registration Act 2004

Cases Cited:R v Tootell; ex parte AG [2012] QCA 273; R v GAW [2015] QCA 166; R v Quick; ex parte Attorney-General (Qld) [2006] QCA 477; R v Jones [2022] SASCA 105; Phibbs v The King [2023] VSCA 123; R v Elwdah [2023] NSWDC 416; R v Lawrence [2022] Unreported NSWDC (17 June 2022); Meadows v The Queen [2017] VSCA 290; Moore v R [2018] NSWCCA 26; Worboyes v The Queen (2021) 96 MVR 344.

Sentence:                  2 years and 8 months’ imprisonment. To be released after serving 6 months on a Recognisance Release Order with conditions.

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Mr S. Dhanapala	CDPP
For the Accused	Ms P. Smith (Plea) Mr C. Sher (Sentence)	Sher Criminal Lawyers

HIS HONOUR:

1Saurabh Agrawal, you have pleaded guilty to one charge of using a carriage service to groom another person to make it easier to procure a child believed to be under 16 years of age, contrary to sub-section 474.27AA(1) of the Criminal Code (Cth). The maximum penalty for this offence is 15 years’ imprisonment.

Circumstances of the offending

2The circumstances of your offending are set out in an agreed prosecution opening dated 13 October 2023.[1]

[1]Exhibit A.

3At the time of the offending, between 9 March and 13 March 2023, you were 42 years old. You were using an online platform ChatiW with the username ‘darkest_shadow’.

4ChatiW is a free internet based online chat room that provides a level of anonymity by not requiring identifying information upon sign up.

5On 9 March 2023, using your ChatiW account you commenced a conversation with ‘Sienna’ who happened to be a covert operative. Sienna was purporting to be a 25 year old female living in Melbourne and the mother of a six year old daughter nicknamed ‘Princess’.

6You engaged in detailed communications with Sienna between 9 March 2023 and 13 March 2023. These communications immediately focussed on Sienna’s purported daughter. You asked how old Princess was, to which Sienna replied “6”. After a short preliminary exchange about where both parties lived, you started detailing to Sienna the sexual activities you wished to engage in with Princess. You asked Sienna: “you mind if I taste your little princess hv lick her clit.” You stated that you would love to go down on both mother and daughter. You told Sienna that you had always wanted to go down on a six year old and that it was not easy to find a young girl. You enquired “has anyone ever eaten your princess yet?”, to which Sienna replied “Not yet.”

7You asked Sienna what she was doing on Monday as it was a public holiday and you would be home doing nothing. Sienna stated she was home as well and there was no school. You replied by saying that you would love to see Sienna and her daughter in school uniform.

8You then described yourself as “5’11 medium built black hair brown eyes… brown skin.. kinky mind and a very long tounge [sic].” Sienna described herself as “5 foot 5, slim, blonde, blue eyes” and “princess is a blondey too.” She added that she was “a single mum, dad isn’t around so I do wat I can. Cleaning and taking work where I can atm”, to which you replied “love you to clean me while I hv the princess sitting on my face.”

9You again reiterated an interest in meeting with Sienna and Princess, asking Sienna whether she wanted to come over on Monday. Sienna asked you what you wanted to do on Monday. You stated that you would love to play with Princess and have her vagina on your face. You said you could meet at McDonalds near your home or she could come directly to your house.

10You and Sienna then exchanged phone numbers and the communication continued via SMS. When Sienna asked you to tell her more about Monday, you replied that you would love to have some time with her daughter and would love her to sit on your lap and touch her while you made out with Sienna. You asked Sienna if she had ever tasted Princess. You said you wanted to do that for years but had never met anyone. You added that it was not easy to find young girls. You asked Sienna when you tasted Princess if she just wanted to watch or what would she be doing. You said “on chatiw most are just talk. Chicken out when the D day comes.” The conversation also continued in relation to the arrangements for Monday. You told Sienna you would be home on your own between 8am and 4pm. You could meet her at the train station and that your place was a seven minute bus ride from the station.

11You wanted to know what they would be wearing as your long tongue was getting excited. You told Sienna that Princess should wear a skirt so that you could feel her when she sat on your lap.  You stated that you were hoping neither of them would be wearing underwear. When asked what you were thinking of doing on Monday, you replied that that you were thinking of licking and tasting Princess and even kissing her. You would suck her nipples and get her to sit on your face. You wanted Sienna to ride you while you eat her daughter. You stated that you wished you could have them both right now.

12You then asked for a picture of Sienna and her daughter. Photographs were exchanged. You sent a selfie with an emphasis on your tongue and a second photograph of you in a suit.

13You asked Sienna if she was excited about Monday and she replied “very”. You asked her if Princess would “resit [sic] or scream when I eat her.” You said that you would engage in sex in front of her daughter.

14The conversation continued the following day, Friday 10 March 2023. Arrangements for Monday were discussed. You then turned once more to discuss Princess saying that you would like to pop her cherry when she turned 13. In relation to Monday, you stated that you would do to Princess whatever Sienna and her daughter were comfortable with.

15On Monday 13 March 2023, Sienna text you to confirm if 10am was okay. You replied around that time. Sienna stated she was on the train.

16You then appeared to have some reservations about the meeting. You asked Sienna to take a picture of where she was and to call you. Following a phone call, you engaged in a text exchange where you asked Sienna if she was a cop as you were getting that kind of feeling. You asked her to take a picture of her to put your mind at ease. You added that you were not wasting her time and wanted to meet as long as she was not a cop. Sienna sent you a photograph of South Morang station with signage. You said that you wanted a photograph of her as you feared she was a police officer. Sienna then sent you a full length portrait photograph of a female from the neck down and a photograph of Timezone in Plenty Valley with the message “I’ll take Princess here so up 2 u let me know.” You asked her why she was hiding her face and if she could confirm that she was not a police officer. She replied that she was not a police officer. You replied “Cool. And you will not call cops on me either?” and “in my defence, you should not.” You stated that you would be there in 30 minutes.

17You left home around 10.55am in order to meet Sienna at the Plenty Valley shopping centre. Having arrived at 11.08am, you were approached and arrested by the police. You were taken to your home address in order to execute a search warrant. An interview, largely no comment, was conducted at your house. You were then charged and remanded in custody.

18Your mobile phone was analysed and the conversation exchange with Sienna was identified.  An image of you wearing a blue suit, similar to the one you sent to Sienna, was located on your phone.

19You remained in custody for 30 days before being granted bail on 11 April 2023.

Personal circumstances

20You were born in Mussoorie, India in November 1980. You lived with your parents, older brother, grandmother and an aunt. Your father ran a restaurant and a small business. Your mother was a housewife. You enjoyed a happy, loving childhood with strong relationships with your immediate and extended family.

21You completed your primary and secondary education in Mussoorie. At the age of 18, you moved to New Delhi, commencing a Bachelor of Arts degree at Delhi University. Having completed your degree at the age of 23, you moved to Australia and settled in Melbourne in 2004. At the time of moving here, your older brother was already settled in Sydney. In Melbourne, you undertook and completed a Graduate Diploma in International Business and a Master of Commerce at Deakin University.

22Your parents also moved permanently to Australia in 2011 and live in Sydney. You became an Australian citizen in 2009.

23You have enjoyed a successful employment history. From 2006 until 2013, you were employed as a team leader at a superannuation company. As a team leader, you managed a customer service and sales team comprising 24 staff members. You also mentored upcoming team leaders. For a period of nine years, commencing in 2014, you worked as a data analyst at a bank. As a result of being charged for this offending, your employment was terminated in July 2023. You have not worked since and have been living utilising your savings.

24You met your wife in 2013. You got married in India in November 2017. You were able to secure a period of leave from work when you lived with your wife in India. Both of you returned to Melbourne in September 2019.

25I was told that you and your wife wanted to start a family but experienced fertility issues for some four years. In April 2022, your wife suffered a miscarriage. The struggles with fertility and the miscarriage placed a significant strain on your relationship.

26You felt isolated. You were struggling with insomnia and would stay up spending your time on the Internet. This involved utilising chat rooms. The chats evolved into engaging in conversations with a sexual connotation, including the offending conduct now before this court.

27Your counsel made it plain that she relied upon this to provide context. It plainly does not in any way provide any excuse for your offending conduct.

28Since the offending, in January this year, you wife gave birth to your first child. Your daughter is now some three months old. You provide considerable support to your wife and you are described as a loving father.

Gravity of the offending and sentencing purposes

29Your offending was directed towards someone you believed to be a single mother of a six year old daughter. Your communication abused the trust a child had in her mother. I am required to take into account as an aggravating factor, the fact that your intended victim was under the age of ten.[2] The communication commenced on 9 March 2023 and continued until the day of the meeting, 13 March 2023. Your conduct was calculated, it was persistent and manipulative. As conceded by your counsel, messages sent by you indicating your intention of always wanting to engage in sexual activity with children but that it was not easy finding a young girl, demonstrate that you were persistent and insistent in your intention to engage in sexual activity with Sienna’s child and shows an attempt by you in manipulating Sienna  by encouraging her and trying to ensure she would follow through with the plan.[3] I also find that the fact that you did not hide your identity is indicative of your intention to meet with the mother and child.

[2]Criminal Code s 474.29AA(1)(c).

[3]These statements are not relevant to prove the veracity of these statements in terms of any previous conduct.

30The communication involved abhorrent sexually explicit matters relating to what you would do to a six year old girl. This explicit communication occurred over two days.  It involved making firm plans to meet up with Sienna and her daughter. You were arrested at the arranged meeting point which also demonstrates your intention to follow through with the arranged conduct. I bear in mind that I am sentencing you for an offence of grooming the recipient of your communications in order to make it easier to procure a child to engage in sexual activity with you.

31This offence is aimed at preventing the abuse of children. The fact that Sienna was a covert operative and no actual child was involved, is not mitigating.[4]

[4]Of course, if an actual child was involved that would have been an aggravating factor.

32I regard your moral culpability to be high. The communications on the morning of 13 March 2023, where you expressed concern that Sienna was a police officer, make plain of your awareness that what you were contemplating was illegal.   

33I accept that the sexually explicit communication was limited to two days.[5] No inducements or any threatening behaviour was employed. You did not seek to conceal your identity, volunteering your true age, appearance and phone number. As I said earlier, the lack of concealment is relevant in that your conduct  was no perverted fantasy, but you meant to follow up on sexual activity involving a very young child.  

[5]It is noted that the communication on 9 March 2023 occurred over some three hours.

Matters in mitigation

34I have had regard to the following material tendered on your plea:

(i)Written plea submissions prepared by Ms Smith dated 14 February 2024.[6]

(ii)Psychological report dated 9 November 2023 prepared by Ms Pamela Matthews.[7]

(iii)Treatment reports dated 6 November 2023 and 14 February 2024 prepared by Ms Daria Sizenko.[8]

(iv)Reference from Mrs Swetha Kamat dated 18 October 2023.[9]

(v)Reference from Mr Kunal Sarna dated 15 October 2023.[10]

(vi)Reference from Mr Wesleigh Varnava dated 21 October 2023.[11]

[6]Exhibit 1.

[7]Exhibit 2.

[8]Exhibit 3.

[9]Exhibit 4.

[10]Exhibit 5.

[11]Exhibit 6.

First experience of custody and voluntary treatment upon release on bail

35The period on remand, before being granted bail, was your first experience of custody. I am sure that this short period of incarceration would have brought home to you the seriousness of your offending conduct.

36Since being granted bail on 11 April 2023, you have sought treatment at your own expense. Since 16 May 2023, up until your plea hearing, you have undergone 14 treatment sessions with a psychologist, Ms Daria Sizenko. You have indicated a willingness to continue with this treatment. I have had regard to the two reports prepared by Ms Sizenko dated 6 November 2023 and 14 February 2024.  The sessions focused on exploring your insight and looking at factors contributing to your offending. The sessions also provided you with general mental health support. Ms Sizenko comments:

Mr Agrawal has been an active participant during the sessions, being open and willing to discuss prior maladaptive thought patterns and offending behaviour. He did not make attempts at dismissing or minimising his offending behaviour.[12] 

[12]Third paragraph on page 2 of Ms Sizenko’s report dated 6 November 2023. However, see footnote 15.

Ms Matthews’s findings.

37Ms Matthews examined you on 20 October 2023 and prepared a psychological report. I have had regard to her report and note the following pertinent matters:

(i)Your educational background suggests that you function cognitively in the high-average range.

(ii)Your risk of re-offending in a similar manner over the next five years is estimated to be 5 percent.[13] Your risk of contact sexual offending is considered to be low to moderate.[14]

(iii)Based on the time period of your offending, you do not meet the criteria for a diagnosis of Pedophilia.

(iv)Despite the treatment sessions with Ms Sizenko, according to Ms Matthews, you retain a level of cognitive distortion. You maintained that your interest was in the adult female and not the child. Ms Matthews opines that you require further sex offender treatment.[15]  

(v)You are diagnosed with Major Depression. The diagnosis is based on your current legal predicament. Therefore, Ms Matthews states that you meet the overarching diagnostic criteria of Adjustment Disorder with Anxiety and Depression. You have been taking anti-depressant medication since April 2023.

(vi)In Ms Matthews’s opinion, any time in custody is likely to be quite burdensome in light of your mental health.

[13]Based on the Child Pornography Offender Risk Tool. There is a 72-74 percent chance that this risk estimate is correct.

[14]Based on the Kent Internet Assessment Tool.

[15]Similar comments were made to Ms Sizenko. See page 1 of her report dated 6 November 2023: He noted typically going along with whichever fantasy the other person expressed, as well as being conscious about being blocking and reporting people who were underage. He would similarly report and block accounts that would attempt to send him CAM images.

Plea of guilty

38You pleaded guilty at the earliest opportunity. By pleading guilty, you have facilitated the course of justice and taken responsibility for your actions. You have also saved the community the time and expense of a trial.

39Your plea of guilty attracts a greater utilitarian benefit, having been entered when the courts were facing significant delays in relation to criminal trials. The courts encouraged those who were guilty to so plead, by providing an ‘actual and palpable’ amelioration of sentence.[16]   

[16]Worboyes v The Queen (2021) 96 MVR 344.

Remorse

40Your comments to Ms Sizenko and Ms Matthews as outlined in paragraph 37 (iv) of these reasons, do not allow me to accept that you are entirely open and remorseful. However, in light of your pleas of guilty and the fact that you have sought voluntary treatment, I will accept that there is at least some remorse.

Good character

41You are now 43 years of age and have no prior convictions. I have had regard to the three character references. You are described as a hardworking and trustworthy person. According to your wife, you are ordinarily a responsible person who has been very supportive during your marriage.

Impact of a custodial sentence upon family members

42Your wife gave birth to your daughter on 19 January 2024. You provide support to your wife as you begin parenthood after a difficult few years. I was told you do not have any familial assistance. You parents live in Sydney and your wife does not have any contact with her family. I accept that your absence will make it difficult for your wife as a sole carer of your daughter without your support.

Limb five of Verdins[17]

[17]R v Verdins (2007) 16 VR 269 (‘Verdins’).

43Bearing in mind Ms Matthews’s findings, I accept that a term of imprisonment will weigh more heavily on you than it would on a person in normal health.  

Sentencing submissions and establishing exceptional circumstances

44On your behalf, Ms Smith conceded that a term of imprisonment was inevitable. However, she invited the court to release you immediately on the basis that exceptional circumstances were established.

45Section 20(1)(b)(ii) of the Crimes Act 1914 (Cth) states that an offender being sentenced to a term of imprisonment on a Commonwealth child sex offence committed on or after 23 June 2020 must establish exceptional circumstances before a court can order their immediate release on a Recognisance Release Order (RRO). This provision has application here.

46Ms Smith submitted that exceptional circumstances were made out by a combination of factors. She relied upon your early plea of guilty, voluntary engagement in treatment, absence of a prior criminal history, stable and supportive family, low-moderate risk of re-offending and good prospects of rehabilitation, the fact that your wife has recently given birth and requires your support and that a period of incarceration would interfere with the gains you have made in respect of your rehabilitation. Ms Smith referred me to the case of Phibbs v The King.[18]

[18][2023] VSCA 123.

47In the alternative, if exceptional circumstances were not established, she submitted that the court consider release on a RRO following the serving of a short term of imprisonment.

48On behalf of the Commonwealth Director, Mr Dhanapala submitted that the circumstances did not reach the requisite threshold of exceptional circumstances. He referred me to a Schedule of Comparative Cases[19] and submitted that a period of actual custody was warranted in any event. Mr Dhanapala accepted that a RRO was within range.[20]

[19]R v Elwdah [2023] NSWDC 416; R v Lawrence [2022] Unreported NSWDC (17 June 2022); Meadows v The Queen [2017] VSCA 290; Moore v R [2018] NSWCCA 26.

[20]He sought to amend [39] of his written submissions (exhibit B).

49What constitutes exceptional circumstances is not defined. In the case of R v Tootell ex parte AG [2012] QCA 273 at [18], the Court stated:

We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

50In R v GAW [2015] QCA 166, the Court quoted R v Quick; ex parte Attorney-General (Qld) [2006] QCA 477:

What emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case.

… the court, in the sentencing process, must consider whether there are exceptional circumstances which, in the light of all the other aspects of the case including those described in s 9(6), warrant the imposition of a sentence which does not involve actual custody. The mitigating circumstances must be considered against a background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances of that kind.

51In the more recent decision of R v Jones [2022] SASCA 105 at [45], the South Australian Court of Appeal stated:

Some uncommon features may militate against a finding of exceptional circumstances rather than support it. It is not a matter of a sentencing court sifting through the personal circumstances of an offender to find something that perhaps can be described as uncommon to support a finding of exceptional circumstances. That is not to say that the personal circumstances of an offender can never tip the scales in favour of a finding that exceptional circumstances exist. It depends. But the purpose of the section and the general sentencing considerations including general deterrence, personal deterrence and the protection of the community always loom large. A finding of exceptional circumstances must be based on an assessment of all of the usual sentencing criteria.

52Both counsel were in agreement that in determining whether the combination of factors relied upon amounted to exceptional circumstances, the court was required to look at all the circumstances including the objective seriousness of the offending and the need to emphasise general deterrence. 

53It is not in dispute, for the reasons already alluded to, that your offending conduct is objectively serious. The communications occurred over some days and were persistent, manipulative and sexually explicit. The offending conduct was not limited to mere conversations, but involved firm plans to meet someone whom you believed to be a single mother along with her six year old vulnerable daughter.

54As Ms Smith accepted, quite properly, general deterrence is a primary sentencing consideration. There is a paramount public interest in promoting the protection of children.

55Having had regard to all relevant factors, I am unable to accept that you have established exceptional circumstances. In order to do justice to general deterrence in light of the gravity of your offending, a period of imprisonment to be served, is necessary. I do not regard that the one month you have served adequately meets all necessary sentencing purposes.

56In addition to deterring others from committing similar vile offending, your offending must be appropriately denounced, you must be justly punished and the community protected. Deterring you from any further offending also has some relevance.

57Majority of the matters relied upon in establishing exceptional circumstances relate to your rehabilitative prospects. While I accept that you have been undergoing treatment on a voluntary basis, I note that in Ms Matthews’s assessment you are still struggling with developing insight. Further incarceration may to some extent impede your rehabilitation, however, I must not let rehabilitation take precedence over the importance of general deterrence. The fact that you have pleaded guilty or have no prior convictions is not unusual in cases like this.

58While the factors relied upon to demonstrate exceptional circumstances may be similar to those in Phibbs v The King, one significant difference is that here your offending cannot be described as towards the lower end. I am required to look at all relevant factors, not only those that are mitigatory or concern your rehabilitation.  

59Your rehabilitation remains important. Section 16A(2AAA) of the Crimes Act requires the Court to have regard to the objective of rehabilitating you, including by considering whether it is appropriate  in determining the length  of any sentence or non-parole period, to include sufficient time for you to undertake a rehabilitation program. The principal purpose of rehabilitation in this context is to protect the community. I have taken this into account in sentencing you. The sentence I will impose will allow for sufficient time for you to undertake an appropriate sex offender treatment  program.  

60I bear in mind that having served one month, you were released on bail. Returning you to custody in those circumstances, particularly in light of your current  personal circumstances involving your new role as a parent, will be more difficult for you.

61Having considered all relevant matters and circumstances, including the matters in Part 1B of the Crimes Act, I sentence you as follows:

62Please stand Mr Agrawal.

63On Charge 1, you will be convicted and sentenced to 2 years and 8 months’ imprisonment. The sentence will commence today, 30 April 2024. I direct that you serve 6 months of the term imposed before being released on a RRO upon giving a security in the sum of $2,000 on the condition that you be of good behaviour for a period of 2 years.

64You must also comply with the mandatory conditions under s 20(1B) of the Crimes Act for a period of 2 years. These conditions include being subject to the supervision of and obeying the reasonable directions of a probation officer, not travelling interstate or overseas without written permission from a probation officer, and undertaking such treatment or rehabilitation programs reasonably directed by a probation officer.

65In addition, you are required to report to South Morang Community Corrections within two clear working days after your release, report to and receive visits from a Community Corrections officer, and notify an officer of any change of address or employment within two clear working days after the change.

66Finally, you must attend for assessment, and if deemed suitable, undergo treatment for sex offender programs as directed in order to reduce your risk of re-offending.

67If you breach the conditions of the RRO, you may be brought back before this Court and dealt with for that breach. One consequence of the breach is that you may be required to serve the unexpired portion of the sentence imposed upon you today.

68Do you understand that Mr Agrawal?

69Agrawal: Yes.

Pre-sentence detention

70Pursuant to s 18 of the Sentencing Act 1991,  the period of 30 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.

Section 6AAA declaration

71Pursuant to s 6AAA of the Sentencing Act, I indicate that had you pleaded not guilty and been convicted you would have been sentenced to a term of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months.

Sex Offender Registration

72Pursuant to the Sex Offenders Registration Act 2004, registration is mandatory and the reporting period is for eight years. Upon your release from prison, you must report your personal details to Victoria Police and continue to comply with the reporting obligations.

Written notice of the reporting obligations and the sentence imposed

73You will now be given written notice of your reporting obligations upon your release and the consequences of any breach. It is an offence punishable by a term of imprisonment to fail, without reasonable excuse, to comply with your reporting obligations.

74You will also be given written notice of the sentence imposed today, including the conditions that you must comply with.