Clarke-Jeffries v R

[2019] NSWCCA 56

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Clarke-Jeffries v R [2019] NSWCCA 56
Hearing dates:	15 March 2019
Date of orders:	15 March 2019
Decision date:	15 March 2019
Before:	Simpson AJA at [1] Bellew J at [2] Campbell at [73]
Decision:	(1) Leave to appeal granted. (2) Appeal allowed. (3) Sentences imposed in the District Court quashed. (4) In lieu thereof the applicant is sentenced as follows: (a) In respect of the charge of using a carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth) the applicant is sentenced to a fixed term of 7 months imprisonment on commencing 23 May 2018 and expiring on 22 December 2018. (b) In respect of the charge of using a carriage service to procure a person under the age of 16 years to engage in sexual activity contrary to s 474.26(1) of the Criminal Code 1995 (Cth), the applicant is sentenced to imprisonment for 2 years commencing on 23 May 2018 and expiring on 22 May 2020. After serving 9 months he is to be subject to a recognisance release order from 23 February 2019 to 22 May 2020. (c) In respect of the charge of making an unwarranted demand with menaces contrary to s 249K(1)(a) of the Crimes Act 1990 (NSW) the applicant is sentenced to a fixed term of 7 months imprisonment commencing 23 July 2018 and expiring on 22 February 2019. (5) The applicant is to be released from custody forthwith.
Catchwords:	Criminal law – Offences – Sentence – Using a carriage service to solicit child pornography material – Using a carriage service to procure a person under the age of 16 years to engage in sexual activity – Making an unwarranted demand with menaces – Where applicant sent messages to the victim to procure sexual activity – Where applicant sought money from the victim in exchange for destroying photographs she had sent to him – Where the findings of the sentencing judge largely favourable to the applicant – Applicant barely 18 years of age at the time of the offending – Victim 15 years of age – Not a case of grooming – Serious mental health issues prevailing at the time of the offending – Sentence of 4 years and 4 months imprisonment with a non-parole period of 2 years manifestly excessive in the circumstances – Applicant re-sentenced
Legislation Cited:	Criminal Code 1995 (Cth) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth)
Cases Cited:	Director of Public Prosecutions (Cth) v Del La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Gifford v R [2016] NSWCCA 302; (2016) 263 A Crim R 373 Kentwell v R [2014] HCA 37; (2014) 252 CLR 601 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Moore v R [2018] NSWCCA 26 R v Dodd (1991) 57 A Crim R 349 R v Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76 R v Poynder [2007] NSWCCA 157; (2007) 171 A Crim R 544 Tector v R [2008] NSWCCA 151; (2008) 186 A Crim R 133
Category:	Principal judgment
Parties:	Lachlan Clarke-Jeffries – Applicant Regina – Respondent
Representation:	Counsel: T Quilter - Applicant L Fernandez - Respondent   Solicitors: Aboriginal Legal Service (NSW/ACT) – Applicant Commonwealth Director of Public Prosecutions – Respondent
File Number(s):	2017/90643
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 23 May 2018 Before: Acting Judge Delaney File Number(s): 2017/00090643

Judgment

1. SIMPSON AJA: The reasons given by Bellew J reflect my reasons for joining in the orders of 15 March 2019.

2. BELLEW J: On 23 May 2018 Laughlan Clarke-Jeffries (the applicant) appeared before Acting Judge Delaney in the District Court for sentence in respect of the following charges:

1. Count 1 – Using a carriage service to procure a person under the age of 16 years to engage in sexual activity contrary to s 474.26(1) of the Criminal Code 1995 (Cth) (the Code).

2. Count 2 – Using a carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Code.

3. Count 3 – Making an unwarranted demand with menaces with the intention of making a gain contrary to s 249K(1)(a) of the Crimes Act 1900 (NSW).

3. An offence against s 474.26 of the Code (count 1) is committed only where the offender is at least 18 years of age and the victim is, or the offender believes the victim to be, under the age of 16 years. The maximum penalty in respect of each of counts 1 and 2 is 15 years imprisonment. The maximum penalty in respect of count 3 is 10 years imprisonment.

4. The sentencing judge imposed the following sentences:

1. Count 1 – imprisonment for 4 years commencing on 23 September 2018, with a non-parole period of 2 years;

2. Count 2 – imprisonment for 12 months commencing on 23 September 2018; and

3. Count 3 – imprisonment for 13 months commencing on 23 May 2018.

5. The total effective sentence imposed was imprisonment for 4 years and 4 months, with a non-parole period of 2 years.

6. By notice dated 22 November 2018 the applicant sought leave to appeal on the basis that the sentence imposed was manifestly excessive.

7. At the conclusion of the hearing before this Court on 15 March 2019, the following orders were made:

1. Leave to appeal granted.

2. Appeal allowed.

3. Sentences imposed in the District Court quashed.

4. In lieu thereof the applicant is sentenced as follows:

1. In respect of the charge of using a carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth) the applicant is sentenced to a fixed term of 7 months imprisonment on commencing 23 May 2018 and expiring on 22 December 2018.

2. In respect of the charge of using a carriage service to procure a person under the age of 16 years to engage in sexual activity contrary to s 474.26(1) of the Criminal Code 1995 (Cth), the applicant is sentenced to imprisonment for 2 years commencing on 23 May 2018 and expiring on 22 May 2020. After serving 9 months he is to be subject to a recognisance release order from 23 February 2019 to 22 May 2020.

3. In respect of the charge of making an unwarranted demand with menaces contrary to s 249K(1)(a) of the Crimes Act 1990 (NSW) the applicant is sentenced to a fixed term of 7 months imprisonment commencing 23 July 2018 and expiring on 22 February 2019.

5. The applicant is to be released from custody forthwith.

8. My reasons for joining in the making of those orders follow.

The circumstances of the offending

9. The following summary of the applicant’s offending is drawn from an agreed statement of facts which was tendered before the sentencing judge.

10. At the time of the offending the applicant was 18 years of age. In fact, he had turned 18 years of age on the same day as the commencement of the period of the offending in Count 1. The victim of his offending was a 15 year old female who resided with her parents and younger brother. The victim and applicant did not physically meet at any stage. However, they regularly corresponded, through their mobile phones, via the social media platforms ‘Instagram’ and ‘Snapchat’.

11. Between about October 2016 and January 2017 the applicant and the victim exchanged between 3,500 and 4,000 messages, in the course of which the applicant requested that the victim meet with him to have sex. It should be noted that the terms of only a small number of the messages sent by the applicant were specifically set out in the facts. What the remaining messages he sent to the victim may have said, and whether each and every one of them was in the nature of a request for sex, is not known. That said, the terms of the messages sent by the applicant to the victim which were set out in the agreed facts were crude and explicit. In the face of those messages, the victim provided excuses explaining why she could not meet with the applicant, but the applicant persisted.

12. On 19 October 2016 the applicant made a number of requests to the victim to send him photographs of her naked breasts. The victim ultimately complied with those requests, although before doing so she requested that the applicant not save them. One of the images that she sent clearly identified her face.

13. After a period during which they had no contact, the applicant and the victim resumed exchanging messages in February 2017. On 26 February 2017 the applicant initiated a series of messages during which he requested that the victim meet with him to have sex. When the victim stated that she had school work to do, the applicant persisted with his request. The victim continued to decline. The applicant then told the victim to send more photos of her breasts. The victim asked the applicant not to make her do so. The applicant persisted, and then asked the victim to meet with him so that they could engage in oral sex. The messaging continued with the applicant putting pressure on the victim to either meet with him to have sex, or to send him more photos. The applicant persisted, notwithstanding the fact that the victim told him that she was having an anxiety attack as a consequence of his demands.

14. At one point, the applicant said that he wanted to “take” the victim’s virginity, and sent messages to the victim in explicit terms describing the sexual acts in which he wished to engage with her. In the course of doing so, the applicant reminded the victim that he still had the previous photos which she had sent him in October 2016. The following messages were then exchanged:

Applicant: Wanna know a way for me to get rid of the pics for good and leave u alone?

Victim: What.

Applicant: I need cash for rent and food so if you VIVE (sic) me some money Ill (sic) leave and delete the pics.

15. The applicant then demanded money from the victim, in differing amounts, of up to $500.00.

16. The messaging continued with the victim attempting to, in effect, stall the applicant’s requests, before telling the applicant that she would be paid the following day. On 27 February 2017, the applicant sent a message to the victim asking if she had been paid. The victim stated that she had not.

17. As a consequence of the victim confiding in a friend about what was occurring, the matter was reported to the police. The victim surrendered her mobile phone to police who undertook an analysis of it, revealing extensive messaging which had taken place between her and the applicant. The applicant was subsequently arrested. Upon his arrest, he also surrendered his mobile phone to police.

The objective seriousness of the offending – findings of the sentencing judge

18. In terms of Count 1, the sentencing judge found that:

1. the number of messages, and the time over which they were sent, were significant, and that the purpose for which they were sent was to procure sexual activity; [1]

2. the level of crudity and specificity in some of the messages was serious; [2]

3. the number of messages, the time over which they were sent, and the persistence of the offender, were indicative of significant criminality; [3] and

4. the objective seriousness of the offending was below the mid-range, although not low-range. [4]

   1. At ROS 6-7.

   2. At ROS 7.

   3. At ROS 7.

   4. At ROS 8.

19. In terms of Count 2 the sentencing judge found that:

1. the photographs were at a low level of specificity, limited in number, and not disseminated by the applicant; [5] and

2. the applicant’s offending was at a low level of objective seriousness, and lower than that in each of Counts 1 and 3. [6]

   5. At ROS 8.

   6. At ROS 8.

20. In terms of Count 3, the sentencing judge found that:

1. the offending was deliberate, and committed with an intention to achieve an outcome of sexual nature; [7]

2. the amount of money sought, although not great in one sense, was significant in terms of the capacity of a 15 year old child to pay it; [8]

3. any attempt to obtain a financial advantage by a threat is serious, and the threat was capable of being carried out in the present case; [9]

4. there were many cases where the amount sought was far greater, and the threats more significant; [10] and

5. in all of the circumstances, whilst not at the lowest level of seriousness, the offending was nevertheless below the mid-range. [11]

7. At ROS 5-6.

8. At ROS 6.

9. At ROS 6.

10. At ROS 6.

11. At ROS 6.

The applicant’s subjective case

21. The applicant gave evidence in the sentence proceedings. He said that some years ago he had disclosed having been sexually assaulted by his step-brother as a child. That disclosure ultimately resulted in the applicant’s step-brother being charged with a number of offences. [12] The applicant told the sentencing judge that he had been under psychological care since about the age of 15, which generally coincided with the time at which he had reported the activities of his step-brother. [13]

    12. T3.44 – T4.16.

    13. Commencing at T5.26.

22. In terms of his offending, the applicant explained that he had met the victim online, in circumstances where they had added each other as “friends” on social media platforms. [14] He explained that having started to communicate with the victim, there had been a break in their communication, but that it had restarted due to his being “probably … like lonely” and needing someone to talk to. [15] The applicant described his mental health at about that time as unstable, and said that he was a person who did not have many friends. [16]

    14. T5.49.

    15. T6.35 – T6.37.

    16. T6.44.

23. When asked what was going through his mind at the time he was sending messages to the victim, the applicant said: [17]

Not a lot went through my mind. When I get in a bad state with my depression and my mental health, I lack a lot of emotions and I struggle to process things and I wasn’t thinking at the time, I just acted, very immature and – yeah.

17. T8.3 – T8.6.

24. When asked how he felt towards the victim in light of the offending, the applicant said: [18]

I felt empathy towards her because, well, I lost a lot of people and stuff due to stupid actions and I can’t imagine how it would have been for her having to go through what I put her through, and especially at such a young age. Like it would be a struggle with her and her family.

18. T8.17 – T8.20.

25. When asked what he would say if he could speak to the victim he said: [19]

I would apologise from the deepest of my heart. What I did was – no words can explain. It’s not something that somebody should have to be put through, because I know how it feels and, yeah, I – it shouldn’t have been done. I feel very remorseful about it.

19. T8.43 – T8.46.

26. The applicant was then taken to the images which he had requested that the victim send him, and his subsequent use of those images to try and extract money from her. [20] When asked why he did that, the applicant said [21] :

At the time I was – we were struggling a bit financially and I tried – I thought over the time it was a good thing and I was helping to get some rent money and that, but – yeah.

20. Commencing at T8.48.

21. T9.10 – T9.12.

27. When asked how he felt generally about his actions surrounding the acquisition of the images, the applicant said: [22]

Firstly I wouldn’t – I couldn’t even imagine how she must have felt, but if it (sic) was in her shoes it would have been just complete and utter like disappointment, she must feel terrible like that someone’s put her through this. It would have affected her socially and with family and stuff as well, and it would not have been easy. It would have been probably one of the hardest things that someone could put someone through. Yeah.

22. Commencing at T10.42.

28. The applicant told the sentencing judge [23] that when his charges were publicised he was subjected to negative comments on social media which culminated in his admission to the Shellharbour Hospital following a suicide attempt. He described his mental state at that time [24] as “very unstable”, giving rise to a feeling that he “didn’t want to live”.

    23. Commencing at T12.12.

    24. Commencing T12.46.

29. There was little challenge in cross-examination to the applicant’s evidence. The applicant freely admitted that he was an active and contributing participant in the exchange of thousands of messages with the victim, [25] and accepted that he knew exactly what he was saying at the time. [26]

    25. Commencing at T16.38.

    26. T17.6 – T17.7.

30. The applicant’s mother also gave evidence before the sentencing judge in relation to various aspects of the applicant’s background. She said [27] that the applicant had first been diagnosed with depression and anxiety at the age of 15, which coincided with the time that he had reported his step-brother’s offending. When asked to describe his mental health at around the time of the offending, the applicant’s mother said: [28]

He wasn’t in a very good place at that particular time. We had – mental health is a very complex, so there’s been lots of changes in his medication, it’s not a quick fix, and there’s been lots of side effects to the medication so he wasn’t at all in a good place mentally at that time of the offence.

27. Commencing at T23.38.

28. T24.38 – T24.43.

31. The applicant’s mother described [29] various events that had occurred when the applicant’s offending became public. They included [30] an incident in which the applicant was assaulted at a petrol station by someone who had become aware of his offending.

    29. Commencing at T25.42.

    30. Commencing at T26.7.

32. A pre-sentence report tendered before the sentencing judge assessed the applicant as being at a medium to low risk of re-offending. He was described as being co-operative in the preparation of the report, and it was noted that he had the ongoing support of both his family and health professionals. The author of the report took the view that the applicant appeared to demonstrate insight into the impact of his offending on the victim.

33. A report of Dr Bradley Jones, Clinical Psychologist, was also tendered in the applicant’s case on sentence. He reported[31] that as a consequence of his father’s gambling issues and alcohol abuse, the applicant’s parents had separated when he was six years of age. Between the ages of 6 and 14 the applicant spent every second weekend with his father and it was during these periods that he was sexually assaulted by his step-brother. The applicant’s relationship with his father broke down when he reported that abuse. Dr Jones diagnosed the applicant as suffering from Post-Traumatic Stress Disorder, as well as Major Depressive Disorder of moderate severity. He expressed the view[32] that at the time of the offending, the applicant had experienced intense arousal and sexually based urges that he was unable to control. He also observed[33] that the offending occurred when the applicant was 18 years of age, and thus at a time when he had not fully matured or developed complete self-regulation. Dr Jones concluded[34] that there was no evidence of any deviant interest(s), sexual pre-occupation or problems in behavioural or emotional self-regulation on the part of the applicant.

    31. Commencing at [10].

    32. At [37].

    33. At [42].

    34. At [43].

34. Also tendered in the applicant’s case was a report of Dr Rodney Ward, Psychologist, who had treated the applicant upon referral from his General Practitioner. Dr Ward reached the same diagnoses as Dr Jones, and reported that the applicant’s scores on clinical testing were in the extremely severe range for both depression and anxiety. He concluded [35] :

… I believe he takes full responsibility for his actions and can see the severity of what has occurred. I believe he has a good rehabilitation prognosis due to his openness and intelligence and family support. He has a good relationship with his mother, sister and grandfather.

35. At p. 1 of his report.

The applicant’s subjective case – findings of the sentencing judge

35. In assessing the applicant’s subjective case, the sentencing judge concluded that the applicant:

1. was remorseful and contrite; [36]

2. was unlikely to offend again, and was capable of maintaining his rehabilitation; [37]

1. had no criminal record; [38]

2. had not been taking medication for his mental health prior to the commission of the offences, had been depressed, and was not thinking clearly; [39] and

3. had suffered a degree of extra-curial punishment as a consequence of (inter alia) the loss of his job and the fact he had been “targeted” by members of the community when his offending had been made public. [40]

36. At ROS 8.

37. At ROS 8.

38. At ROS 8.

39. At ROS 9.

40. At ROS 15-16.

Other relevant findings of the sentencing judge

36. The sentencing judge also found that:

1. the applicant’s offending was not example of what is commonly referred to as “grooming”, in that it did not involve the sophisticated manipulation of a younger victim by a much older offender; [41]

   41. At ROS 16.

2. there was no position of trust as between the applicant and the victim; [42]

   42. At ROS 16.

3. there was no evidence that the applicant had “trawled the internet or chat rooms looking for young girls to talk to”; [43]

   43. At ROS 16.

4. the applicant was 18 years of age at the time of the offending [44] and that it was necessary, in sentencing a young offender, to take into account issues of maturity, lack of experience of life and uncertainty as to how young persons should act in circumstances; [45]

   44. At ROS 16-17.

   45. At ROS 17.

5. the applicant had demonstrated contrition and had co-operated with, and assisted, the authorities upon his arrest by surrendering his mobile phone on which the messages were recorded; [46]

6. the applicant had good prospects of rehabilitation; [47]

7. the applicant was entitled to a 25% discount to reflect the utilitarian value of his early pleas of guilty; [48] and

8. although general deterrence was, generally speaking, a significant issue in offending of this nature, it had a lesser role to play in the case of the applicant. [49]

THE GROUND OF APPEAL – THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE

46. At ROS 17.

47. At ROS 17.

48. At ROS 14.

49. At ROS 12.

Submissions of the applicant

37. Counsel for the applicant, in both his written and oral submissions, took the Court to the various findings made by the sentencing judge. He submitted that the entirety of those findings were favourable to the applicant, and emphasised that a substantial term of imprisonment was nevertheless imposed. The effect of counsel’s submissions was that there was an inexplicable inconsistency between the findings and the sentence, to the point where the former were not reflected in the latter.

38. Counsel for the applicant acknowledged that the offending was serious and that it occurred over a significant period of time. However, he emphasised the applicant’s youth, the evidence of his mental state at the time of the offending, and the sentencing considerations which flowed from those factors. Counsel also stressed those aspects of the applicant’s background to which I have referred, and submitted that on any view, the applicant had had a difficult upbringing, superimposed on which was the diagnosis of serious mental illnesses as a teenager.

Submissions of the Crown

39. The Crown submitted that the offending in Counts 1 and 2 was objectively serious, as evidenced by:

1. the persistence of the applicant’s offending, reflected in the number of messages and the time over which they were exchanged;

2. the fact that the messages were sent by the applicant to procure sexual activity with the victim; and

3. the level of crudity and specificity of at least some of them.

40. The Crown submitted that even though no sexual activity had taken place, the potential for the harm to the victim remained significant, and that such harm was not ameliorated by the fact that the applicant and the victim were close in age.

41. As to Count 3, the Crown emphasised that the actions of the applicant were accompanied by a specific intention to achieve a particular outcome, namely a financial gain.

42. The Crown conceded that the applicant’s youth, and his mental state, were relevant factors on sentence. However, it was submitted that the applicant had acted in a deliberate, persistent and dominating way for his own sexual gratification, and that his conduct was not to be viewed as the immature conduct of a child.

43. The Crown also took issue with the proposition that there was little need to protect the community from the applicant. It was submitted that there remained a paramount public interest in protecting children from sexual abuse.

44. In support of these submissions, the Crown took the Court to a number of other cases involving sentences imposed for offending contrary to s 474.26(1) of the Code, and submitted that the sentences imposed in such cases justified the sentence imposed upon the applicant. The Crown submitted that in all of the circumstances, it was not open to conclude that there must have been some misapplication of principle by the sentencing judge, or that the sentence imposed was so far outside of the range of sentence available that there must have been error.

Consideration

45. In considering whether or not the sentence imposed was manifestly excessive, two matters must be acknowledged at the outset. Firstly, the applicant’s offending was, by its very nature, serious. It occurred over an extended period of time and involved sending multiple messages to the victim, some of which were in the crudest of terms. Secondly, a strong subjective case cannot result in the imposition of a sentence which is not properly reflective of, or which is disproportionate to, the objective seriousness of the offending. [50]

    50. R v Dodd (1991) 57 A Crim R 349.

46. Giving full weight to these matters, I was nevertheless persuaded that the ground of appeal had been made out, and that the sentence imposed was manifestly excessive. I reached that conclusion for a number of reasons.

47. To begin with, the findings of the sentencing judge, both in terms of the objective seriousness of the offending and the applicant’s subjective case, were favourable to the applicant, to the point where there was a considerable displacement between those findings and the sentences which were ultimately imposed. In this regard, three matters were of particular significance.

48. The first was the applicant’s youth. As I have already noted [51] , the applicant turned 18 years of age at the commencement of the period of offending in count 1, which was the most serious of the three counts. Counsel for the applicant pointed out in oral submissions that because it is an element of that offence that the sender of the relevant communication be at least 18 years of age, the applicant would not have committed an offence at all had he not turned 18. That circumstance, in particular, highlighted the applicant’s youth.

    51. At [11] above.

49. The principles which govern the sentencing of youthful offenders are well known. They include the following:[52]

    52. KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 commencing at [22] per McClellan CJ at CL.

1. considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence;

2. in recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation;

3. the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law;

4. allowance will be made for an offender’s youth, and not just his or her biological age; and

5. where the immaturity of an offender is a significant factor in the commission of an offence, the criminality involved will be less than if the same offence was committed by an adult.

50. Importantly, there was unchallenged evidence before the sentencing judge that immaturity had played a part in the applicant’s offending. The report of Dr Jones included the following[53] :

[36]    There are several developmental domains where there is evidence for puberty specific maturation changes. The existing evidence indicates that there are several domains that link more strongly to puberty than age during adolescent development, and most of these are affective measures related to emotion, motivation, arousal and drive systems. These include pubertal changes in romantic and sexual interests. This indicates the primary puberty-specific changes are related to activation of the strong drive, appetites of, emotional intensity and sensation seeking. In contrast, most aspects of cognitive development, including reasoning, logic, and capacities for self-regulation of emotions and drives, are still developing slowly.

[37]   At the time Mr Clarke-Jeffries engaged in the offending behaviour, he was aged seventeen (17) years (sic), having entered puberty when aged (approximately) twelve (12) years. The biological, hormonal and neurological changes associated with this period of development were in process and a state of flux. At the time of the offending Mr Clarke-Jeffries experienced intense arousal and sexual based urges that he was unable to control. The offending behaviour occurred secondary to his general conversations and interactions and were not the main theme of communication.

[38] Essentially with a progressively sexually maturing body and brain system, activated for sexual and romantic interest and passion, Mr Clarke-Jeffries had a relatively immature set of neuro-behavioural systems for self-control and affect regulation. Metaphorically speaking Mr Clarke-Jeffries had the early activation of strong ‘turbo-charged’ feelings with a relative unskilled set of ‘driving skills’ or cognitive ability to modulate strong emotions (sic) motivations.

[39] This ‘disconnect’, during adolescence, is predictive for a broad set of behavioural and emotional problems in navigating complex social situations and attempting to master strong emotions.

53. Commencing at [36].

51. Although the sentencing judge made reference to the applicant’s youth, he made no reference to this particular aspect of the evidence. The fact that he did not do so led me to the conclusion that he failed to take it into account. That evidence was, on any view, important. It established that the applicant was both emotionally and physically immature, and that his immaturity had materially contributed to his offending. It followed that the applicant’s criminality was less than would have been the case if the offending had been committed by an adult. The sentence which was imposed did not reflect those factors.

52. The second matter of significance was the victim’s age. As previously noted, [54] an offence against s 474.26 of the Code is committed only where (inter alia) the victim of the offending is, or the offender believes the victim to be, under the age of 16 years. The victim in the present case was 15 years of age. This was not a case of a person of mature years grooming a much younger victim.

    54. At [4] above.

53. The third matter was the applicant’s mental state. Dr Jones reported[55] that the applicant first began experiencing symptoms of depression as a teenager, secondary to the sexual abuse that he had suffered at the hands of his step-brother. His depression became worse when he made his report to the police, and reached a point where he experienced significant suicidal ideation in November 2017, shortly after his offending. There was an associated history of self-harm.

    55. Commencing at [22].

54. There can be no doubt that the applicant’s mental state formed an important part of his subjective case. He was clearly suffering from a mental illness at the time of his offending and was an inappropriate vehicle for general deterrence[56] . The sentence imposed did not, in my view, reflect this factor having been given the weight that it deserved.

    56. Director of Public Prosecutions (Cth) v Del La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177] per McClellan CJ at CL.

55. I have previously noted that the Crown took this Court to a number of authorities which, it was submitted, supported the conclusion that the sentence imposed was not manifestly excessive. Leaving aside the fact that consistency in sentencing is not achieved by numerical equivalence, the cases relied upon by the Crown were distinguishable from the present case on a number of bases.

56. In R v Gajjar [57] the appellant had pleaded guilty to an offence contrary to s 474.26 of the Code and was sentenced to 2 years and 6 months imprisonment, with a recognisance release order which saw him released after serving 8 months of that term. The applicant in that case was 28 years of age, substantially older than the present applicant. The Court noted[58] that there were several aggravating features associated with the offending in that case, including what was described as that applicant’s “calculated and predatory conduct” which was reflected in his having actively sought out a child in an internet chat room. The Court also concluded[59] that the applicant in that case had “displayed a level of cunning” by initially pretending to be a 20 year old female. None of those circumstances were characteristics of the present applicant’s offending.

    57. [2008] VSCA 268; (2008) 192 A Crim R 76.

    58. At [50].

    59. At [50].

57. In R v Poynder [60] the respondent had pleaded guilty to two offences contrary to s 474.26 of the Code and had been sentenced to imprisonment for 3 years, with an order releasing him on a recognisance after serving 1 year and 3 months. This Court dismissed a Crown appeal against what was said to be the manifest inadequacy of that sentence. The respondent was 50 years of age at the time of the offending, and thus far older than the present applicant. Youth was therefore not a factor on sentence. Further, it was accepted in that case[61] that the sentencing judge had properly referred to all sentencing considerations, including general deterrence. Questions of general deterrence were, for the reasons I have already outlined, of reduced significance in the present case on account of the applicant’s mental illness.

    60. [2007] NSWCCA 157; (2007) 171 A Crim R 544.

    61. At [81].

58. In Moore v R [62] the applicant was 54 years of age and was charged with an offence contrary to s 474.26 of the Code, as well as an offence of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). In respect of the first of those offences, he was sentenced to 4 years imprisonment with a non-parole period 2 years and 6 months. In respect of the second, he was sentenced to a fixed term of 2 years imprisonment. This Court [63] refused the applicant leave to appeal against the sentence imposed on the ground that it was manifestly excessive. The applicant had a previous conviction for the indecent assault of a child under the age of 16 at a time when the victim was under the applicant’s authority. Moreover, the sentencing judge was unable to reach a finding as to the applicant’s prospects of rehabilitation, did not find that he was remorseful, and concluded that he showed little insight into the consequences of his offending and callous disregard towards the victims who were involved. The sentencing judge also concluded that one of the most important considerations for offending of this nature was general deterrence. Those findings were contrary to those reached by the sentencing judge in the present case.

    62. [2018] NSWCCA 26.

    63. Beazley P, Garling J and Hidden AJ.

59. The Crown also referred the Court to the decisions in Tector v R [64] and Gifford v R [65] . All that needs to be said in relation to those decisions was that each of them involved offending which was far more serious, rendering any comparative exercise somewhat futile.

    64. [2008] NSWCCA 151; (2008) 186 A Crim R 133.

    65. [2016] NSWCCA 302; (2016) 263 A Crim R 373

60. For all of these reasons, I concluded that the sentence imposed at first instance was manifestly excessive and the ground of appeal had been made out.

Re-sentence

61. Having found error, it became necessary for this Court to re-sentence the applicant in the fresh exercise of the sentencing discretion[66] . In doing so, I adopted the findings of the sentencing judge [67] .

    66. Kentwell v R [2014] HCA 37; (2014) 252 CLR 601.

    67. Set out above at [19]-[21]; [36]-[37].

62. This Court was asked to take into account, on the question of re-sentence, an affidavit of the applicant’s solicitor of 8 February 2019, annexed to which was a letter of confirmation of the availability of employment on the applicant’s release. The Court was also asked to take into account an affidavit of the applicant of the same date, in which he confirmed that he has had no misconduct charges whilst in custody, and that he is willing to undertake a sex offenders’ programme for which he registered shortly after being sentenced. The applicant also confirmed that he has been taking anti-depressant medication, that his mood has been relatively stable, and that he has had no thoughts of self-harm whilst in custody. He expressed a desire to obtain employment upon his release and said that he proposed to live with his mother because of the support that she offered him.

63. In re-sentencing the applicant it was necessary for this Court to have regard to such of the mandatory factors in s 16A(2) of the Crimes Act 1914 (Cth) as were applicable. In the present case, those factors were as follows.

64. Firstly, the nature and circumstances of the offence[68] are set out above [69] . The entirety of the applicant’s offending fell at the lower end of the scale.

    68. Section 16A(2)(a).

    69. At [10]-[18].

65. Secondly, the applicant expressed unequivocal contrition and remorse for his offending in the course of his evidence before the sentencing judge. [70] His expressions of remorse were not challenged in cross-examination and I had no doubt that they were genuine.

    70. Section 16A(2)(f).

66. Thirdly, the applicant pleaded guilty at the first available opportunity. [71] He was entitled to a discount to reflect the utilitarian value of that plea which I assessed at 25%.

    71. Section 16A(2)(g).

67. Fourthly, the applicant co-operated with the police by handing over his mobile phone in order that it could be examined and its contents assessed. [72]

    72. Section 16A(2)(h).

68. Fifthly, and for the reasons that I have stated, general deterrence assumed reduced significance in the present case. [73]

    73. Section 16A(2)(ja).

69. Sixthly, there was nothing in the evidence which indicated that personal deterrence was a significant factor on sentence. [74]

    74. Section 16A(2)(j).

70. Seventhly, the applicant’s age, background and mental health considerations [75] are set out at length above, [76] all of which were significant factors in mitigation.

    75. Section 16A(2)(m)

    76. At [22]-[35].

71. Finally, the prospects of the applicant’s rehabilitation appeared overwhelmingly positive. [77] Amongst other things, he had the unequivocal support of his immediate family, he had been assessed at a medium to low risk of re-offending, he had employment available to him upon his release and had agreed to undertake the sex offenders’ programme for which he registered in custody.

    77. Section 16A(2)(n).

72. For these reasons I joined in the making of the orders previously set out. [78]

    78. At [8] above.

73. CAMPBELL J: The reasons given by Bellew J are the reasons why I joined in the orders pronounced on15 March 2019.

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Endnotes

Decision last updated: 09 April 2019