DPP (Cth) v Boyles (a pseudonym)
[2016] VSCA 267
•15 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0059
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Appellant |
| v | |
| ROWAN BOYLES (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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| JUDGES: | MAXWELL P, TATE and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 July 2016 |
| DATE OF JUDGMENT: | 15 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 267 |
| JUDGMENT APPEALED FROM: | DPP v Boyles (a pseudonym) (Unreported, County Court of Victoria, Judge Gaynor, date of sentence 16 March 2016, publication of reasons for sentence 8 April 2016) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Using a carriage service to procure a person under 16 years of age for sexual activity, using a carriage service to solicit child pornography material – Sentenced to Community Correction Order for 2½ years – Conditions requiring 250 hours unpaid work, mental health assessment and treatment, judicial monitoring – Specific error – Error acknowledged by judge in written reasons – Whether different sentence should be imposed – Mental illness – Deterioration of respondent’s mental state – Adverse effect of Crown appeal – Respondent at liberty – Residual discretion exercised – Appeal dismissed – R v Gajjar (2008) 192 A Crim R 76; Director of Public Prosecutions (Cth) v Hizhnikov (2008) 192 A Crim R 69 distinguished, Western Australia v Collier (2007) 178 A Crim R 310; R v Nahlous (2013) 228 A Crim R 503 considered – Criminal Code (Cth) ss 474.26(1), 474.19(1)(iv) – Criminal Procedure Act 2009 s 289(1).
CRIMINAL LAW – Appeal – Sentence – Sentencing approach in Boulton v The Queen inapplicable to Commonwealth offences – Whether judge took into account principles in Boulton v The Queen – No error – Atanackovic v The Queen (2015) 45 VR 179, Boulton v The Queen (2014) 46 VR 308 considered.
CRIMINAL LAW – Appeal – Sentence – Crown appeal – Residual discretion to dismiss appeal even where error identified – Adverse impact of appeal on respondent offender – Offender at liberty – Purpose of Crown appeals – Director of Public Prosecutions v Karazisis (2010) 31 VR 634; CMB v Attorney-General (NSW) (2015) 256 CLR 346 considered.
CRIMINAL LAW – Sentencing – Sentencing principles – Mental illness – Moral culpability – Offender suffering from bipolar disorder – Manic state – Causal link to offending – Whether moral culpability reduced – Whether involuntary impairment of mental functioning – Offender stopped taking prescribed medication – Offender aware of adverse effects of stopping medication – No reduction in moral culpability – Verdins v The Queen (2007) 16 VR 269 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms W J Abraham QC with Ms K Breckweg | Mr M Pedley Solicitor for Public Prosecutions (Cth) |
| For the Respondent | Mr M D Phillips with Mr R De Vietri | Victoria Legal Aid |
MAXWELL P
OSBORN JA:
Introduction
On 15 March 2016, Rowan Boyles[2] (‘RB’) appeared before the County Court and entered pleas of guilty to two charges. He was sentenced later that same day. The two offences were:
[2]To ensure that there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
(a) using a carriage service to procure a person under 16 years of age for sexual activity, contrary to sub-s 474.26(1) of the Criminal Code (Cth); and
(b) using a carriage service to solicit child pornography material, contrary to sub-s 474.19(1)(iv) of the Criminal Code (Cth).
The maximum penalty for each offence is 15 years’ imprisonment.
RB was sentenced to a Community Correction Order (‘CCO’) for a period of two and a half years. The special conditions included in the CCO required that he:
(c) perform 250 hours of unpaid community work over a period of 30 months;
(d) undergo mental health assessment and treatment, which might include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed;
(e) participate in programs and/or courses that address factors relating to the offending behaviour, as directed; and
(f) attend for judicial monitoring every six months.
RB was also ordered to comply with reporting obligations under the Sex Offenders Registration Act 2004 for a period of 15 years.
The Commonwealth Director of Public Prosecutions has appealed against the sentence on the ground that it is manifestly inadequate. Section 16A(1) of the Crimes Act 1914 (Cth) provides:
In determining the sentence to be passed, or the order to be made, in respect of any person for a Federal offence, the court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
The Director also contends that the judge erred in her application of R v Verdins,[3] and in applying what was said in Boulton v The Queen[4] to sentencing for Commonwealth offences.
[3](2007) 16 VR 269 (‘Verdins’).
[4](2014) 46 VR 308 (‘Boulton’).
For the reasons set out below, we have concluded that:
(g) the sentencing judge erred in treating RB’s mental illness (bipolar disorder) as reducing his moral culpability;
(h) a different sentence should have been imposed upon RB at first instance; but
(i) in the exercise of the Court’s residual discretion, we would not interfere with the sentence imposed.
The appeal must therefore be dismissed.
As will appear, when RB committed these offences he was in a manic state, that being one manifestation of bipolar disorder. The judge concluded that, because of the causal link between his mental illness and the offending, RB’s moral culpability was reduced. In pronouncing sentence, her Honour made specific reference to that mitigating factor.
In reasons published subsequently, however, the judge stated that this conclusion had been erroneous. There could be no reduction in mental culpability, her Honour said, because RB’s manic state had resulted from his own decision to cease taking the medication which had been prescribed for him.
As these reasons will show, her Honour was right to conclude that there was no reduction in moral culpability. Since, however, the sentencing decision was expressly based on a consideration which her Honour later acknowledged was erroneous, the ground of specific error is made out.
RB remains seriously unwell, however. A supplementary expert assessment reveals that his condition has worsened significantly as a result of the institution, and the pendency, of the Director’s appeal. That is a matter which bears directly on the exercise of the Court’s residual discretion to dismiss a Director’s appeal even where a ground of appeal is made out.[5]
[5]DPP v Karazisis (2010) 31 VR 634, 652 [73] (‘Karazisis’). See further below at [69]ff.
It is also relevant that, by the time the appeal come on for hearing, RB had been at liberty for four months and had been complying with the CCO which the judge imposed. There is a clear public interest in ensuring RB’s continued rehabilitation. In these circumstances, we have concluded that it would not be just to interfere with the sentence.
Facts
RB was aged 26 at the time of the offending. He was employed at a not-for-profit organisation which gathers up unwanted food and redistributes it to charities. The organisation provides training and employment to disengaged youth, long-term unemployed and people with disabilities.
Under the auspices of her high school, the victim (‘N’) commenced a work experience placement at the organisation on 15 January 2015. She had just attained 15 years of age. RB was introduced to her as one of her supervisors on her first day.
At 4:50 pm that afternoon, RB began sending messages to N via Facebook. He sent 51 messages that day. Over the next month, until 19 February, RB sent N 311 Facebook messages.
On the first day, RB ascertained N’s age and told her his age. At 5:48 pm, he asked ‘R u ok with me send u naughty pics? [sic]’. At 7:32 pm, he asked, ‘But I am asking would u fuk me? [sic]’ and ‘Would you suck me off? [sic]’.
RB repeatedly asked N to engage in various forms of sexual activity with him. He also suggested that N would benefit at work from having a sexual relationship with him. He offered her favours and gifts, such as buying her cigarettes, lunches and marijuana, if she had sex with him or sent him nude photographs.
Eventually, N was pressured into sending a photograph to RB. In her statement to police, N said that this was not a photograph of herself but a photograph she had found of someone else wearing a bra and that she had pretended that it was a photograph of herself.
On 28 January 2015, RB sent N a photograph of himself naked with an erect penis.
On 13 February 2015, N confided in one of her teachers that she was receiving rude and inappropriate messages from RB. Some days later, she attended a police station with that teacher and gave an account of what had occurred.
Grounds of appeal
As noted earlier, the Director relies upon three grounds of appeal, as follows:
Ground 1: The learned sentencing judge erred when determining the appropriate sentence by adopting the approach to sentencing in Boulton when this has no applicability to sentencing for Commonwealth offences.
Ground 2: The learned sentencing judge erred in sentencing RB on the basis that the first limb of Verdins was enlivened.
Ground 3: The sentence imposed was manifestly inadequate.
We deal with ground 2 first.
The Verdins error
During the course of the plea hearing, the sentencing judge discussed, first with defence counsel and then with the prosecutor, the question of whether the offender’s moral culpability should be regarded as diminished because, at the time of the offending, he suffered from a mental impairment.
Her Honour had before her a report from a psychologist, Ms Gianvanni, who described the history of RB’s bipolar disorder as follows:
When he was 24–25 [RB] was diagnosed with Bipolar by a psychiatrist … after his father was diagnosed with this disorder ‘[a] few years ago’ (‘he told me I should go and check whether I had it as well … and then I started to see the signs and it was not until six months later that I realised that maybe dad was right after all that maybe I had it too’). When asked to describe his experience of Bipolar, [RB] disclosed the following information: ‘I had lots of up days and down days … down days I would sit on the couch and eat food and do nothing … just being lazy … could go for half an hour to a week … my up days could last a month to two months … I would clean the house for example … mum would set me a task and there would be one or two tasks and I just kept doing that for the whole day and then I clean the whole house … that would occupy all day and keeping my mind at ease at least … I like to gamble … I gambled every Saturday and still do … I used to spend a lot of money … I used to spend more money tha[n] I should of or had … I would blow my Centrelink payment off on clothing that dad said I didn’t need … now I put money away in the bank for holidays in Queensland’.
RB stated that whilst on medication he still experiences ‘ups and downs but the downs are not as down as they used to be’, he has not had ‘one down for a while now’ and the ‘ups are good now ‘cause it makes me do things good things like not sitting on the couch’. He admitted however that his compliance to his medication since being prescribed with it has not been regular and prior to being charged with the index offences he would often ‘stop and then start again’. It should be noted, as previously indicated, that RB has experienced suicidal ideations whilst non-medicated. RB reported to take Valpro now ‘religiously’ and has ‘no intention whatsoever to ever stop again’ (‘I’ve seen what it does to me … no way I’m gonna take it and that’s it’).[6] Ms Gianvanni recorded that RB was not taking the prescribed medication at the time of the offending.
The facts of this case are known to the Court. [RB] disclosed to the writer that he ‘added [N] on Facebook two weeks after’ he commenced working at the [not-for-profit organisation]. According to his self-disclosure, initially they started ‘chit-chatting’ (‘hey how are you? How was your day? Are you enjoying your work and things like that’) but eventually ‘something triggered and it turned into what it did’. [RB] denied being sexually attracted to the victim but sincerely reported ‘not really knowing or being unable to pinpoint what [he] really wanted out of it’. [RB] indicated that at the time the offences were committed he was not compliant to his medication regime (‘it was on and then off and then on and then off and then on again … ‘cause I was taking it and then figured I didn’t want to take it or needed to take it ‘cause I was feeling better … I had headaches and got thinking I’d [b]etter take it but then I would think no I don’t wanna take it … it was a constant battle’).[7]
[6]Report of Ms Elle Gianvanni, Forensic Psychologist, The Forensic Mind Consultancy, dated 17 November 2015, paras 5.11 and 5.12.
[7]Ibid para 6.1.
She further confirmed that RB’s clinical presentation was consistent with a diagnosis of bipolar disorder:
Clinically, to date [RB] presented with emotional and psychological disturbances as well as behaviour patterns that are consistent with a diagnosis of Bipolar Disorder according to the DSM-5. The writer was not able to ascertain, however, whether [RB’s] symptomatology meets diagnostic criteria for Bipolar I or Bipolar II Disorder. Based on available information, it appears that he might be suffering from Bipolar I with Melancholic Features, as he appears to have been experiencing both manic and hypomanic episodes prior to being medicated; however, further information needs to be gathered to confirm or disconfirm this diagnosis.[8]
[8]Ibid para 10.4 (citations omitted).
Ms Gianvanni ultimately concluded:
The index offences appear to be have been committed primarily in a context of experiencing mood swings (psychosymptomatology) and manic/hypomanic episode(s) due to being non-compliant with his psychotropic medication. It is also possible that a degree of sexual frustration has also contributed to his offending behaviour, though it is speculated that his need for social and emotional intimacy at the time was more predominant. [RB’s] untreated bipolar (manic/hypomanic episode(s)) has most likely disinhibited him and led him to cross the boundaries (engaging in sexualised conversation with an underage female), despite being intellectually aware that what he was doing was morally and legally wrong. [RB] is deeply ashamed of his offending behaviour and since then he has not missed a medication nor does he have an intention to do so in the future. The commission of the offending behaviour in question is highly uncharacteristic of him, considering the lack of any evidence of antisocial behaviour, criminal and non-criminal, prior to the index offences.[9]
[9]Ibid para 11.3.
Ms Gianvanni also concluded, on the basis of the application of risk assessment tests, that RB was in the ‘moderate–low risk’ category for sexual recidivism. Her own opinion was that he was at low risk of sexual recidivism.
In an addendum to her report, Ms Gianvanni further addressed the impact that imprisonment might have on RB. She expressed the opinion that, if he were to be imprisoned, his mental health would be adversely affected and his psychological condition would deteriorate:
[RB] appeared to be an emotionally immature and naive young man who has lived most of his life socially isolated, at home with his mother; he presented with very limited social and interpersonal skills. This makes him a vulnerable individual within a prison environment as he might be subjected to bullying and/or aggressive/violent behaviour whilst incarcerated as well as being exposed to uncomfortable situations like antisocial behaviour, which he is unaccustomed to. This and incarceration itself (no longer living with his mother, who is his only source of interpersonal connection and security) would undoubtedly impact on his psychological wellbeing thereby aggravating his depressive symptoms.
[RB] has a history of withdrawing and isolating himself when exposed to bullying behaviour and/or difficult situations or negative emotions (depressive symptoms). He would most likely engage in similar coping strategies if he were to be bullied, exposed to overwhelming emotions, or uncomfortable situations like antisocial behaviour whilst incarcerated. Isolation would have a significant adverse effect on RB’s mental health.
Considering his tendency to mask, diminish, or deny his psychosymptomatology or at least the severity of this, it is also likely that [RB] might not report or under-report his mental health symptoms to and/or might not engage effectively in psychological services, if offered to him. This would impact on his prognosis and ability to improve his mental health.
Additionally, [RB] has a history of suicidal ideations and attempts in the context of heightened depressive symptoms due to ceasing his psychotropic medication; his likelihood of experiencing suicidal ideations and intents in a context of aggravated psychosymptomatology caused by incarceration is therefore increased and this could potentially lead him to attempt suicide whilst imprisoned.[10]
[10]Addendum dated 10 March 2016, paras 3.1.2 to 3.1.5.
The prosecutor did not apply to cross-examine the psychologist but submitted that her report should be treated with caution, as it was based on only one interview with RB eight months after the offending. The expert’s opinion — that the offending occurred in the context of bipolar disinhibition — should be viewed as speculative.
Relying on the psychologist’s statement that RB was ‘intellectually aware that what he was doing was morally and legally wrong’, the prosecutor submitted that his moral culpability should not be viewed as reduced. At the same time, the prosecutor accepted that the fifth and sixth limbs of Verdins might have application.[11] That is, it was open to the judge to conclude that, because of his mental illness, RB would suffer a greater burden than the average prisoner if imprisoned and that there was a serious risk that his mental illness would be aggravated by imprisonment.
[11]The reference is to propositions 5 and 6 set out at (2007) 16 VR 269, 276 [32]. In these reasons, the shorthand ‘Verdins 5’ will be used.
In the course of the plea hearing, her Honour questioned RB directly. She confirmed that he took sodium valproate by way of medication. She ascertained that he did not suffer side-effects from the medication. When her Honour asked why he had stopped taking his medication, RB replied that at the time he did not think the medication was doing anything and he had gone off it for roughly a period of a maximum of two months. RB confirmed that he had been put on the medication in 2013 and that he had actually found it to be of benefit. He said that he knew that he should take the tablets. When pressed as to why he had ceased taking them, he said ‘largely silliness, your Honour.’ There is a ring of truth to these answers.
In the course of defence counsel’s submissions, her Honour said:
[He’s] got a mental illness that disinhibits you and it would seem to fit with — I mean it’s unrestrained in terms of the huge number of messages and it’s extremely traceable. So I will hear from the prosecutor but [Verdins 1] seems to me to have some application.
In response to the prosecutor’s submission that moral culpability was not reduced, the judge said:
With respect, if someone’s got a mental illness, and it’s not diagnosed, your capacity to exercise the sort of control that most people are able to — we all wander around saying we know something is wrong — the problem with a mental illness [is] it gets in the way of the capacity to put into place the sorts of controls … that are required.
Subsequently, her Honour said to the prosecutor:
Now, I think what is interesting and what I’m interested in is the disinhibition factor that Ms Gianvanni talked about. It seems to me a rare case really that the moral culpability of Verdins can be established but it seems to me that there are some legs … that if he is wandering around — and he needs to understand he needs to take his medication, I’m not very impressed with the reason for not but if he’s got untreated bipolar and he’s gone into a manic episode, and it would seem all this offending’s occurred within a short period of time, there’s a huge number of messages in that period of time that would seem to fit with a period of manic activity where his capacity to monitor himself and behave in an appropriate way is undermined. … We’re talking about control mechanisms that have been undermined by essentially an organic brain malfunction which isn’t being treated.
It seems clear that her Honour ultimately accepted Ms Gianvanni’s opinion. In our view, there was no error in doing so. It was, on its face, a careful and full report, consistent with the evidence as a whole and confirmed in material points by the judge’s direct questioning of RB. Nor was there any challenge on the appeal to her Honour’s conclusion that the nature of the offending behaviour ‘would seem to fit with a period of manic activity where his capacity to monitor himself and behave in an appropriate way is undermined.’
It is the next step in her Honour’s reasoning which is problematic, namely, whether the circumstances in which RB offended could be said in truth to reduce his moral culpability. Importantly, there had been no submission by the prosecutor, nor any question from the judge, raising the question subsequently referred to in the published reasons, namely, whether RB could rely on Verdins 1 in circumstances where, as his counsel had readily acknowledged, he had not been compliant with his medication at the time of the offending.
The judge gave oral reasons for sentence, saying that she had decided a CCO was appropriate because of:
(j) the position in which the offending sat on the range of gravity;
(k) the application of ‘the first, fifth and sixth limbs’ of Verdins;[12]
[12](2007) 16 VR 269.
(l) RB’s very early plea of guilty and general cooperation with police (whilst recognising that the record of interview contained only partial admissions);
(m) RB’s lack of prior convictions; and
(n) the prospects for rehabilitation.
At the time of pronouncing sentence, her Honour foreshadowed handing down full written reasons. Reasons were subsequently published, in which her Honour stated as follows:
Your counsel submitted that your bipolar disorder was capable of enlivening Verdins’ principles 1, 2, 5 and 6. During the plea hearing, I accepted limbs 1 and 2 has application in your case. I was wrong in that conclusion. Whilst I accept the psychological opinion that you offended in a state of disinhibition brought about by your voluntary cessation of your medication, the authorities make it clear that those who cease taking their medication knowing it may adversely affect them, cannot then seek to take advantage of limbs 1 and 2 of Verdins if they offend whilst so affected.[13]
[13]DPP v [Boyles] (Unreported, County Court of Victoria, Judge Gaynor, date of sentence 16 March 2016, publication of reasons for sentence 8 April 2016) [16] (‘Reasons’).
The Director now submits that the sentencing judge made the error which she herself acknowledged, namely, that she regarded RB’s bipolar disorder as reducing his moral culpability (ie the first limb of Verdins) and as bearing on the kind of sentence which should be imposed and the conditions in which it was to be served (ie the second limb of Verdins).
RB submits that there was no error in the initial conclusion that his moral culpability was reduced. He further submitted that the course subsequently taken by the judge effectively denied him the opportunity to address the issue of ‘voluntary cessation of medication’ and its significance for the applicability of Verdins 1.
Conscious as we are of the heavy burdens borne by sentencing judges in the County Court, we are nevertheless persuaded that this was such a significant change in the basis of the decision — reflecting a view diametrically opposite to that which her Honour had expressed on the plea — that defence counsel should have been given a further opportunity to address her Honour before she finally decided the point. Although defence counsel had had a full opportunity to make oral and written submissions directed at Verdins 1, nothing which occurred on the plea would have led counsel to anticipate that the cessation of medication would be viewed as a disqualifying factor.[14]
[14]Cf Humphries v The Queen [2010] VSCA 161 [10].
In the event, however, the failure to afford defence counsel that opportunity does not affect the outcome of this appeal. Counsel for RB was afforded the opportunity on this appeal to make submissions as to why her Honour’s original view on Verdins 1 was correct and her ultimate conclusion erroneous. For reasons set out below, we consider that her Honour’s ultimate conclusion was correct. As a result, specific error is made out.
The impairment of mental functioning must be involuntary
It seems clear on the evidence that RB knew that, if he did not take his medication, he was likely to be adversely affected. During the plea hearing, when the judge asked him directly about the medication, RB said that:
·he did not have side effects from the medication;
·the medication was of benefit to him; and
·when he went off his medication, mood swings would return and ‘I know I should be taking my tablets’.
RB summed up the position as follows:
When I go back on them they work. When I go off them they don’t work so I’ve just got to get in the routine of taking them knowing they are beneficial for my goodness.
On the hearing of the appeal, counsel for RB submitted that there was nonetheless some reduction in moral culpability because the choice to abstain from taking medication was itself made by someone suffering from bipolar disorder. There are fundamental evidentiary problems with this submission. Neither the psychologist’s report produced on behalf of RB, nor RB himself in answering to direct questioning from the judge, attributed his decision to discontinue taking medication to the underlying disorder. Conversely, the judge established by direct questioning that RB knew that the medication was to his benefit. The psychologist’s report further outlined the circumstances in which he became aware of his diagnosis by a psychiatrist and that he suffered major mood swings when he was not medicated. He had taken his medication ‘religiously’ since the offending.
Where Verdins 1 is relied on in mitigation, the offender must establish that his mental functioning was impaired involuntarily. That is, his ability to reason or make decisions was adversely affected by a mental condition beyond his control, such that he should be regarded as less morally culpable for the offending than someone who had not been so affected.
In the present case, the fundamental cause of the active bipolar state in which RB committed the offences was his own choice not to take medication prescribed by a specialist medical practitioner.[15] He well knew the nature of the condition he was suffering from and he knew that, in the absence of medication, his mood and behaviour might be affected.
[15]See Wright v The Queen [2015] VSCA 333 [43]–[45].
This sentencing error raised a matter of principle that needed to be addressed for the guidance of sentencing courts. Consistently with what this Court said in Director of Public Prosecutions v O’Neill,[16] it was the type of specific error properly raised on a Crown appeal. There being error in the sentence, we turn to consider whether a different sentence should be imposed.
[16][2015] VSCA 325 [106]–[107]. See also, Green v The Queen (2011) 244 CLR 462, 477 [36] (French CJ, Crennan and Kiefel JJ).
The adequacy of the sentence
The Director submits first that intermediate appellate authority throughout Australia makes clear that an immediate term of imprisonment is ordinarily required for offending of this type.[17]
[17]R v Gajjar (2008) 192 A Crim R 76, 85–6 [61]–[63]; DPP (Cth) v Hizhnikov (2008) 192 A Crim R 69, 74 [26]–[27] (‘Hizhnikov’); Western Australia v Collier (2007) 178 A Crim R 310, 321 [43]; R v Burdon; Ex parte A-G(Qld) (2005) 153 A Crim R 104, 108–9.
Secondly, it is submitted that the offending was aggravated by a number of circumstances, as follows:
(o) N was a child aged 15 years, and RB was aware of her age;
(p) there is an age difference of 11 years between RB and N, which represented a material imbalance in maturity;
(q) RB was N’s supervisor on a work placement program, which she was undertaking as part of her secondary school education. He occupied a position of significant trust and relative power in relation to N, which he exploited;
(r) the offending occurred in circumstances where RB repeatedly suggested to N that she would benefit at work if she had a sexual relationship with him and offered her a series of inducements if she agreed to have sex with him and/or sent him nude photographs of herself;
(s) the offending was predatory and opportunistic. RB first contacted N online at 4:50 pm on the evening of the first day she commenced the work placement;
(t) a material number of messages sent to N were sexually explicit and grossly offensive;
(u) the messages requested sexual penetration which was itself a criminal offence;
(v) the offending was aggravated by RB sending N a photograph of himself naked with his erect penis clearly visible;
(w) the offending was not an isolated or spontaneous incident. There was ongoing and persistent communication with N between the period between 15 January to 19 February with 311 Facebook messages sent during this period, a number of which focussed on RB asking N to meet him to engage in sexual activity;
(x) children online are vulnerable and communications such as occurred in the present case have ‘… serious potential to corrupt’ and can carry long term serious consequences;
(y) the offending ‘had a very grave effect upon the victim, particularly as she herself was vulnerable and disadvantaged.’ A victim impact statement tendered to the Court without objection, pursuant to s 16AAA of the Crimes Act 1914 (Cth), and written by the victim’s mother described personal difficulties which had developed since the offending;
(z) RB did not cease offending voluntarily until he was dismissed from his employment;
(aa) offending of this nature is clandestine and may be difficult to detect.
We accept these submissions. Because of this combination of features, RB’s offending must be regarded as a serious example of the first offence charged. We agree with the Director that RB’s abuse of his position of power and authority was a particularly important factor in aggravation.
The offence of soliciting child pornography consisted of repeated requests to the victim to send RB a sexually explicit photograph of herself. It fell at the lower range of seriousness of such offending.
RB submits that the sentencing judge was clearly aware of, and took into account, all of the features of the offending to which the Director refers. The sentencing judge also took into account the matters personal to RB, as she was required to do, and these supported moderation of penalty:
I now turn to your personal circumstances. You … are now 27 years of age. You are the only child of your father and mother. Your father worked as a cleaner and factory hand, but suffers chronic back, elbow and shoulder injuries and is now on the Disability Support Pension while awaiting surgery for these ailments. Your mother is employed at a Secondary College as a first aid officer. She is disabled and relies on a mobility scooter.
Your parents separated when you were aged 13-14 years. You lived with your mother following the separation and continue to live with her. You have been her carer for the past two years. In a character reference provided by your mother, she confirms that she cannot walk around on her own and you therefore complete the housework and assist her with accessing her mobility scooter. Your mother also confirms that you assist your grandmother with shopping. Your counsel did not submit that this family hardship constituted exceptional circumstances. Your father resides in Swan Hill and you only have occasional telephone contact.
You attended a local primary school up until year 6 and report having no friends due to your behavioural problems. You enjoyed sport but failed in most other subjects. … Your counsel informed the court that you struggled and left mid-way through year 10.
Having left school, you commenced work at a horseracing track on a full-time basis for one year. At around 18 years of age, you commenced a volunteer position at a football club. During this time, you also completed a two year Personal Training course at TAFE and achieved a Certificate II in Sport.[18]
[18]Reasons [10]–[13].
In summary, RB:
·was naïve, immature, and relatively youthful at the time of the offending, being 26 years of age;
·had no prior criminal history, no matters pending and no allegations of subsequent offending;
·came from a broken family and had a relatively limited education. He hopes to find employment as a sports trainer;
·had pleaded guilty and had expressed a high level of remorse and regret;
·had engaged in a number of community activities; and
·cared for his mother, who suffered from a disability limiting her mobility.
Furthermore, as we have noted, the prosecutor expressly conceded at the plea that Verdins 5 and 6 were relevant. The concessions were properly made, having regard to Ms Gianvanni’s opinion as to the burden of imprisonment and the probability that imprisonment would have a significant adverse effect on RB’s mental health. The prosecutor qualified the concessions by submitting that RB would receive therapy and medication whilst in prison. In a robust exchange, the judge (correctly, in our view) doubted that RB would receive appropriate psychotherapy in prison.
Her Honour also doubted that he would necessarily receive his medication because of the possibility of intervening criminal behaviour by other prisoners. In our respectful view, a sentencing court should ordinarily proceed on the basis that a prisoner will receive his/her prescribed medication. Putting this aspect to one side, however, the operation of Verdins 5 and 6 did raise material considerations in RB’s case.
RB further submits that:
·whilst intermediate appellate authority indicates that an immediate term of imprisonment is often required in a case of this kind, sentences other than immediate imprisonment can be adequate;[19]
·the victim in this offence was 15 years old, which is the oldest age to which the offence of procuring applies;
·the existence of an actual victim cannot be said to aggravate the offence; and
·the offending in this case was not difficult to detect. RB was known to the victim. There was no deceit or attempt to conceal his identity in any way.
[19]R v Nahlous (2013) 228 A Crim R 503 (‘Nahlous’); DPP v Walls [2014] VSCA 323.
Dealing with these matters in reverse order, we accept that this offending was not deceitful or difficult to detect, as RB made no attempt to shield his identity from the victim.
The existence of an actual victim is, however, a material factor. The fact that N was under age and in a subordinate relationship with RB was part of the vulnerability upon which he played. That affects his moral culpability.[20] And the harm caused to N must also be taken into account.[21] Whether it is properly to be characterised as an aggravating factor need not be decided.
[20]Section 16A(2)(d).
[21]Section 16A(2)(e) and (ea).
As to N’s age, if she had been younger this would have been an aggravating factor. On the other hand, the fact that she was 15 years old cannot be said to be a mitigatory circumstance.
As regards intermediate appellate authority, we accept the statement in Hizhnikov that:
a person who uses the internet in an attempt to procure a child to have sexual contact with him will ordinarily expect to receive a term of immediate imprisonment. This is simply a reflection of the seriousness with which the courts must view such conduct. Deterrence, both general and specific, will be the paramount consideration when sentencing an offender for an offence of this type.[22]
[22]Hizhnikov (2008) 192 A Crim R 69, 74 [27].
We should point out, however, that Hizhnikov, and each of the authorities referred to in it, involved what are sometimes called ‘chatroom cases’. In Tector v The Queen,[23] the New South Wales Court of Appeal set out the following extract from the Explanatory Memorandum to the relevant provisions, which described the typical pattern of conduct to which the provisions would apply:
Proposed sections 474.26–474.29 contain an offence regime targeting adult offenders who exploit the anonymity of telecommunications services (for example, the Internet) to win the trust of a child as a first step towards the future sexual abuse of that child. The practice is known as ‘on-line grooming’.
There are two steps routinely taken by adult offenders leading up to a real life meeting between adult and child victim that results in child sexual abuse:
(i)The adult wins the trust of a child over a period of time. Adults often use ‘chat rooms’ on the Internet to do this. They may pose as another child, or as a sympathetic ‘parent’ figure. Paedophiles reportedly expose children to pornographic images as part of this ‘grooming’ process. It is proposed to specifically criminalise this practice. Specific offences would remove any doubt about whether ‘on-line grooming’ of a child before actual contact is ‘mere preparation’ (ie, not a criminal offence) or an unlawful attempt to commit child sexual abuse.
(ii)With the child’s trust won, adults often use telecommunications services to set up a meeting with the child. Although this step is more likely to be characterised as an attempt to commit child sexual abuse, than step (i), it is desirable to provide a firm justification for police action by enacting specific ‘procurement’ or ‘solicitation’ offences. This is consistent with the underlying rationale for the new offences: to allow law enforcement to intervene before a child is actually abused.[24]
[23](2008) 186 A Crim R 133 (Hall J, Giles JA and Barr J agreeing).
[24]Ibid 147 [85].
As defence counsel correctly submitted on the plea, the present case was not of that kind. There was no hunting for potential victims, no adoption of a false persona in order to win the trust of an intended victim. Where those features of predation and deceit are present, they obviously make offending of this kind more serious.
The present case bore a much closer similarity to Nahlous,[25] which involved next door neighbours. There, as here, the victim knew who the offender was and was aware of his age. In that case, over 1700 messages were sent in six days. In addition, no meeting was specifically arranged — although meetings were suggested — for the purpose of RB engaging in sexual activity with the victim. The offender in Nahlous was sentenced to 18 months’ imprisonment, wholly suspended on condition that he entered a recognisance release order of three years’ duration. The Court of Criminal Appeal was not persuaded that the sentence was manifestly inadequate.
[25](2013) 228 A Crim R 503.
On the other hand, the solicitation in the present case was repeated and made in the crudest terms. It was also accompanied by the sending of a naked image of RB. Further, as senior counsel for the Director submitted, use of the internet:
·enabled RB to communicate with N in sexually explicit terms which he would not have used in a face-to-face conversation;
·facilitated a barrage of messages which extended beyond the working hours in which the RB and N would otherwise have had contact; and
·facilitated the exchange of photographic images.
In a fundamental sense, therefore, the nature of the communication materially exacerbated the impact upon the victim.
While we accept that there may be atypical cases in which a non-custodial sentence would be appropriate, we have reached the conclusion that, in the present case, the nature of the offending taken as a whole demanded such a sentence (albeit of relatively short duration) if the offending was to be adequately denounced, RB adequately punished and adequate weight to be given to the factors of general and specific deterrence.
In so concluding, we have taken into account RB’s relative youthfulness and immaturity, his pleas of guilty, his expressions of remorse, the probability that imprisonment will be unusually burdensome for him and is likely to aggravate his mental illness, and the fact that, if he complies with his medication, his prospects of reoffending are relatively low. We have also taken into account the sentencing alternatives available to the sentencing judge.
The Boulton error
Given our conclusion with respect to ground 2, it is strictly unnecessary to deal with ground 1. Nevertheless, for completeness, we should state our conclusions with respect to it.
In Atanackovic v The Queen,[26] this Court held that the sentencing approach articulated in Boulton was not applicable to Commonwealth offences. At the same time, the sentencing judge was obliged by s 17A(1) of the Crimes Act 1914 (Cth) to apply the principle of parsimony and, in particular, to consider the non-custodial alternatives to a sentence of imprisonment. That subsection provides as follows:
A court shall not pass a sentence of imprisonment on any person for a federal offence … unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.[27]
It is not in dispute that a CCO is an available non-custodial option.
[26](2015) 45 VR 179.
[27]Crimes Act 1914 (Cth).
In the course of the plea hearing, the sentencing judge, at different points, referred to the guideline judgment in Boulton.[28] In addition, when requesting a pre-sentence report concerning the suitability of RB for a CCO, she referred to s 5 of the Sentencing Act. In her written reasons, however, the judge did not refer to Boulton[29] nor make reference to any statement of principle from the guideline judgment.
[28](2014) 46 VR 308.
[29]Ibid.
We are not persuaded that her Honour erred by applying irrelevant principles by reference to Boulton.[30]
[30]Ibid.
Manifest inadequacy
For the reasons we have explained, a different sentence should have been imposed by the judge. In these circumstances, it is unnecessary to resolve whether the sentence imposed fell so short of the mark as to be manifestly inadequate.
Residual discretion
It was common ground that, on a Director’s appeal, the Court retains a residual discretion not to interfere with the decision of a sentencing judge even when satisfied that an error has occurred in sentencing and that a different sentence should have been imposed. The onus rests with the Crown to negate any reason why the residual discretion should be exercised.[31]
[31]CMB v A-G (NSW) (2015) 256 CLR 346, 359 [34], 370 [66].
The proper exercise of the residual discretion will depend upon the circumstances of the particular case. A variety of factors may support the conclusion that it would not be just to vary the sentence first imposed despite the appeal court’s conclusion that it was inadequate.[32]
[32]Karazisis (2010) 31 VR 634, 658 [104] (Ashley, Redlich and Weinberg JJA).
One such factor is the effect of the appeal process upon the respondent offender. In Bui v Director of Public Prosecutions (Cth), the High Court held that the principle of double jeopardy was not applicable to appeals brought by the Commonwealth DPP.[33] Nevertheless, evidence may be adduced of actual anxiety and distress which an offender suffers as a result of the institution of a Director’s appeal.[34] Such evidence goes to the ‘mental condition’ of the person, within the meaning of s 16A(2)(m) of the Crimes Act 1914 (Cth).
[33](2012) 244 CLR 638, 651–3 [21]–[23], [28].
[34]Ibid 652 [24].
A further factor which may support the exercise of the residual discretion is the offender’s prospects of rehabilitation. In Director of Public Prosecutions v Borg,[35] this Court said:
Among the matters that may legitimately be taken into account are the fact that the imposition of a relatively short, actual custodial period would not justify the interruption of SB’s rehabilitation, and reintegration into society. It is no easy thing to imprison a young man who has received a non-custodial sentence and has satisfactorily been performing his obligations under the CCO for some months.[36]
Given RB’s emotional immaturity and naivety, this factor remains relevant, notwithstanding that he is several years older than the respondent in that case.
[35]DPP v Borg [2016] VSCA 53.
[36]Ibid [118].
In Karazisis, Ashley, Redlich and Weinberg JJA emphasised that the residual discretion must be exercised having regard to the state of the evidence as at the date of determination of the appeal:
Rehabilitation has always been regarded by this court as an important factor in determining whether to interfere with a sentence that was designed to enhance its prospects. This applies as well to custodial sentences which are ordered to be served in less punitive ways than actual imprisonment. For example, an offender who has been sentenced to a term of imprisonment, to be served by way of an intensive correction order, may already have completed a good part of that sentence by the time the Crown appeal is heard. That is plainly a matter to be accorded considerable weight in determining whether the court should, in the exercise of its residual discretion, dismiss such an appeal. Rehabilitation will also play its part in the sentencing discretion in the event that the court resolves to intervene and impose a different sentence.
In that regard, it should be noted, as one commentator has said, that:
… when an offender appeals against an allegedly excessive sentence the court concerns itself almost exclusively with circumstances presented to the trial judge whereas when the Crown appeals the court also shows great interest in what has happened since imposition of sentence. To this extent the review of a lenient sentence is in some ways analogous to choice of a sentence following breach of a bond or of a probation order
…
In other words, a Crown appeal does not require the appellate court to put itself back in the position of the original court at the moment of conviction. The appellate court must deal with the offender in the light of the circumstances which exist at the hearing of the appeal, and not those which existed when the offender was first convicted.[37]
[37]Karazisis (2010) 31 VR 634, 659–60 [112]–[114] (citations omitted).
Supplementary psychological assessment
In the present case, counsel for RB applied at the hearing of the appeal for leave to file an up-to-date psychological assessment. Consistently with the principles we have referred to, and with the consent of counsel for the Director, we granted that leave.
A further report was obtained from Ms Gianvanni (dated 13 September 2016) for the purposes of reassessing RB’s psychological state. Ms Gianvanni again interviewed RB, thereby incidentally addressing one of the Director’s criticisms of her initial report, namely, that it should be treated with caution because it was based upon one consultation only.
In the course of the assessment, Ms Gianvanni administered a series of psychometric tests.[38] She summarised her clinical findings as follows:
Results of this psychological evaluation have indicated that [RB] is currently experiencing psychosymptomatology, which in his case is manifesting as physical, cognitive, and affective symptoms of depression. These symptoms are currently experienced within the severe range. [RB] also reported experiencing stress related symptoms. It should be noted that, during his previous assessment, [RB’s] depressive symptoms were assessed to be within the moderate range whilst his stress related symptoms were within the mild range. As such, there has been a worsening of his psychological symptoms, which is congruent with his presentation and narrative during the current clinical interview. RB’s deterioration of his mental health should be assessed in the context of his ongoing legal order [scil ‘ordeal’] where he has experienced ongoing distress and feelings of uncertainty whilst waiting to be sentenced and currently, due to his sentence being appealed. As indicated in the previous report, [RB] was diagnosed with Bipolar Disorder in 2013 and subsequently prescribed with Valpro to address this condition. It was the writer’s opinion at the time the previous assessment was conducted, that [RB] presented with emotional and psychological disturbances as well as behaviour patterns that were consistent with a diagnosis of Bipolar Disorder, according to the DSM-5. Based on evidence available to date, it is the writer’s opinion that [RB] still presents with emotional and psychological disturbances as well as behaviour patterns that are consistent with a diagnosis of Bipolar Disorder. During the current assessment, nil evidence of risk-enhancing factors were detected by the writer; there has been no negative changes in [RB’s] life to date that could or might increase his chance of recidivism whilst serving his community sentence, despite being exposed to stress in the last few months, in the context of his ongoing legal ordeal.[39]
[38]Beck Depression Inventory, 2nd Edition; Depression and Anxiety and Stress Scale; Beck Anxiety Inventory; The Static-99; The Risk for Sexual Violence Protocol; and Structured Assessment of Protective Factors for violence risk – 2nd Version.
[39]Report of Ms Elle Gianvanni, Forensic Psychologist, The Forensic Mind Consultancy, dated 20 September 2016 (citations omitted).
As can be seen, the report confirms an underlying diagnosis of continuing Bipolar Disorder, with recurrent symptoms of depression. The diagnosis is relevant to an assessment of the probable effects of imprisonment upon RB and upon his ongoing prospects of rehabilitation. It is likely that RB would suffer more than the average person from the burden of imprisonment and that imprisonment would aggravate his mental health problems. It should be noted that this opinion is not premised upon any risk of interruption in medication consequent upon imprisonment. Rather it is directed to the probable effects of incarceration upon RB’s depression even if his medication is maintained.
The report also confirms that the appeal process has adversely affected RB’s mental state:
[RB’s] mood appeared to be dysphoric with congruent affect and his facial expression revealed signs of distress and sadness. When asked about his presentation and mood, [RB] disclosed experiencing psychosymptomatology [depressive symptoms] related to his diagnosis of Bipolar and this has progressively worsened over time in the context of his legal ordeal. He indicated in fact that his psychological distress over the last year, since he has been charged with his offending and whilst going through Court hearings/processes, has progressively worsened, predominantly due to the distress and feelings of uncertainty experienced whilst waiting to be sentenced and currently, due his sentence being appealed. Regarding neurovegetative symptoms, [RB] reported experiencing sleeping difficulties namely difficulties falling asleep and oversleeping; increased appetite, though this might be related to his current psychotropic medication, at least partially; decreased motivation and concentration; anhedonia; and feelings of hopelessness, helplessness, guilt, and shame. [RB] disclosed that three weeks prior to the current assessment being conducted, he experienced suicidal ideations where he felt he ‘didn’t wanna be here anymore’. He indicated that he spent nearly a whole week in bed, ‘didn’t move didn’t want to do anything go anywhere’ and the only reason he did not attempt to take his own life was to avoid hurting his mother (‘I don’t wanna hurt mum ‘cause I know if I do it she’ll be very upset and I don’t wanna do that to her but I don’t wanna be here so it’s not easy … I don’t know what it was something triggered it … it’s just getting a bit too much for me’).[40]
[40]Ibid para 4.1 (citations omitted).
Finally, the report confirms the psychologist’s view that RB’s likelihood of recidivism is low and that he would be best helped in understanding and responding to his mental health condition if he receives individual treatment. Such treatment is likely to be facilitated by a community disposition.
In our view, these matters taken in combination lead to the conclusion that the Court should exercise its residual discretion in this case. In summary, RB has suffered material anxiety and distress as a result of the Director’s appeal. This constitutes an additional punishment to that constituted by his original sentence. His current depressive condition is worse than when he was sentenced and, in turn, the prognosis is that the effects of imprisonment upon him will also be more adverse than those which were in evidence at the time of his original sentence. His prospects of rehabilitation are also better in that he has progressed further without reoffending or failing to take his medication.
There has been some delay in the disposition of this appeal as a result of the leave granted to RB to obtain and lodge the supplementary reports he now relies on. At the time this leave was granted the Court made clear that the consequent delay could not be relied upon as a factor supporting the exercise of the residual discretion. The matters referred to above, however, go significantly beyond the fact of delay.
The report from the community corrections officer records that RB has been assessed by the Specialised Offender Assessment and Treatment Service as suitable for the Better Lives Program. He has also participated in community work. The report states in conclusion:
In summary, [RB] has engaged well with all conditions on his order, to date, and has presented to his case manager with a respectful attitude during reporting appointments. He still has 217.30 hours of community work remaining, is yet to commence his Better Lives Program and is still required to be engaged with mental health care services, as per his order conditions.[41]
[41]Report of Jayden Stirrup, Community Corrections Officer, dated 7 September 2016.
We accept, as the Director submits, that mere compliance with the conditions of a non-custodial order cannot of itself alone provide a proper basis for the exercise of the residual discretion, but this is not such a case. The evidence as to compliance with the CCO adds to and complements the further report of Ms Gianvanni.
On the material before the sentencing judge, a period of some months’ imprisonment was the appropriate sentence. In the circumstances which now present to this Court, however, we would exercise our residual discretion not to interfere with the sentence imposed in the County Court.
That sentence will impose obligations upon RB for a far longer period than would the sentence of imprisonment which would originally have been appropriate. It will also require him to fulfil his obligations under a CCO to participate in community work and to accept appropriate treatment and participate in appropriate programs. He will also remain subject to judicial monitoring.
For the reasons we have given, the residual discretion should be exercised having regard to the stress, anxiety and consequent depression which RB has suffered as a result of the appeal process and the increased likelihood that he will suffer disproportionately if imprisoned with adverse effects upon his mental health.
The Director has not persuaded us to the contrary. The primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing.[42] In the present case, that purpose can be met, notwithstanding the exercise of the residual discretion, by the identification of the error of principle which occurred at first instance and the consequent inadequacy of the sentence there imposed.[43]
[42]Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ); Green v The Queen (2011) 244 CLR 462, 465–6 [1], 477 [36] (French CJ, Crennan and Kiefel JJ); CMB v A–G (NSW) (2015) 235 CLR 346, 359 [35] (French CJ and Gageler J), 368 [63] (Kiefel, Bell and Keane JJ).
[43]Karazisis (2010) 31 VR 634, 646 [42]–[43]. See, eg, DPP v Borg [2016] VSCA 53; DPP (Cth) v Watson [2016] VSCA 73.
Conclusion
In all the circumstances, the appeal should be dismissed.
TATE JA:
I have had the benefit of reading, in draft form, the joint reasons of Maxwell P and Osborn JA. I agree, for the reasons their Honours give, that it is appropriate in the circumstances of this case to exercise the residual discretion of the Court in a Crown appeal not to interfere with the sentence imposed by the sentencing judge despite the errors that were made.[44] In that context, I consider that it is of significance that the primary purpose of Crown appeals against sentence is to ‘lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons’.[45]
[44]CMB v A-G (NSW) (2015) 256 CLR 346 (‘CMB’).
[45]Green v The Queen (2011) 244 CLR 462, 465-6 [1] (‘Green’) (French CJ, Crennan and Kiefel JJ, citing Griffiths v The Queen (1977) 137 CLR 293, 310 (Barwick CJ)). See also Green 477 [36]; CMB (2015) 256 CLR 346, 366 [55] (Kiefel, Bell and Keane JJ).
I wish to add some observations of my own about the serious nature of the offending.
RB pleaded guilty to two offences involving the use of the internet for sexual exploitation. He sent multiple crude messages via Facebook to the victim (N) to induce her to engage in sexual activity with him. N had only just turned 15 years of age. RB also sent messages via Facebook seeking to persuade N to send naked photographs of herself. The messaging occurred from the first day N worked under RB’s supervision. The messaging was ongoing and persistent. Over the course of about a month RB sent 311 Facebook messages to N. In doing so, he committed the offences of using a carriage service to procure a person under 16 years of age to engage in sexual activity, contrary to sub-s 474.26(1) of the Criminal Code (Cth), anusing a carriage service to solicit child pornography material, contrary to sub-s 474.19(1)(iv) of the Criminal Code (Cth), respectively.
The criminal culpability attached to this type of conduct hinges particularly on the use of the internet as its vehicle. This was confirmed in R v Fuller[46] where the New South Wales Court of Criminal Appeal increased the sentence of a Roman Catholic priest found guilty of using the internet to procure sexual activity from someone who turned out to be a fictitious underage online identity created by the police. McClellan CJ at CL (with whom Hislop J and Barr J agreed) emphasised that the internet provides opportunities for sexual predatory behaviour to occur, most especially where the communication is anonymous, unlike the circumstances here. He said:
It is important to appreciate that the offence is constituted by the use of a carriage service to transmit a communication to another person with the intention of procuring the recipient to engage in or submit to sexual activity, the recipient being a person whom the sender believes to be under 16 years of age. …
The internet has produced many benefits for the community but has also brought some problems. One of those problems is addressed by s 474.26 of the Commonwealth Criminal Code. The offence is made possible because the internet provides access to communicate with others anonymously. Tragically, experience has shown that it is not uncommon for immature persons, particularly females, to explore the internet and accept communications from adults who are seeking sexual encounters with children. Because a child can access and navigate the internet without the supervision of a responsible adult, the opportunity for a sexual predator to identify a potential victim is significant. If communication is made, the harm to the young person may be considerable, even if sexual activity does not ultimately occur. Of course, the potential for harm will be greater if sexual activity does take place.
It is for these reasons that the legislature has made it an offence to use the internet to procure a young person to engage in or submit to sexual activity.[47]
[46][2010] NSWCCA 192.
[47]Ibid [24]–[26].
He also observed that, while the harm done by the offending is greater if there is an actual victim (as here), the primary purpose of the legislature in creating the offence is to prohibit the use of the internet for sexual exploitation of young persons:
Although an offence may be more serious when communication is made with an actual child and harm is done to that child, the primary object of the legislature in creating the offence was to prohibit the use of the internet by persons intent upon communicating with young persons for sexual purposes.[48]
[48]Ibid [35].
As senior counsel for the Director of Public Prosecutions (Cth) submitted, the communication of unwanted sexual advances made over the internet is of a different character from communications that may be made face to face. This is because the internet provides a forum which, by reason of the electronic ‘distance’ between parties, facilitates uninhibited communication. It also facilitates great frequency of communication often (as here) without the interruption of a response. In turn this enables the sending of graphic messages of a level of crudity and sexual confrontation between people who are strangers, or little more than strangers, which is unlikely to occur face to face. Such uninhibited and frequent communication is apt to be used for inducing a minor to engage in sexual activity. The legislature has determined that when the internet is used for that purpose, the communication it facilitates is to be prohibited.
It is not essential that the internet is used as the means by which communication is first established. As the circumstances here demonstrate, grave harm to an underage victim can occur when the internet is used for sexually predatory purposes even where the offender and the victim meet in the ordinary circumstances of a workplace. As Steytler P of the Western Australian Court of Criminal Appeal (with whom McLure and Miller JJA agreed) observed in Western Australia v Collier,[49] with respect to a similar type of offending, the ‘paramount public interest [lies in] protecting children from sexual abuse’.[50]
[49](2007) 178 A Crim R 310 (‘Collier’).
[50]Ibid 321 [43].
Were it not for the special circumstances applicable to RB here, most especially the probable effects of incarceration upon RB’s depression and mental health and his low risk of recidivism, as described by Maxwell P and Osborn JA in their reasons, I would consider it necessary to impose a sentence of immediate imprisonment. As acknowledged in Collier,[51] not to impose a sentence of immediate incarceration in the ordinary case would fail to take sufficient account of the seriousness of the offending.
[51]Ibid.
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