Kannis v R

[2020] NSWCCA 79

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Kannis v R [2020] NSWCCA 79
Hearing dates:	19 March 2020
Date of orders:	24 April 2020
Decision date:	24 April 2020
Before:	Johnson J at [1] N Adams J at [317] Ierace J at [318]
Decision:	1. Grant leave to appeal against sentence. 2. Quash the sentences imposed upon the Applicant at the Sydney District Court on 4 June 2019. 3. In their place, sentence the Applicant as follows: (i)   for the offence in Sequence 1, a fixed term of imprisonment for seven months commencing on 4 June 2019 and expiring on 3 January 2020; (ii)   for the offence in Sequence 3, imprisonment for 16 months commencing on 4 June 2019 and expiring on 3 October 2020; (iii) for Sequence 4, taking into account the offence in Sequence 10 under s.16BA Crimes Act 1914 (Cth), imprisonment for 18 months commencing on 4 August 2019 and expiring on 3 February 2021; (iv)   for Sequence 9, imprisonment for 18 months commencing on 4 October 2019 and expiring on 3 April 2021; (v)   with respect to each of the sentences for Sequences 3, 4 and 9, direct that the Applicant be released by way of recognizance release order on 3 May 2020, after serving 11 months’ imprisonment, upon the Applicant entering into a recognizance to be of good behaviour for a period of three years; (vi)   a recommendation is made that the Applicant undergo psychological or psychiatric counselling as part of his recognizance; (vii) confirm the forfeiture order made on 4 June 2019 under s.23ZD Crimes Act 1914 (Cth) with respect to the Applicant’s iPhone 6 seized by police on 27 March 2017.
Catchwords:	APPEAL - sentence - applicant pleaded guilty to child pornography and grooming offences - offences of using carriage service to solicit child pornography material contrary to s.474.19(1)(a)(iv) Criminal Code (Cth) (two offences), using carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) (one offence) and possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW) (one offence) - offence of using carriage service to menace, harass or cause offence contrary to s.474.17(1) Criminal Code (Cth) taken into account on sentence under s.16BA Crimes Act 1914 (Cth) - 18-year old applicant committing offences against young victims - objective gravity of offences - finding by sentencing judge that applicant’s mental condition and immaturity reduced moral culpability with less weight to be given to specific deterrence and general deterrence - fulltime custodial sentence imposed with applicant to be released on recognizance release order after 15 months - alleged failure to consider whether alternative to fulltime imprisonment was available for Commonwealth offences - error not demonstrated - alleged failure to give any weight to utilitarian value of guilty pleas for Commonwealth offences - error not demonstrated - alleged erroneous reliance upon other sentencing decisions to identify sentencing range in manner which failed to give effect to findings favourable to applicant - error established - other sentencing decisions dissimilar to applicant’s case in significant respects - other sentencing decisions did not identify sentencing range - principles to be applied in use of other sentencing decisions on sentence - resentencing of applicant under s.6(3) Criminal Appeal Act 1912 (NSW) - objective gravity of offences - harm done to child victims of cybersex offences - offences involved real victims and not police officer posing as a child - applicant manipulated, threatened and humiliated victims - troubled and immature 18-year old offender - applicant’s moral culpability reduced and lesser role for specific and general deterrence - fulltime custodial sentence nevertheless appropriate - applicant resentenced to imprisonment to be released after 11 months on recognizance release order
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code (Cth) Children (Criminal Proceedings) Act 1987 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) District Court Rules 1973 (NSW) Crimes Act 1958 (Vic)
Cases Cited:	Adamson v R (2015) 47 VR 268; [2015] VSCA 194 Bae v R [2020] NSWCCA 35 Cooper v R [2012] VSCA 32 Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 Director of Public Prosecutions v SJK and GAS [2002] VSCA 131 Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 Fedele v R (2015) 257 A Crim 78; [2015] NSWCCA 286 Ghalbouni v R [2020] NSWCCA 21 Gilshenan v R [2019] NSWCCA 313 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Martin v R [2019] NSWCCA 197 Meadows v R [2017] VSCA 290 Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140 Puhakka v R [2009] NSWCCA 290 R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316 R v Borkowski (2009) 195 A Crim R; [2009] NSWCCA 102 R v Costello [2011] QCA 39 R v Dinh (2010) 199 A Crim R 573; [2010] NSWCCA 74 R v Engeln [2014] QCA 313 R v Fuller [2010] NSWCCA 192 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 R v McGrath (2006) 2 Qd R 58; [2005] QCA 463 R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Rampley v R [2010] NSWCCA 293 The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Yildiz v R [2020] NSWCCA 69 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Texts Cited:	---
Category:	Principal judgment
Parties:	Orion Kristopher Kannis (Applicant) Regina (Respondent)
Representation:	Counsel: Mr KD Ginges (Applicant) Mr LA Fernandez (Respondent)     Solicitors: The Law Shoppe (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2017/92817
Publication restriction:	---
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 04 June 2019 Before: Her Honour Judge Culver File Number(s): 2017/92817

Judgment

1. JOHNSON J: By Notice of Application for Leave to Appeal filed on 29 January 2020, the Applicant, Orion Kristopher Kannis, seeks leave to appeal against sentences imposed at the Sydney District Court on 4 June 2019 for a number of child pornography and grooming offences under the Criminal Code (Cth) and the Crimes Act 1900 (NSW).

2. As will be seen, the Applicant’s offences involved communications by him with girls, at least some of whom were aged 14 years. The victims will be referred to by pseudonyms in this judgment to maintain the protection against identification to which each is entitled at law: s.15A Children (Criminal Proceedings) Act 1987 (NSW). Without wanting to depersonalise the victims, the pseudonyms will utilise letters of the alphabet.

3. This is an unusual case where a troubled and immature 18-year old committed, between August 2016 and March 2017, serious cybersex offences involving real victims whom he manipulated, threatened, humiliated and embarrassed for his own purposes. The issues raised by the appeal involve consideration of sometimes conflicting purposes of sentencing which arise when a young offender is sentenced for serious offences committed against other young persons.

The Offences and Sentences

4. Following pleas of guilty, the Applicant was sentenced for offences set out in the following table:

Count and Offence	Maximum Penalty	Sentence Imposed
Sequence 1 - On 27 March 2017, possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW)	Imprisonment for 10 years	Fixed term of imprisonment for eight months commencing on 4 June 2019 and expiring on 3 February 2020
Sequence 3 - Between about 17 and 20 March 2017, use carriage service to solicit child pornography material (Victim A) contrary to s.474.19(1)(a)(iv) Criminal Code (Cth)	Imprisonment for 15 years	Imprisonment for 18 months
Sequence 4 - Between about 17 and 20 March 2017, use carriage service to solicit child pornography material (Victim B) contrary to s.474.19(1)(a)(iv) Criminal Code (Cth)	Imprisonment for 15 years	Imprisonment for 21 months
Sequence 9 - Between about 22 October 2016 and 2 November 2016, use carriage service to groom person under 16 years for sexual activity (Victim C) contrary to s.474.27(1) Criminal Code (Cth)	Imprisonment for 12 years	Imprisonment for 21 months

5. When passing sentence for the offence in Sequence 4, the Applicant requested the Court to take into account under s.16BA Crimes Act 1914 (Cth) a further offence:

Count and Offence	Maximum Penalty	Sentence Imposed
Sequence 10 - Between about 8 August 2016 and 26 October 2016, use carriage service to menace, harass or cause offence (Victims D, E, F and G) contrary to s.474.17(1) Criminal Code (Cth)	Imprisonment for three years if prosecuted separately	This offence was taken into account on sentence for the offence in Sequence 4

6. Her Honour stated that the sentences for Sequences 3, 4 and 9 were “indicative sentences” for the purpose of an “aggregate sentence” of imprisonment for two years and six months commencing on 4 June 2019 with the Applicant to be released on 3 September 2020, after serving 15 months’ imprisonment upon him entering into a recognizance in the sum of $1,000.00 to be of good behaviour for three years.

7. The sentencing Judge recommended that the Applicant undergo psychological counselling as part of his recognizance and that, whilst in custody, he be entered into the Young Offenders’ Program.

8. The hearing was conducted in this Court upon the basis that aggregate sentencing (under s.53A Crimes (Sentencing Procedure) Act 1999 (NSW)) applies to State offences only and that there is no provision for aggregate sentencing for Commonwealth offences. Rather, where sentences of imprisonment for several Commonwealth offences do not exceed three years in the aggregate, and the offender is not already serving a sentence for a Commonwealth offence, a sentencing court must make a recognizance release order in respect of those sentences and must not fix a non-parole period: s.19AC(1) Crimes Act 1914 (Cth).

9. The parties approached the appeal upon the basis that the total effective sentence for the Commonwealth offences and the State offence comprised imprisonment for two years and six months commencing on 4 June 2019 and expiring on 3 December 2021 with the Applicant to be released by way of recognizance release order after 15 months’ imprisonment on 3 September 2020 upon entering a recognizance to be of good behaviour for a period of three years.

10. This Court has determined that aggregate sentencing under s.53A Crimes (Sentencing Procedure) Act 1999 (NSW) is available where a court is to impose sentences for several Commonwealth offences: Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [141]-[146]. In particular, Price J (Basten JA and Walton J agreeing) said at [145]-[146]:

“145   The Commonwealth Director submitted that based on the decision in Putland [(2014) 218 CLR 174; [2014] HCA 8], aggregate sentences are available in New South Wales for offenders prosecuted for two or more Commonwealth offences on indictment, by application of s 53A of the Crimes (Sentencing Procedure) Act. The respondent did not take issue with the Commonwealth Director’s submission.

146   The Commonwealth Director’s submission is soundly based. There does not appear to be any good reason for concluding that s 53A does not apply to Commonwealth offences dealt with on indictment in New South Wales.”

11. Accordingly, aggregate sentencing was an available option in this case for the Commonwealth offences. However, the problem with the form of sentencing orders in this case arises from the formal entry of orders made in JusticeLink, which constitutes the official record of the sentencing orders: Part 53 Rule 12 District Court Rules 1973 (NSW); Ghalbouni v R [2020] NSWCCA 21 at [45]. According to JusticeLink, a separate sentence of imprisonment for 30 months was imposed for each of Sequences 3, 4 and 9 with each sentence to be partially suspended after 15 months. That does not appear to have been the intention of the sentencing Judge. Rather, her Honour nominated terms of imprisonment for each of Sequences 3, 4 and 9 with a process of notional accumulation to operate giving rise to an aggregate sentence of 30 months.

12. If this Court finds error has been demonstrated and moves to resentence the Applicant, the sentencing orders of this Court will need to accord with the provisions of the Crimes Act 1914 (Cth).

Grounds of Appeal

13. The Applicant relies upon the following grounds of appeal:

1. Ground 1 - That the learned sentencing Judge erred in failing to consider whether an alternative to fulltime imprisonment was available in sentencing the Applicant for the Commonwealth offences.

2. Ground 2 - That the learned sentencing Judge failed to give any weight to the utilitarian value of the Applicant’s guilty plea in the sentences imposed for the Commonwealth offences.

3. Ground 3 - That the learned sentencing Judge erred by inappropriately sentencing the Applicant “consistently with other offences of like kind”, thereby failing to give effect to her earlier findings that the Applicant’s moral culpability was reduced and the sentencing purposes of specific and general deterrence had been moderated in his case.

Facts of Offences

14. An Agreed Statement of Facts was tendered at the sentencing hearing from which the following account is drawn.

15. The Applicant was born in May 1998 and was aged 18 years at the time of the offences committed between August 2016 and March 2017. The offences involved the Applicant’s interaction with a number of girls, at least some of whom were then aged 14 years.

16. The offences will be described in chronological order. In doing so, it will be necessary to include the text of some messages which passed between the Applicant and the victims. This is appropriate to allow an understanding of the tone and content of the Applicant’s communications and the impact of his messages upon the victims. However, it is also important that the insertion of messages in this judgment not operate to re-traumatise the victims by reminding them (and readers of the judgment) of the full detail of the personal and embarrassing messages which passed between each of them and the Applicant. A balance should be struck in the context of messages to be quoted with these objects in mind.

Sequence 10 - Use Carriage Service to Menace, Harass or Cause Offence Between 8 August 2016 and 26 October 2016 - Offence Taken into Account on Sentence for Sequence 4 Offence

17. The offence under s.474.17(1) Criminal Code (Cth), which was taken into account on sentence for the Sequence 4 offence, involved contact by the Applicant between August and October 2016 with persons who will be referred to in this judgment as Victims D, E, F and G.

18. It is necessary to include examples of the Applicant’s communications with these girls to permit an understanding of their menacing, harassing and offensive content.

Communications with Victim D

19. Between about 10.54 am and 11.40 am on 8 August 2016, the Applicant and Victim D sent text messages to each other via iMessage. The Applicant spoke to Victim D from his mobile telephone.

20. The Applicant identified himself as “John”. He explained that he needed videos and pictures so that he could put a profile together for Victim D to obtain modelling jobs. The Applicant said that the videos were “private and confidential” and were to be deleted once the profile information was obtained. The conversation continued:

Victim D:    What kind of jobs?

Applicant:    Modelling jobs.

Victoria’s Secret, sea folly and heaps of others.

21. The Applicant told Victim D that she had “10 minutes to send the video as [he would] be leaving the office”. He said in graphic terms that she should “make it dirty” and that this was her “last chance to impress”.

22. At 11.13 am, Victim D sent the Applicant a movie of her performing sexual acts.

23. The Applicant replied saying “we need another video” as the first one “wasn’t dirty enough”. Victim D declined, but the Applicant pressed her saying “Are you serious” and “I was literally about to transfer 50,000 dollars to you”.

24. Victim D asked “What would you do if I didn’t do it?’ to which the Applicant responded “Probably post your video worldwide … so I suggest you get moving”. Soon after, Victim D said “I am not okay with this so if you do posted around the world you can get in very big trouble without my permission”.

25. The Applicant responded “Times almost up … I don’t care I’ve done it before, my lawyers are pretty powerful … I’ll get away with it … now hurry up”.

26. Victim D replied “Please don’t do this”. The Applicant than commenced a countdown “10, 9, 8, 7, 6 …” in the course of which Victim D said “No. … Stop … No”. The Applicant said “Are you going to send it … or what?”.

27. As the above extracts illustrate, the Applicant’s communications with Victim D were menacing, harassing and offensive.

Communications with Victim E

28. At about 2.37 pm on 17 October 2016, the Applicant started chatting with Victim E on the social media application “Kik” from his mobile telephone. The Applicant requested photographs of her legs from the hips down.

29. Victim E sent one photograph of her legs from the knee down and one photograph from waist down.

30. The Applicant sent one photograph of an unknown male with no shirt on and one photo of an unknown female from the waist down wearing underwear with the caption “like that aha x”.

31. The conversation proceeded:

Victim E:    Ummm I feel uncomfortable now.

Applicant:    Why?

…

32. Victim E sent a photograph depicting her stomach and waist with clothes on, but the Applicant urged her to send a more revealing photograph

33. Victim E sent a photograph depicting her stomach and waist with clothes on. Once again, the Applicant pressed Victim E to send a more sexually explicit photograph of herself. Victim E replied “I’m not going to do it if I don’t like being used for my body”. The Applicant then offered to pay her “big money” and Victim E replied “No you can keep it. I ain’t like those other girls who would … I’m sorry I can’t continue on”.

34. The Applicant replied “Fine then I’m gonna post ur pics everywhere then”. Victim E said “Please don’t” and the Applicant replied “If u make me feel good I won’t post any … make me feel good”.

35. Victim E sent a photograph depicting her stomach and waist with underwear showing above shorts. The Applicant pressed her for more revealing photographs saying “I promise I’ll delete them all and won’t post them if you turn me on”.

36. Victim E sent a photograph depicting her stomach and waist with shorts pulled lower, exposing more underwear. Again, the Applicant insisted that she send more revealing photographs.

37. The Applicant counted down from 10. Victim E sent a photograph depicting her stomach and waist with shorts pulled lower, exposing more underwear. The Applicant pressed Victim E to send “dirtier” photographs.

38. Victim E sent a photograph depicting her exposed stomach and underwear. The Applicant then insisted, in graphic terms, that Victim E send a video of her masturbating. The Applicant told Victim E that she should “moan” whilst performing sexual acts to which Victim E replied, “Can I please not do videos and I can’t be loud. I’ll get in trouble.” The Applicant replied, “Nope I need videos. DW about moaning tho”. The Applicant told Victim E, in explicit terms, what acts she should perform.

32. Victim E sent a photograph depicting her exposed stomach and underwear with her hand on top of her underwear resting between her legs. Victim E expressed her clear distress in response to the repeated pressure being placed upon her by the Applicant. For his part, the Applicant responded seeking more graphic photographs.

33. The Applicant counted down from 10 whilst speaking to Victim E in sexually explicit terms.

34. Victim E sent a photograph depicting her exposed stomach and underwear with her hand on top of her underwear, resting between her legs. The Applicant pressed her to continue, to which Victim E replied “Please no that’s too far for me” to which the Applicant replied “Do it”.

35. Once again, the Applicant counted down from 10. Victim E responded “Ok hold on”. The Applicant said “I’m posting them right now”. No further chatting occurred on 17 October 2016.

36. The Applicant tried to contact Victim E again on 20 October and 29 October 2016. She did not respond.

37. As the above extracts illustrate, the communications with Victim E were menacing, harassing and offensive.

Communications with Victim F

45. At 8.53 am on 20 October 2016, the Applicant started chatting with Victim F on the social media application “Kik”. The Applicant used “Kik” on his mobile telephone.

46. The Applicant requested dirty photographs from Victim F.

47. Victim F sent the Applicant six photographs of her waist down wearing only underwear.

48. The Applicant sent Victim F 10 photographs of his penis.

49. Victim F said "Man I gotta block u” to which the Applicant replied “Don’t u dare block me … You’ll see then … I’m posting all ur pics n stuff everywhere”. Victim F replied “No don’t”. The Applicant said “I’m posting all ur videos and pics … unless you continue on snap chat”.

50. The conversation ceased at approximately 9.23 am on 20 October 2016.

51. As these excerpts illustrate, the communications with Victim F were menacing, harassing and offensive.

Communications with Victim G

52. On 26 October 2016, the Applicant and Victim G chatted to each other via the social media application “Kik”. The Applicant used “Kik” on his mobile telephone.

53. The Applicant asked for a picture of Victim G and said he would send her one of his penis. Victim G said the Applicant “can wait” and the Applicant replied “Fine then … I’ve hacked ur kik so I know ur IP address … Wait until ur parents know about the pics”.

54. Soon after, the Applicant said “You want ur parents to see?” and Victim G said “No but u being rude and mean”. The applicant pressed Victim G to send photographs saying that, if photographs were sent, he would “delete our whole convo”.

55. At about 8.55 am, Victim G sent a photograph of her waist down wearing no underwear. The Applicant demanded a more sexually explicit photograph be sent by Victim G.

56. At about 8.58 am and 9.07 am, Victim G sent two photographs of her vagina. The Applicant demanded an even more explicit photograph. Victim G declined.

57. The conversation ceased at about 9.16 am on 26 October 2016.

58. As these excerpts illustrate, the communications with Victim G were menacing, harassing and offensive.

Sequence 9 - Use Carriage Service to Groom Person Under 16 Years (Victim C) for Sexual Activity Between 22 October 2016 and 2 November 2016

59. Between about 22 October 2016 and 2 November 2016, the Applicant and Victim C sent text messages to each other via iMessage. The Applicant chatted with Victim C from his mobile telephone.

60. On 22 October 2016, the Applicant messaged Victim C and requested photographs of her legs. She declined and said she did not have a camera.

61. Victim C indicated to the Applicant the suburb in which she was living. The Applicant responded “we should do something soon x… would u come to mine ? and cuddle ?...What would u wanna do xx”.

62. In the ensuing electronic conversation, the Applicant enquired, in sexually explicit terms, about masturbation and whether the girl was a virgin. Victim C told the Applicant she was 14 years old. He told her he was 18 years old and said he was keen to meet with her.

63. The Applicant then instructed her, in explicit terms, how to masturbate while he explained what sexual acts he imagined he was performing on her and what her excited response would be to his acts. As he was saying these things to Victim C, the Applicant asked how it was feeling and whether she was excited sexually.

64. Demonstrating an awareness that what he was doing was wrong, the Applicant then insisted that Victim C delete the conversation:

Applicant:    Please delete this after ok?

Promise me.

And show me you’ve deleted it ok x.

…

Delete it and prove to me it’s deleted.

…

Please baby delete it x.

65. Victim C then sent the Applicant a photograph showing that she had deleted the conversation.

66. On 24 October 2016, Victim C told the Applicant that she would turn 15 in 2017 and that she was required to repeat Year 7. The Applicant responded that he would help her academically. In the ensuing conversation, the Applicant stated that he wanted to meet with Victim C so that they could have sex.

67. On 25 October 2016, the Applicant suggested that he and Victim C meet that day. He outlined the sexual acts they might perform including his intention to teach her how to masturbate.

68. On 28 October 2016, the Applicant enquired whether Victim C could engage with him sexually and she replied that she was not able to do so.

69. On 30 October 2016, the Applicant told Victim C to send him photographs, but she declined to do so.

70. The Applicant told Victim C he had bought her an iPhone 7 and “Victoria’s Secret stuff”. He said he would deliver the gifts to her once she sent him an explicit photograph. Victim C replied that she had no camera. The Applicant suggested, in explicit terms, the sexual acts which they could perform. Victim C replied that her “dad is going to see that” with the Applicant replying “Delete it”.

71. On 2 November 2016, Victim C messaged the Applicant in terms which made clear the depth of her upset at what he had been doing and the adverse impact it was having on her.

Sequence 3 - Use Carriage Service to Solicit Child Pornography Material (Victim A) Between 17 and 20 March 2017

72. Victim B and other friends attended Victim A’s home on Friday, 17 March 2017.

73. Victim A added the Applicant on Snapchat at about 8.00 pm or 9.00 pm that day for the purpose of obtaining alcohol.

74. A series of online conversations occurred via Snapchat whereby the girls asked the Applicant to purchase alcohol for them.

75. The Applicant declined to purchase alcohol and responded that they were using him. Contact ceased for that evening.

76. The Applicant messaged Victim A and Victim B over the next few days via Snapchat. Victim A participated in general conversation. She did not respond to some communications.

77. On about Sunday 19 March 2017, Victim A was alone in her bedroom. The Applicant told her on Snapchat that he ran a blog and required models to send photographs of themselves “not fully clothed”.

78. The Applicant told Victim A that she would be paid $5.00 for each photograph, although the money may increase to $50.00 per photograph if they were seductive. In order to be paid more money, the Applicant told Victim A that she should be “as freaky as you can”.

79. Victim A sent a number of photographs of her legs.

80. The Applicant requested more seductive photographs in exchange for more money. His offers for payment increased to hundreds of dollars and then thousands of dollars.

81. The Applicant agreed to pay Victim A by transferring money to Victim B’s account. In support of his offer for payment, the Applicant sent Victim A photographs of bank transactions he had sent to other girls who had provided photographs.

82. Victim A sent photographs to the Applicant of her top half fully clothed. She then sent increasingly revealing photographs including bikini photographs, completely naked photographs and photographs of her vagina. Victim A also sent videos of her masturbating.

83. Victim A sent a total of about 70 photographs to the Applicant.

84. The Applicant screenshot some of the photographs which Victim A sent to him and saved the photographs in an encrypted application called “Photo Vault”.

85. The Applicant sent to Victim A on Snapchat about seven to 10 photographs and some videos of himself masturbating. Victim A did not screenshot or save any of the videos or photographs sent to her by the Applicant.

86. The Applicant told Victim A that he was going to kill himself the next day. He told her (falsely) that he was required to attend the police station the following day to answer questions about his ex-girlfriend’s suicide and the police would be examining his phone.

87. The Applicant told Victim A that she should delete all of the conversations they had on Snapchat, unless she wanted to get in trouble with the police. Victim A complied and deleted all of the chats. Victim A felt worried and scared that the Applicant was going to show the police her photographs, so she told her parents about the communications with the Applicant.

88. The Snapchat communications between Victim A and the Applicant occurred between about 10.30 pm on Sunday 19 March 2017 and 1.00 am on Monday 20 March 2017.

89. The Applicant did not pay Victim A. She has never met the Applicant.

90. Victim A was 14 years old in March 2017. She did not tell the Applicant her age.

91. On 20 March 2017, Victim A attended a local police station with her parents to report the Applicant. She participated in a record of interview with police on 23 March 2017.

Sequence 4 - Use Carriage Service to Solicit Child Pornography Material (Victim B) Between 17 and 20 March 2017

92. On either Sunday 19 March 2017 or Monday 20 March 2017, Victim A told Victim B that the Applicant would pay her $2,000.00 if she sent him photographs of her legs. Victim B added the Applicant on Snapchat.

93. The Applicant asked Victim B if she knew what was happening and he sent her a screenshot of his blog and his bank account. The photograph of the bank account indicated that he had $3.5 million dollars.

94. Victim B sent to the Applicant via Snapchat about 50 to 60 photographs of her feet and legs. She then put on a bikini and sent more leg photographs.

95. The Applicant told Victim B that the “sexier and kinkier the photographs”, the more money she would be paid and she would be paid more money again if she sent him photographs that would “pleasure him”.

96. The Applicant directed Victim B to lie on her stomach and take photographs of her bottom and she complied. However, she declined to send naked photographs of herself to the Applicant.

97. The Applicant told Victim B she had earned $100.00, not $2,000.00. He said he would not pay her because she did not make him ejaculate.

98. The Applicant told Victim B (falsely) that he was attending the police station the next day and that police would check his phone. He said he was going to kill himself the next day. Victim B stopped talking to the Applicant and blocked him on Snapchat.

99. Victim B phoned her mother and told her she was scared that the Applicant would show police the photographs and was scared as well that the Applicant would kill himself. Victim B’s mother advised that she should speak to the Applicant’s sister.

100. Victim B contacted the Applicant’s sister and told her she was concerned the Applicant was going to kill himself, but did not tell her “the whole story”.

101. The Applicant did not transfer any money to Victim B.

102. Victim B participated in a record of interview with police on 23 March 2017.

103. Snapchat discussions with the Applicant were located on Victim B’s phone. At one point in these discussions, Victim B said to the Applicant “I’m begging u … Please don’t do anything … This is making me cry”. In another discussion, the Applicant instructed Victim B how she should pose for photographs.

Execution of Search Warrant on 27 March 2017

104. As a result of complaints made to the police by Victim A and Victim B, police commenced an investigation of the Applicant. At about 11.00 am on 27 March 2017, New South Wales Police executed a warrant at the Applicant’s residence in Caringbah South.

105. The Applicant gave his mobile phone and laptop to police and indicated his PIN.

106. The Applicant told police that:

1. there were nude images of girls on his phone aged between 14 to 18;

2. he obtained the images via Snapchat;

3. some of the images were received over Snapchat in response to a request;

4. some of the images received over Snapchat were “forced”;

5. by forced, he meant “convincing them, offering money, offering other things for the photos”;

6. he requested images from 30 to 40 different girls.

107. During the execution of the warrant, the Applicant told his brother the police “are here because I am in the wrong … I am in the wrong”.

Sequence 1 - Possession of Child Abuse Material on 27 March 2017

108. Following execution of the search warrant on 27 March 2017, the Applicant’s computer was obtained and examined with no relevant material being located on it.

109. The offence contained in Sequence 1 relates to material located on the Applicant’s mobile phone.

110. The sentencing Judge was informed that the material on the Applicant’s mobile telephone had been classified in accordance with the Interpol Baseline Scale which classifies activity depicted as Child Abuse Material: Gilshenan v R [2019] NSWCCA 313 at [13]. Relevant categories are as follows:

Category 1

Interpol Baseline Categorisation

Material depicting a real pre-pubescent child, and the child is involved in a sex act, witnessing a sex act, or the material is focused/concentrated on the anal or genital region of the child.

Category 2

Other Illegal Child Abuse Material

Material depicting a person who is, appears to be, or is implied to be a child, and is depicted or described in a way that reasonable persons would regard in all the circumstances offensive who: Is a victim of torture, cruelty or physical abuse; or Is engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others); or Is in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity; or Is exposing the genital area or anal area or breasts of a female child.

111. On review of the Applicant’s mobile phone, police identified 6,599 photographs and 44 videos in a password-protected application called “Photo Vault”.

112. Two hundred and eighty photographs were classified as “child abuse material”.

113. There were 44 images of Victim B and 29 images of Victim A.

114. Image 1,457 had a caption “please don’t make me send anymore”. Image 2,078 depicted a young female wearing a bra and underwear with a typed caption “last shower being 14”.

115. No videos were classified as “child abuse material”.

116. A number of “chats” were located on the mobile telephone. These chats were the subject of the Sequence 9 offence.

Arrest and Charging of Applicant on 27 March 2017

117. Shortly after 11.00 am on 27 March 2017, following the execution of the search warrant at his home, the Applicant was arrested and conveyed to Miranda Police Station.

118. The Applicant was charged with the subject offences on 27 March 2017. He was released on bail that day and did not enter custody until sentence was imposed on 4 June 2019.

Impact of Offences Upon the Victims

119. A victim impact statement from Victim A dated 24 November 2018 was tendered by the Crown at the sentencing hearing. Victim A’s statement provided considerable insight into the consequences of the Applicant’s offending upon her. She spoke of distress, humiliation and embarrassment and her ongoing fear and anxiety concerning the existence on the Internet of photographs of her.

120. As a result of the Applicant’s offences, she has experienced stress and anxiety when talking to people (especially boys) on social media and experienced a lack of trust communicating with people in this way. She has a real fear of getting onto public transport because of concerns that she could possibly run into the Applicant. She stated that she has been prescribed medication since the incident to combat anxiety and has a real fear that the incident may come up in the future and damage her reputation and chances of employment.

121. Victim A feels violated and that she was taken advantage of by the Applicant who deceived her about payment of money knowing that she was a schoolgirl.

122. Victim A stated that she does not let herself get close enough to boys to form a relationship with them as she feels that all boys are like the Applicant who do not respect girls at all.

123. The victim impact statement confirms the harm done to a young girl in her position by criminal communications of the type undertaken by the Applicant. The statement serves to illustrate the dangers for young people when this means of communication is abused and exploited in the manner seen in this case.

124. The matters raised in the victim impact statement serve to emphasise the usual importance of general deterrence and denunciation in passing sentence for this class of offending. That said, as will be seen, findings were made by the sentencing Judge which serve to moderate the role of general deterrence on sentence in this case given the Applicant’s mental condition.

125. The fact that victim impact statements were not made by other girls who were exploited by the Applicant does not mean that there were no adverse consequences flowing to them as a result of the Applicant’s offending: s.16AB(3) Crimes Act 1914 (Cth).

126. Indeed, Courts have recognised that the implicit, persuasive presumption that a child has suffered harm as a result of prohibited sexual activity applies no less to cybersex offences than it does to (in person) sexual offences committed against young persons: Adamson v R (2015) 47 VR 268; [2015] VSCA 194 at [23]-[30], [56]-[58]. In that case, Warren CJ, Redlich and Weinberg JJA said at [23], [28]:

“[23]    The appellant argues that cybersex offences have a sufficiently different character to the ‘in person’ offences considered in [Clarkson v R (2011) 32 VR 361; [2011] VSCA 157] to render the reasoning supporting the application of the presumption inapplicable to cybersex. That submission cannot be sustained. The Victorian Director of Public Prosecutions (Director) and the Commonwealth Director submit that the principles relating to the presumption of harm described in Clarkson apply equally to cybersex offences. We agree. The subject matter, text and purpose of the legislation concerned with sexual offences against children through the use of a carriage service rests upon the same presumption as exists in relation to offences committed ‘in person’, or in the presence of the child. The legislature, in enacting the provisions prohibiting the use of a carriage service to engage in sexual activity with a child, sought to implement society’s detestation of the practice of encouraging children to engage in inappropriate sexual behaviour, and to protect the child from immature decisions.

…

[28]    As the present case illustrates, the medium of the internet permits the offender to employ techniques of intimidation or coercion which are designed to ensure the child’s participation. In some cases the relationship that exists between offender and child may give rise to a breach of trust. When such factors are present in offending ‘in person’, they are ordinarily a circumstance of aggravation. But the presumption of harm does not depend on such factors being present, either for ‘in person’ or cybersex offences, though their existence in a particular case may increase the risk of harm to the child.”

127. In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, this Court said at [110]:

“This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can do’. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].”

128. The line of authority which gave rise to this statement in R v Gavel involves the same cases relied upon by the Victorian Court of Appeal in Adamson v R. These principles may be called in aid as well where a person is being sentenced for cybersex offences committed against real child victims.

The Applicant’s Subjective Circumstances

129. As mentioned earlier, the Applicant was 18 years of age at the time of the offences and 21 years old at the time of sentence in June 2019. His 22nd birthday is in early May 2020.

130. The Applicant has no prior criminal history.

131. A sentencing assessment report dated 27 November 2018 was tendered by the Crown at the sentencing hearing.

132. The sentencing assessment report noted that the Applicant was then working in the hospitality industry on a casual basis and was residing with his parents and siblings, an environment which the Applicant described as being stable and supportive.

133. The Applicant told the Community Corrections Officer that he attributed his offending behaviour to his deteriorated mental health. The Applicant reported that he initially used social media as a platform to make friends as he felt disconnected from those around him and that, despite knowing the ages of the victims and that he was committing an offence, he reported feeling as though he was unable to stop. He stated that “At the time of the offences he felt isolated and unloved which led to moods of depression” but that, since the commission of the offences, he has engaged with psychological intervention to address these underlying issues.

134. The Applicant expressed his willingness to continue engagement with psychological intervention. Although the Applicant had been assessed as a low risk of reoffending according to the Level of Service Inventory-Revised instrument, Community Corrections had overridden that risk assessment to T2/Medium-High due to the Applicant being in the “above average risk” range of the Static-99R assessment.

135. A case note report annexed to the sentencing assessment report indicated that, should the Applicant receive a custodial sentence, it was recommended that he be referred for assessment of his eligibility and his suitability for a custody-based treatment program, although it was noted that he would require a minimum period of two years to complete most custody-based programs.

136. Tendered in the defence case on sentence were reports of the Applicant’s initial treating psychologist, Klaudia Gebert, dated 2 March 2018 and a report dated 13 May 2019 from John McQuillen, psychologist, who took over as the Applicant’s treating psychologist from April 2019. Further, a number of medical reports and hospital treatment notes concerning the Applicant were tendered.

137. In addition, tendered in the defence case on sentence were letters from the Applicant’s mother, brother and father which provided a family history and a detailed account of the Applicant’s background and health issues.

138. The Applicant’s mother stated that he had not been active on social media since his arrest on 27 March 2017.

139. She gave an account of the Applicant’s experiences of being bullied whilst at school and the negative consequences of those experiences on him. She described the Applicant as a person who was “always a little awkward socially” who befriended persons with disabilities and was “considered uncool” by other students as a result (T7, 20 May 2019). She confirmed medical reports which indicated that the Applicant had attempted suicide. The Applicant’s mother understood that her son had effectively tormented the victims and had to be punished for his offences.

140. Medical reports and discharge summaries tendered at the sentencing hearing confirmed that the Applicant had made a suicide attempt in December 2014 (AB168-173).

141. Documents produced on subpoena by the high school which the Applicant attended also confirmed a history of anxiety and stress in 2013 and 2014 (AB178-188).

142. The Applicant’s mother gave evidence at the sentencing hearing. The Applicant did not give evidence at the hearing.

143. She confirmed that the Applicant had engaged with psychological counselling and therapy since April 2017. She stated that the Applicant was “incredibly remorseful” and that he “suffered deep shame” for what he had done (T8, 20 May 2019).

144. Under cross-examination by the Crown, the Applicant’s mother confirmed that he was living at the family home during the period of his offending. She said she had been quite unaware of his offending conduct.

145. The Crown asked the Applicant’s mother about her knowledge of events which occurred when he was 14 years old which gave rise to a police warning. This was referred to in Mr McQuillen’s report (page 3) where the Applicant “reported at the age of 14 he had begun requesting girlfriends send him images of themselves over ‘snapchat’ and that he had been warned by NSW Police for the behaviour at the time”. The Crown asked the Applicant’s mother (T9-10, 20 May 2019):

“Q. But you had been aware, at that point, that he’d done similar things when he was 14 years of age, is that right?

A. I, I knew that he was warned because of inappropriate communication, yeah.

Q. Were you aware that a number of young girls, and three in fact had made complaints to police concerning him trying to obtain naked photographs of them using the promise of concert tickets or some reward?

A. Only with the initial, when he was younger, not after that.

Q. Yes, when he was 14 is ---

A. Yes, I was aware of that.

Q. That’s what my question is, you were?

A. Yes.

Q. You were aware of the police warning that resulted?

A. Yes.

Q. Did you seek any treatment on behalf of your son for that behaviour at the time?

A. I’m just, it’s a bit of blur, but I believe he, he was seeking counselling with the, a gentlemen by the name of Andy Sexton, who was the school counsellor at that time and yes, he had made quite a bit of progress with him until this particular counsellor had left the school that Orion was attending.

Q. No outside school counselling privately?

A. No.

Q. Did you monitor his online use in any way in the four years between the warning and the offences committed before the Court?

A. Sorry, could you repeat that?

Q. Sorry, I’ll take it back. You mentioned in your evidence in chief today, that you’re now monitoring his online behaviour?

A. Yes.

Q. Did you monitor that online use at any time between the warning and now?

A. No.

Q. If in the event your son was returned to your home?

A. Yes.

Q. What would you do if your monitoring now revealed new offending?

A. Sorry, I couldn’t understand the ---

Q. If as a result, if he was to return home after court today ---

A. Yes.

Q. --- for the foreseeable future?

A. Yes.

Q. And your monitoring of his online conduct revealed new offending, what would your actions be?

A. I would need that dealt with immediately, because it would say that there’s a bigger problem?

Q. You’d report it to the authorities?

A. Absolutely, I would.

Q. You’ve mentioned that you’ve observed in your son that he’s experiencing an incredible deep level of shame over the current offence?

A. Yeah.

Q. Did you observe this on the last occasion?

A. When he was 14, no. It wasn’t long lasting, it was, it was short lived I think. I saw that initially, but as time progressed ---

Q. It ameliorated?

A. --- he was 14, it, you know, yeah.”

146. The psychological report of Ms Gebert dated 2 March 2018 recounted her treatment of the Applicant since a referral by his general practitioner following his arrest in March 2017. Ms Gebert expressed a provisional diagnosis of persistent depression disorder (dysthymia) and generalised anxiety disorder as well as borderline personality disorder (page 4). As Ms Gebert had left the clinic where she had been treating the Applicant, she noted that his treatment was to be assumed by another psychologist.

147. The detailed report of Mr McQuillen dated 13 May 2019 played a significant part at the sentencing hearing and in her Honour’s sentencing remarks.

148. A number of specific questions were posed to Mr McQuillen for comment. In answer to a question whether the Applicant met any formal diagnosis of a mental health condition, Mr McQuillen said (page 7):

“In my clinical opinion I believe Mr Kannis likely met criteria for a major depressive disorder in accordance with DSM-5 criteria at the time of the offences based on his reports, hospital records, and treatment history. Mr Kannis' current test scores and reports are not consistent with a clinical disorder however I do suspect there is a degree of impression management and this is consistent with his responses on the PAI and DASS21. I believe his depressive disorder remains not fully treated and note he exhibits Borderline Personality traits given his prior reckless behaviours, history of self-harm, and the menacing or threatening nature of some of the exchanges with victims in the offences now before the court.”

149. In response to a question whether the Applicant was sexually aroused from his offending, Mr McQuillen replied (page 7):

“The detail of sequence 4 is consistent with sexual arousal. Some of the detail in other sequences would also be consistent with Mr Kannis' reports of seeking and needing approval from his victims and his behaviours were likely motivated by both sexual arousal and approval seeking. The behaviours also show a disregard for the psychological impact upon the victims consistent with Mr Kannis reports of being engaged in relationships for validation and approval with little insight into the experience of his partner. This lack of empathy and difficulty understanding the emotions of others would also be consistent with a borderline personality disorder.”

150. Mr McQuillen did not consider that the Applicant had any romantic motivations for his behaviour.

151. In response to a question as to whether the Applicant was “addicted” to his sexualised offending behaviour, Mr McQuillen replied (page 7):

“The patterns of behavior in all sequences are similar and follow a consistent pattern or formula designed to obtain sexually explicit material through the use of bribery and coercion. The behaviours could be considered somewhat compulsive in nature designed to address persistent negative obsessions about self and gaining attention and validation from other. They could also be hypothesized as being addictive in the sense that they were designed to provide relief and pleasure from severe and persistent psychological distress about self, others and the future.”

152. In answer to a question as to whether the Applicant’s conduct involved the exercise of power and control over the victims (given the Applicant’s statement that he felt that he had been a victim of bullying during his childhood), Mr McQuillen replied (page 7):

“In my professional opinion Mr Kannis' behaviours are consistent with attempting to exert power and control over his victims. It is reasonable to expect that Mr Kannis' experiences of bullying and harassment in his schooling and workplaces would have likely led to the formation of a sense of vulnerability and need to protect himself from his perceived weaknesses and from others, especially given his reports that he was on some occasions physically injured. The Schemas identified by Ms Gebert demonstrate he developed negative blueprints about himself and his behaviours designed to gain approval and validation are maladaptive coping strategies for those blueprints. His use of bribery and coercion with his victims may represent desperate and maladaptive attempts to cope with his Schemas and could be considered over compensatory strategies designed to control others to address his concerns about self.”

153. In answer to a question as to whether there was any nexus between his diagnoses and the Applicant’s offending, Mr McQuillen replied in the affirmative and continued (page 8):

“As I have already noted in this report, I believe that Mr Kannis' behaviours represent maladaptive attempts to cope with his system of negative beliefs about self and avoidance through pleasure seeking.”

154. Mr McQuillen recounted the extended course of treatment undertaken with Ms Gebert in 2017 and 2018 and expressed the view that the Applicant required further psychological treatment.

155. Mr McQuillen applied the Static-99R risk assessment tool and concluded that the Applicant was placed in the moderate-high risk category relative to other male sexual offenders (page 8). Mr McQuillen elaborated upon the Applicant’s risk of reoffending (pages 8-9):

“Mr Kannis' score was elevated by his young age, never having lived with a sexual partner, and having unrelated and stranger victims. I believe his score somewhat overestimates his level of risk, which I expect to be more the low-moderate range in practical terms. The actuarial assessment does not account for dynamic factors, and the improvement in his mental health over time likely lowers his risk. It is also worth noting that one of the elevations was due to the 'stranger victim question'. It should be noted in his circumstances that the stranger victim was in fact someone introduced to him by someone that he already knew. If this were considered to be a known victim the score would fall into the low-moderate range.”

156. Mr McQuillen concluded his risk assessment in the following way (page 9):

“In my clinical opinion there is a nexus between Mr Kannis' mental health history and the charges currently before the court and reducing his risk of recidivism will require addressing his mental health needs. Without further treatment I believe he will remain at risk of recidivism.”

157. Mr McQuillen noted that the Applicant “has a long history of bullying throughout his childhood that has had a significant impact upon his psychological development leading to the formation of maladaptive schema and maladaptive coping responses” (page 9). He noted that the Applicant reported “a generally supportive family life”, although there were some interpersonal problems with members of the family (page 9). Mr McQuillen expressed the following conclusions and recommendations in his report (page 9):

“Mr Kannis is a 21 year old male who reports a long history of experiencing bullying and other threatening events throughout his life that have had a significant impact on his psychological development. He has developed a negative belief system about self and maladaptive blueprints about himself, others, and the world generally that have led to the formation of maladaptive coping responses to meet his emotional needs. In my opinion there is a direct link between his mental health and criminal offending behaviours and he will remain a low-moderate risk of recidivism unless he develops adaptive responses for meeting his emotional needs. Although his reports and current test scores suggest that his depressive disorder has remitted I believe it is likely only due to his focus upon the current forensic matter and I expect a reemergence of clinical symptoms without further treatment once his forensic matter is finalised. His results on the PAI support my opinion.

In my professional opinion, the most crucial factor to reducing Mr Kannis' risk of recidivism is the treatment of his mental health.”

158. If the Court imposed a custodial sentence, Mr McQuillen made the following recommendation (page 9):

“If the court were to convict Mr Kannis and order a custodial sentence it is recommended the court make provision for the treatment of his mental health and he be referred to the young offenders program, assessment for the sex offenders program, and the Corrective Services NSW psychology service for the provision of psychological therapy.”

The Sentencing Hearing and Sentencing Remarks

159. Following the hearing on 20 May 2019, the sentencing Judge came to sentence the Applicant on 4 June 2019.

160. It is appropriate to set out parts of the sentencing remarks in this judgment. Submissions were made at the hearing in this Court by reference to the structure and content of the sentencing remarks. Her Honour addressed, in some detail, the objective and subjective factors emerging from the case and the balancing process required in the exercise of instinctive synthesis in passing sentence.

161. The sentencing Judge commenced with a description of the offences and then findings of fact based upon the Agreed Statement of Facts (ROS1-13, 4 June 2019).

162. Her Honour then recounted Victim A’s victim impact statement and said (ROS14):

“The Crown does not rely on the victim impact statement to elevate the criminality beyond the elements of the offence itself. Instead, the Crown puts forward the victim impact statement so that the Court can understand the impact of the offence on the victim. It goes without saying, that regrettably, this is the typical harm that the Court sees from these sorts of offences, particularly on young victims.”

163. The sentencing Judge then returned to consider the objective seriousness of the offences, noting before undertaking that task the following matters (ROS15):

“When considering any sentencing exercise, the Court must consider the general seriousness of these offences. That is, Parliament has provided maximum penalties as the statutory guideposts that indicate the general gravity with which these offences are regarded. Necessarily, these offences have the real potential to create victims out of children.

As noted by the Crown in written submissions, there generally must be consideration of the sentencing purpose of general deterrence. That is, to send a message to the community, that we cannot tolerate these offences. The reasons are obvious. These offences have the capacity to sexualise children and cause damage long into their lives. These offences have the capacity to create devastating and long lasting disability, mentally, for these people who suffer these offences.”

164. Her Honour then turned to the question of objective seriousness noting that it was necessary “to look specifically at the offences before the court to determine where they sit within the spectrum of gravity considered by the offence provisions” (ROS15).

165. Her Honour noted the provisions in s.16A Crimes Act 1914 (Cth) and stated with respect to the Commonwealth offences (ROS16):

“The offender has engaged in the continuous course of conduct over a period of time with multiple victims, amassing a collection of child abuse material and using his contact with those victims to solicit child pornography and to groom recipients in his communications.

The communications involved emotionally manipulative communications with young vulnerable victims to achieve his own ends for sexual gratification. I am in agreement with that submission that these offences do constitute serious breaches of the Code offences.”

166. The sentencing Judge then turned to an assessment of the objective seriousness of the s.474.27(1) offence in Sequence 9 (ROS17):

“Turning firstly to use carriage service to groom a person under 16 years for sexual activity, the first matter to be noted is that the victim [‘Victim C’] was 14 at the time. The facts note that the offender did not know that, in so far as the victim had not told the offender of her age, but it is clear that the victim was relatively young within the category of age that constitutes this offence. Fourteen is towards the upper end of that age limit, but nonetheless is an age that involves deserving protection under the legislation.

The offender’s communications were clearly designed to win the trust of [‘Victim C’] and draw her into intimate and sexually explicit conversation. The Crown's submission is that this conduct was for the purpose of making it easier to procure the victim for sexual activity. The offender requested photographs in the context of sexualised conversation. The offender requested she meet him for the purpose of sexual activity and he instructed her on how to masturbate.

He also asked her to delete the conversations. In that regard there is a furtive aspect to his behaviour.”

167. After referring to the principles set out in R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316 at [48]-[49], her Honour said with respect to the Sequence 9 offence (ROS18-19):

“The Crown asked the Court to consider this case as resonating with the concerns raised in the decision of Asplund. Here, the offending occurred over a period of approximately 11 days with contact occurring on six of those days.

The chat displayed an awareness by the offender that the victim was 14 years of age. I said earlier that the victim had not told the offender, I withdraw that comment. I am in agreement with the Crown that the chat did display awareness by the offender of the age of the victim and also showed a persistent desire to discuss highly sexualised matters despite her age.

Furthermore, the offender’s behaviour was aimed at cultivating a relationship of trust between him and the child victim to facilitate the continuation of the communication and to facilitate the offender eventually meeting with the victim so that he could pursue a desire to engage in sexual activity with her.

The Crown rightly submits that the offender exploited the anonymity of the internet to cultivate the relationship of trust. Unlike the case of Asplund, there was no actual exchange of money and there was not a position of power, but I do agree with the Crown that there was grooming in the sense of the attempt to create a relationship of trust.

The offender persistently attempted to make arrangements to meet the victim with such requests becoming more and more urgent. Furthermore, the offender engaged in the furtive aspect of directing the victim to delete the conversation with him in order to avoid detection.

The Crown submits that the offender engaged in a deliberate and persistent course of conduct involving emotionally manipulating and encouraging a young girl to engage in sexualised communications for the purpose of the offender’s sexual gratification.

Many of those aspects are bound within the elements of the grooming offence itself. Of concern here is the persistence of the offender and the degree of manipulation used by the offender, together with the furtive aspect of directing the victim to delete the conversations.

Regrettably these offences are often hard to detect, precisely because of that aspect of the criminal conduct.”

168. Her Honour then assessed the objective seriousness of the Sequence 9 offence in the following way (ROS19):

“I am in agreement that this offence falls within the mid range level of criminality, although, given the age of the victim, fortunately it is not as serious as some other cases the Court sees. I would see this offence as falling at the start of the mid range category.”

169. The sentencing Judge then made findings relating to the possess child abuse offence (Sequence 1) and the Sequence 4 offence. Her Honour referred to factors to be taken into account on sentence as identified in Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140 and R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174. Her Honour said in this respect (ROS20-21):

“Such factors to be considered include: whether actual children were used in the creation of the material; and the extent of any cruelty or physical harm occasioned to the children.

Here, actual children were used, but there is not a suggestion of particular cruelty or physical harm apart from the caption on one of the photos that was to the effect that it should stop.

The Court must consider the nature and content of the material and in particular the age of the children and the gravity of the sexual activity depicted. Here, the number of images was not as large as the Court sometimes encounters, but it is nonetheless a considerable amount. The nature of the content does not appear to involve matters that fall into the Interpol baseline category 1 but nonetheless, as the Court understands, it involves category 2 images.

The Court must consider the degree of planning, organisational sophistication employed by the offender. It is to be noted that the offender had an encrypted app for the storage of such images.

The Court is to note whether any payment or other material benefit was made, provided or received. Certainly the facts generally show a course of conduct where the offender was offering money. It does not seem that any money was paid out, despite images of bank accounts and purported transactions in that regard.

The Court is to consider whether the material was for the purpose of sale or distribution. Despite the offender apparently at one stage in another part of his criminal conduct pretending to be ‘John’, there is no evidence that the offender intended to distribute or sell the images. Instead, the most the Court would find beyond reasonable doubt is that he had the images for his own gratification. Equally, there is no evidence that the offender was going to profit financially from the offences.

The Court is to consider whether the offender acted alone or in a collaborative network. Despite the reference at one stage in the facts to the offender apparently posing as Orion’s client ‘John’, nonetheless there is no suggestion that he acted collaboratively with any other person.

The Court is to consider the risk of the material being acquired by vulnerable persons, particularly children. Whilst the facts do show that the offender had sent a different image to a child, it is not suggested that his soliciting child pornography material was for the purpose of showing other people and it does not seem that there was a real risk of the images being acquired by vulnerable persons particularly children.

The Court is also to consider any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. Again, there is no such risk revealed to the Court in this case.”

170. Her Honour referred to submissions made concerning the objective seriousness of the s.474.19(1)(a)(iv) offence in Sequences 3 and 4. It may be taken that her Honour was accepting the following Crown submissions, which were not placed in issue at the sentencing hearing. Her Honour said in this respect (ROS21-22):

“The Crown's submission is that each of the solicit child pornography material offences is objectively serious. Firstly, the child pornography material solicited by the offender was at times graphic in nature, with one victim responding with videos of herself masturbating. The offender specifically told one victim that the sexier and kinkier the photographs the more money she would be paid. The offender offered incentives for the return of images, including the promise that he was involved in the modelling business and the promise of gifts and payment involving hundreds and then thousands of dollars.

In response to his solicitations, the offender was sent about 70 photographs and an unspecified number of videos from the victim in sequence 3 and then over 60 photographs from the victim in sequence 4. Both victims were aged 14 years, although it is conceded that the offender might not have known the actual age of each victim.

The offender specifically directed the victims as to the nature of the material they were to send him. He took a screen-shot of some of the photographs sent to him and saved them in his encrypted app for future use.

Significantly, he engaged in emotionally manipulative conduct in his communications with the victims. He threatened to kill himself and he threatened to provide the photographs he was sent to the police. The nature of this emotionally manipulative conduct can be seen particularly in the Snapchat discussions between the offender and the victim [‘Victim B’]. The offender acknowledged that this conduct was forcing the victims to send images; that acknowledgement was made to police.”

171. The sentencing Judge then made the following finding concerning the objective seriousness of the offences in Sequences 3 and 4 (ROS22):

“The circumstances are such that, for each of the offences, the offending conduct falls within the mid-range level of criminality and I am in agreement with the Crown’s articulation of the features for consideration. Whilst a number of those features comprise the elements of the offence themselves, it is the extent to which the offender committed those elements that is still necessary in the consideration of objective gravity.”

172. Her Honour then returned to the offence in Sequence 1, being the offence of possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW). After referring to sentencing principles for this class of offence, her Honour said (ROS24):

“I am in agreement with the Crown that there is a paramount public interest in promoting the protection of children, as the possession of child pornography is not a victimless crime. Children should not be sexually abused in order to supply the market and yet, this is what occurs with the possession of child pornography, particularly where real children are depicted.

As seen from the victim impact statement of one of the victims in the solicitation offences there is an additional layer of trauma where the victim lives with the knowledge that images of her abuse exist in perpetuity and they can resurface at any time. Accordingly, the authorities describe the harm caused to children exploited in this way as ‘profound’ and exacerbated by the continued and indefinite circulation and accessibility of images on the internet.

In this case, the offender gave his phone and laptop to police and made admissions. The police found 280 photographs on the phone constituting child abuse material. The Crown submits that such conduct would be seen as constituting a serious commission of this type of offence when one considers the following features.

The material located on the phone was protected by an encrypted application photo vault.

The material featured images where the victims had been coerced or forced with, as I noted earlier, a plea in one of the images being, ‘please don’t make me send any more’.

It is not possible for the Court to determine the number of victims featured in the child abuse material, but it is able to be determined beyond reasonable doubt that there were multiple victims.

The offender told police he had requested such images from 30 to 40 different girls.”

173. Having considered factors relevant to sentence for this class of offence as considered in R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, her Honour made the following finding concerning the objective gravity of the Sequence 1 offence (ROS25):

“I agree with the Crown that the offending conduct would be seen in the mid-range level of gravity, but it would be at the lower end of mid-range.”

174. Her Honour then turned to consider the objective gravity of the s.474.17(1) offence to be taken into account under s.16BA Crimes Act 1914 (Cth), being the offence of using a carriage service to menace, harass or offend. Her Honour accepted the Crown submissions in this respect and made the following findings (ROS26):

“In that regard, the Crown relied on several features in the assessment of the objective gravity as being serious.

Firstly, the offence was committed against four separate victims on different days.

The ages of the victims are unknown, but it emerges from their communications that there was a naivety and vulnerability of each of the victims that was apparently exploited by the offender.

The offender engaged in persistent and calculated predatory conduct as a course of conduct.

He assumed the identity of a modelling agent to lure victims to send sexualised images and videos.

He used substantial financial incentive to entice the victims to send such images of themselves, albeit that there is no evidence he paid any victim.

The offender used material obtained from some of the victims using deception and coercion to extort further material with threats of exposure.

The offender extorted video material as well as still images.

I am in agreement with the Crown that this offence falls at the mid-range level of objective gravity.”

175. The sentencing Judge then considered whether the circumstances of the Applicant’s offences involved a course of conduct for the purpose of s.16A(2)(c) Crimes Act 1914 (Cth) and s.21A(2)(n) Crimes (Sentencing Procedure) Act 1999 (NSW). Her Honour said (ROS27-28):

“The Commonwealth legislation requires that the Court take into account the course of conduct. Here the offender participated in conversations in which he solicited child pornography material over several hours on one day. The conversation constituting the grooming of victim [‘Victim C’] took place over a span of 11 days, the chats themselves occurring on six different days, often for an extended period of time. The conversations constituting the menacing and harassment of four separate victims took place over the span of one day on each occasion, that is over separate days.

The Crown submits in the circumstances that none of the offences can be viewed as spontaneous or impulsive. Certainly for the offender to be able to show an image of a bank account with some millions of dollars or to show other such bank account transactions which on the facts are of dubious reality does involve a degree of planning. There is a persistence that emerges from a view of the totality of the offending conduct.

Furthermore, the Crown submits that the possession of the child abuse material cannot be said to have resulted from a single download. Instead, on the offender’s own account, he sought the images from 30 to 40 different girls.

In the decision of James v R as recently affirmed in the decision of Porte to which I have referred, the Court of Criminal Appeal considered that the offences of accessing and possessing child pornography are separate offences and therefore it is appropriate for there to be some consideration of accumulation of the sentences. I will return to a consideration later in respect of the totality of offending conduct.

The Crown furthermore asked the Court to consider the circumstances that the totality of offending conduct involved multiple victims, including children who were 14 years old at the time as was the victim [‘Victim C’].”

176. The sentencing Judge then turned to other evidence concerning the Applicant for the purpose of considering the issue of moral culpability. Her Honour said (ROS28):

“The Court must consider the broader concept of moral culpability. That consideration extends beyond an assessment only of the objective gravity and the Court is able to consider features that are subjective to the offender himself.”

177. Thereafter, her Honour considered, at some length, the psychological reports of Ms Gebert and Mr McQuillen with aspects of these reports being summarised in the following way (ROS28):

“Those reports consistently outline a childhood experience by the offender where his primary school years involved bullying as evidenced by some of the medical records contained towards the end of exhibit 1. It appears that the offender was both verbally and physically assaulted or bullied during his primary school years so causing an experience of social isolation and leading in adolescence to a condition of depression. Between years 9 and 10 at school, the offender reported being witness to various suicide attempts and the offender himself later had admissions to hospital for his own self-harm attempts.”

178. Her Honour noted Mr McQuillen’s opinion that there was a causal connection between the Applicant’s psychological condition and the offending conduct with the Court referring to parts of Mr McQuillen’s report as set out earlier in this judgment (at [148]-[153] above) (ROS29). Her Honour continued (ROS30-31):

“These are matters relevant to the consideration of the offender’s moral culpability. It has long been recognised by the authorities that where there is a link between an offender’s mental health and the offending conduct, then there might arise a degree of mitigation on sentence. Cases such a De La Rosa consider the various aspects that can arise from a consideration of an offender’s mental health. On the one hand, where there is this causal connection, it can reduce the emphasis or the weight that arises in the assessment of the moral culpability; it can be mitigating.

On the other hand, there can be a concern that such a mental health condition can cause an ongoing risk to the community, giving rise to the sentencing purpose of the protection of the community. Furthermore, an offender’s mental health can make an offender’s experience of custody more onerous. Furthermore, the offender’s mental health conditions can render an offender an inappropriate vehicle for the sentencing purposes of general deterrence and specific deterrence.

Here, I am of the view that the detail to which I have referred from the agreed facts, together with an understanding of the psychological reports, together with the character references supplied through the offender’s parents and his brother, reveal an immaturity for a man of 21 years-of-age or 18 at the time of the offences.

There was [exploitative] conduct by the offender, a real manipulation of younger victims and their innocence, but there was also an immaturity displayed by the offender. That immaturity sits within the context of the offender’s childhood of being somewhat marginalised through his experience of bullying and the consequential development of a depressive conduct which saw several episodes of self harm. That immaturity is coupled with the offender’s physical age. At 18 he had just entered his legal adulthood. These are features that in my view must impact on the assessment of the moral culpability. The objective gravity, that is, based on the circumstances arising from the offences themselves, is grave, as I have outlined. The offender’s subjective features do in this case give rise to a mitigation of the broader concept of moral culpability. His age, his immaturity and his mental health conditions at the time require that the Court mitigates the moral culpability and accommodates the ongoing need for rehabilitation.”

179. The sentencing Judge allowed a 25% discount for the Applicant’s early pleas of guilty, an issue to be addressed in the second ground of appeal. Her Honour said (ROS31):

“The offender is to receive, by mutual position from the parties, a 25% discount in respect of his early pleas of guilty.”

180. The sentencing Judge then addressed the Applicant’s prospects of rehabilitation and risk of reoffending, together with issues of contrition and remorse (ROS31-32):

“Furthermore, the offender has been undergoing efforts towards rehabilitation. This is outlined in the psychological reports. Even in the most recent report, it can be seen that the offender has been persisting with rehabilitation through counselling. The psychological reports consistently regard ongoing treatment as necessary to reduce the risk of recidivism by the offender.

While the offender does not have a known criminal history, and that ordinarily would be a feature of good character to be taken into account, the Crown quite rightly notes that the weight to be given to good character with these sorts of offences is not as high as might otherwise occur, given that these offences are often committed in circumstances that are hard to detect. However, the prior good character assists the Court in understanding the offender’s prospects of rehabilitation.

Whilst the offender has engaged in a course of conduct, his prospects of rehabilitation are positively assisted by his youth. He is still young enough to be able to rehabilitate with work through his ongoing counselling. He is not entrenched in his pattern of behaviour. Furthermore, I accept the opinions of the psychological report writers that the offender’s risk of recidivism must be seen as being reduced by ongoing treatment.

In the sentencing assessment report contained in exhibit A, the offender has some pro-social factors noted as confirmed in the character references and the psychological report. Firstly, he resides with his family, an environment he experiences as being stable and supportive. That favours his rehabilitation. Secondly, he has been engaged in pro-social employment in the hospitality industry. That also favours his prospects of rehabilitation. Furthermore, he has expressed remorse and regret to the report writers and his family and, whilst that was not tested under oath by way of cross-examination, the Crown concedes that the Court can accept those expressions of remorse as genuine.

218. The Crown written submissions in the District Court referred to Xiao v R and the appropriateness of allowing a discount for the utilitarian value of a guilty plea for Commonwealth offences (AB200-201).

219. The sentencing Judge allowed a 25% discount for the Applicant’s pleas of guilty for the Commonwealth and State offences without any elaboration (see [179] above). This approach was understandable given the submissions made in this respect at the sentencing hearing where counsel for the Applicant and the Crown agreed that a 25% discount was appropriate for the Applicant’s pleas of guilty to the State and Commonwealth offences (T13-14, 20 May 2019).

220. There was no uncertainty concerning the approach adopted by the sentencing Judge in determining the discounts for the pleas of guilty in this case. A common approach was adopted by reference to the utilitarian value of the pleas of guilty, with this approach being applicable to the Commonwealth and State offences in light of the common principles to be applied referred to at [219] above.

221. The sentencing Judge allowed identical discounts of 25% for the utilitarian value of the Applicant’s guilty pleas for the Commonwealth offences in the same way as her Honour did with the guilty plea for the State offence.

222. Her Honour made separate findings that the Applicant had expressed genuine contrition and remorse and these factors were taken into account, without quantification, as subjective factors which operated in the Applicant’s favour on sentence.

223. I would reject this ground of appeal.

Ground 3 - Claim of Error by Inappropriately Sentencing the Applicant “Consistently with Other Offence of Like Kind” Thereby Failing to Give Effect to Findings Made by the Sentencing Judge that the Applicant’s Moral Culpability was Reduced and that the Sentencing Purposes of Specific and General Deterrence had been Moderated in the Present Case

Applicant’s Submissions

226. Counsel for the Applicant submitted that the sentencing Judge had erred in relying upon other sentencing decisions referred to by the Crown in the manner contained in the extract from the sentencing judgment at [186] above.

227. It was submitted that her Honour had determined erroneously to “ensure” that the Applicant was sentenced consistently with these other sentencing decisions despite findings made with respect to the Applicant’s reduced moral culpability and the lesser need for specific and general deterrence in the circumstances of the case.

228. It was submitted that her Honour had erred by utilising the sentencing decisions which accompanied the Crown submissions and ensuring that “the sentencing outcome here falls within the type of sentencing range that arises from a consideration of cases referred to the court”.

229. Counsel submitted that consideration of the cases contained in the Crown schedule served to distinguish those cases from the present in a number of respects. It was submitted that none of those cases involved an 18-year old offender with mental health conditions of the type revealed in the present case.

230. It was submitted that, although her Honour had made a number of findings favourable to the Applicant with respect to moral culpability and the impact of his mental health condition, these findings were not implemented in the sentencing outcome because her Honour erroneously had regard to a sentencing range emerging from significantly different cases.

Crown Submissions

231. The Crown submitted that the Applicant sought to place inappropriate weight on the use of the words “ensure” and “ensures” as they appeared in one part of a lengthy sentencing judgment. It was submitted that the emphasis placed on these words by the Applicant was misplaced when considering the context in which they were used by her Honour in the judgment.

232. The Crown submitted that the sentencing Judge was mindful that there were limitations upon the usefulness of comparable cases and that this was particularly so given the findings here with respect to the Applicant’s age, reduced moral culpability and mental health conditions. The Crown noted, as well, that no submission had been made by the Applicant’s counsel at first instance with respect to the use of the other sentencing decisions.

233. The Crown submitted that, to make good this ground of appeal, it was necessary for the Applicant to demonstrate that the sentencing Judge had impermissibly constrained her own sentencing discretion by use of the comparable cases. It was submitted that this had not been demonstrated by the Applicant.

234. It was submitted further that the Applicant had not identified how the sentencing Judge was constrained by the comparable cases and which of the cases are said to have adversely influenced her Honour’s sentencing discretion.

235. The Crown submitted that the cases contained instances where offenders were sentenced for single offences through to multiple offences for Commonwealth and State offences and that it was difficult to understand how, in those circumstances, her Honour could have constrained her own sentencing discretion.

236. The Crown submitted that the Court should reject the third ground of appeal.

Decision

237. To determine this ground of appeal, it is necessary to consider the way in which the sentencing Judge was invited to consider other sentencing decisions for the purpose of sentencing the Applicant in this case.

238. The Crown written submissions in the District Court referred to Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 and submitted that “the consistency [in sentencing] that is sought is consistency in the application of the relevant legal principles, rather than some numerical equivalence”. The written submissions noted that annexed as Annexure “B” was “a schedule of cases which made [sic] provide the Court some guidance as to the applicable unifying principles”.

239. Annexure “B” contained a summary of the following six cases:

1. Meadows v R [2017] VSCA 290;

2. R v Engeln [2014] QCA 313;

3. Cooper v R [2012] VSCA 32;

4. R v Costello [2011] QCA 39;

5. Rampley v R [2010] NSWCCA 293; and

6. R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316.

240. The Crown written submissions did not use the word “range” nor did they suggest that the six cases were to be used on sentence beyond the propositions taken from Hili v The Queen (referred to at [238] above).

241. Nothing was said in oral submissions before the District Court concerning the use to be made of the six sentencing decisions contained in Annexure “B” to the Crown submissions.

242. As the extracts from the sentencing remarks make clear, the sentencing Judge came to mention these decisions after an extensive examination of objective and subjective factors arising in the case and relevant sentencing principles. It is helpful at this point to repeat what her Honour said in this respect (ROS35-36) (emphasis added):

““Furthermore, the Court must consider where this case sits within our system of precedent. That is, the Court must ensure that the offender is sentenced consistently with other offences of like kind to avoid a sense of grievance for any offender whose sentence falls outside the pattern of appropriate sentencing. The pattern of appropriate sentencing can be hard to discern because, as noted in the authorities, each case involves a complicated and intricate matrix of circumstances peculiar to that particular case.

In this matter, there are several cases supplied within exhibit A by the Crown under annexure B, I have had regard to those cases. I adopt annexure B and annex it to my sentencing remarks without reading out all of those matters. I have ensured that the sentencing outcome here falls within the type of sentencing range that arises from a consideration of cases referred to the Court. Equally, the Court relies on an experience of sentencing for these types of offences over many years.”

243. The sentencing Judge appears to have taken the following steps:

1. having considered the six sentencing decisions, her Honour said that “the Court must ensure the offender is sentenced consistently with other offences of like kind” to avoid a sense of grievance for an offender whose sentence “falls outside the pattern of appropriate sentencing”;

2. her Honour noted that “the pattern of appropriate sentencing” may be hard to discern because of differences between particular cases;

3. her Honour had regard to the six decisions in Annexure “B” which were, in effect, incorporated by reference into the sentencing remarks;

4. her Honour “ensured that the sentencing outcome here falls within the type of sentencing range that arises from a consideration of cases referred to the Court”;

5. her Honour relied as well “on an experience of sentencing for these types of offences over many years”.

244. The sentencing Judge had found that the present Applicant was a mentally disturbed and immature 18-year old when he committed serious offences. Findings had been made that the Applicant’s moral culpability was reduced and that the need for specific and general deterrence was moderated in his case.

245. What light was shed upon the sentencing of such an offender by the six decisions which her Honour took into account and applied to “ensure” that the sentencing outcome for the Applicant fell within “the type of sentencing range” that arose from consideration of those six decisions?

246. Annexure “B” to the Crown submissions revealed the following features of the six decisions:

Meadows v R

247. The 38-year old offender in Meadows v R pleaded guilty to one offence of using a carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) and one count of possession of child pornography contrary to s.70.1 Crimes Act 1958 (Vic). The grooming offence involved four online conversations with a police officer posing as a 12-year old girl over a one-week period. The possession of child pornography offence involved two image files, one in Category 1 and one in Category 4 within the CETS Scale: R v Porte at [16].

248. The offender had a mild brain injury, but there was no evidence to suggest that it contributed to his offending. There was an early plea of guilty and evidence of a pattern of alcohol abuse which may have contributed to the offending. He expressed remorse and played a role caring for his mother during illness.

249. The offender was sentenced to 12 months’ imprisonment for the grooming offence to be released on a recognizance release order after three months to be of good behaviour for nine months. For the possession of child pornography, he was sentenced to a community corrections order for 15 months.

250. On appeal, the sentences were held not to be manifestly excessive and leave to appeal was refused.

R v Engeln

251. The 33-34 year old offender in R v Engeln pleaded guilty to two offences of using a carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1), one offence of using a carriage service to transmit indecent material to a person under 16 years contrary to s.474.27A(1) Criminal Code (Cth) (punishable by a maximum penalty of seven years’ imprisonment), three offences of using a carriage service to procure a person under 16 years contrary to s.474.26 Criminal Code (Cth) (punishable by a maximum penalty of 15 years’ imprisonment) and one offence of possession of child exploitation material contrary to s.228D Criminal Code 1899 (Qld).

252. The offender had no prior criminal history. Over a four-week period, he engaged in sexually graphic and explicit online chats with a police officer posing as a 14-year old girl and engaged as well in communications over some months with a police officer posing as a 14-year old girl. The Applicant transmitted images of himself masturbating and arranged to meet the undercover officer with the intention of engaging in sexual activity with a person he believed to be a 14-year old girl. Upon execution of a search warrant, devices found contained 308 child exploitation images. The offender had a good employment history and displayed genuine remorse.

253. A series of sentences were imposed involving an order that he be released after nine months’ imprisonment upon a recognizance to be of good behaviour for three-and-a-half years.

254. An appeal against sentence was dismissed.

Cooper v R

255. The 25-year old offender in Cooper v R was sentenced for one offence of using a carriage service to access child pornography contrary to s.474.19(1), two offences of using a carriage service to transmit child pornography contrary to s.474.19(1), two offences of using a carriage service to procure a person under 16 years contrary to s.474.26(1), one offence of using a carriage service to cause child pornography to be transmitted contrary to s.474.19(1) and two offences of using a carriage service to groom persons under 16 years contrary to s.474.27(1) Criminal Code (Cth). In addition, the offender was sentenced for one offence of possession of child abuse material (at a time when the maximum penalty for this offence was imprisonment for five years).

256. Over the course of one day with each victim, the offender engaged in chats using assumed online identities with a 13-year old boy and with a 15-year old girl using the messenger profile of a 14-year old boy. He transmitted child pornography images to the intended victims and discussed masturbation. He committed grooming offences whilst on bail for six offences. There was evidence of lack of insight into his offending.

257. At first instance, a total sentence of imprisonment of seven years with a non-parole period of five years was fixed. On appeal, the overall sentence was reduced to imprisonment for five years and six months with a non-parole period of three years and nine months.

R v Costello

258. In R v Costello, the 48-year old offender was sentenced for one offence of using a carriage service to groom a person under 16 years contrary to s.474.27(1) and four offences of using the Internet to expose a person under 16 years to indecent material contrary to s.218A(1)(b) Criminal Code (Qld) (an offence punishable by a maximum penalty of five years’ imprisonment).

259. The offender pleaded not guilty and was convicted of the offences. He had no prior criminal history. He engaged in chats with a police officer posing as a 14-year old female on the Yahoo Message Program and MSN Messenger. He had sexually explicit chats with the assumed identity on 11 occasions over 10 days in a 31-day period. The offender gave the assumed identity instructions and encouragement to masturbate and to undertake other sexual activity on webcam. The offender exposed himself via webcam, but made no attempts to meet the person. The offender participated in an interview with police and claimed he thought the recipient was an adult male and that he did not believe that she was a child. He did not deny taking part in the chatroom conversations, but claimed they were a fantasy.

260. For the s.474.27(1) offence, the offender was sentenced to 27 months’ imprisonment to be released after 13.5 months upon entering into a recognizance to be of good behaviour for three years. On each of the remaining counts, he was sentenced to eight months’ imprisonment.

261. An appeal against conviction was dismissed and leave to appeal against sentence was refused.

Rampley v R

262. In Rampley v R, the 33-year old offender pleaded guilty to one offence of using a carriage service to groom a person under 16 years contrary to s.474.27(1). The offender had no relevant criminal history.

263. Over a period of four months, he engaged in sexually explicit chats with a police officer posing as a 12-year girl. He gave instructions on how to masturbate and sent adult pornographic videos and discussed a possible meeting for sex. His behaviour was said to be consistent with a diagnosis of paedophilia. The offender received treatment prior to sentence and had good prospects of rehabilitation.

264. The offender was sentenced to imprisonment for two years and nine months to be released after serving 18 months’ imprisonment. An appeal against sentence was dismissed.

R v Asplund

265. In R v Asplund, the 65-year offender pleaded not guilty to two counts of using a carriage service to groom a child contrary to s.474.27(1).

266. Over a period of about three months, the offender engaged in online sexual chats and telephone calls with a real victim under 16 years of age. The offender posed as a 27-year old male and made a number of enquiries about the girl’s sex life and asked for a picture of her genitals. The text messages included a planned meeting at a hotel for sexual purposes. The offender gave sums of money to the girl. The offender was employed as a fitter and turner. He had no prior convictions and had some degree of depression and loneliness. There were poor rehabilitation prospects.

267. On sentence in the District Court, the offender was sentenced to imprisonment for three years and six months with a non-parole period of one year and nine months.

268. A Crown appeal against sentence was allowed and the offender was resentenced to a total period of seven years’ imprisonment with a non-parole period of four years.

Comparison Between the Applicant’s Case and the Six Decisions

269. It will be apparent immediately that none of the six decisions involved sentencing an immature 18-year old offender, let alone one with a mental condition which served to reduce moral culpability and ameliorate the roles of specific and general deterrence. Of the six decisions, the youngest offender was 25 years old (Cooper v R).

270. On the other hand, it was the case that the Applicant’s offences involved real victims and not undercover police pretending to be young persons, as was a feature in four of the Annexure ”B” cases (Meadows v R; R v Engeln; R v Costello; Rampley v R). Real victims were involved in two cases (Cooper v R and R v Asplund).

271. The sentencing Judge was invited by the Crown written submissions (without challenge by the Applicant) to consider the six sentencing decisions for the purpose of obtaining “guidance as to the applicable unifying principles”. Her Honour considered the six decisions and then “ensured that the sentencing outcome” fell “within the type of sentencing range” arising from the six decisions. Her Honour did not explain, even briefly, the features of the six decisions which served to identify a “type of sentencing range” to be applied in the Applicant’s case.

272. It has been said that care should be taken to indicate to a sentencing Court the basis upon which other sentencing decisions are to be relied upon on sentence for a particular offender: R v Dinh (2010) 199 A Crim R 573; [2010] NSWCCA 74 at [60].

273. In Hili v The Queen, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at [48]-[49]) that consistency in federal sentencing “is not demonstrated by, and does not require, numerical equivalence” and that the “consistency that is sought is consistency in the application of the relevant legal principles”. Their Honours said (at [49]) that “when it is said that the search is for ‘reasonable consistency’, what is sought is the treatment of like cases alike, and different cases differently”. With respect to information concerning other sentencing decisions, their Honours said (at [52]-[54]) (footnotes omitted):

“53   Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases.

54   In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: ‘Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.’ But the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’. Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’ (emphasis added). When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned’.”

274. In The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [50], Bell and Gageler JJ said that “comparable cases decided by intermediate courts of appeal provide the most useful guidance to a sentencing judge” and that those “reasons reveal the mix of factors that were taken into account and will usually involve consideration of the appropriateness of the sentence imposed at first instance”.

275. In Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41, Gageler and Gordon JJ said at [83] (footnotes omitted):

“Sentences are not binding precedents, but are merely ‘historical statements of what has happened in the past’. As was said in Hili v The Queen, ‘[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits’ (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.”

276. As the extracts from the sentencing remarks set out earlier reveal, the sentencing Judge made careful and detailed findings by reference to factors including the objective gravity of the offences, the Applicant’s moral culpability and the weight to be given to specific deterrence and general deterrence in the circumstances of the case, in light of evidence concerning the Applicant’s mental condition at the time of the commission of the offences. Her Honour had regard as well to the Applicant’s age and immaturity at the time of the commission of these offences.

277. The question raised by this ground of appeal is whether, having undertaken a detailed analysis of the evidence and consideration of factors relevant to sentence, her Honour thereafter had regard in an erroneous fashion to other sentencing decisions to which reference had been made by the Crown. It is clear that her Honour was conscious of the need for care in considering other sentencing cases and was aware of the need to keep clearly in mind the particular circumstances of the case at hand.

278. The Applicant was 18 years old at the time of these offences. He had no prior criminal record. However, there had been incidents of a similar type which had occurred when he was 14 years old which gave rise to a police warning. As the sentencing Judge found, at the time of the offences, the Applicant was an immature and disturbed young man with a complex history of being bullied at school with consequential psychological harm and with self-destructive features and a pattern of serious depression. The Applicant’s case was far removed from those of the offenders in the six cases raised for consideration on sentence.

279. Principles concerning sentencing of young adult offenders had particular application in this case. They were summarised recently in Yildiz v R [2020] NSWCCA 69, where Simpson AJA and N Adams J said at [2]:

“The applicant was 18 years and 5 months at the time of the offence and had no prior convictions. The principles with respect to sentencing young offenders have been stated many times by this court: KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51; BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159. Recently, in Howard v R [2019] NSWCCA 109 Fullerton J (with whom Macfarlan JA agreed, Bellew J in dissent) observed at [13]:

‘It is not necessary to restate the principles articulated in a succession of authorities governing the sentencing of youthful offenders referred to by Bellew J, save to emphasise that the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20’s’.”

280. Although the Applicant was legally an adult, the evidence accepted by the sentencing Judge reflected a significant degree of immaturity which contributed to the offences. Added to this was the mental condition described by Mr McQuillen which her Honour found was causally linked to the offences.

281. There are few sentencing decisions for Commonwealth or State cybersex offences committed by young adult offenders.

282. In R v McGrath (2006) 2 Qd R 58; [2005] QCA 463, a 19-year old offender was sentenced for two offences of using the Internet with intent to procure a child under 16 years to engage in a sexual act (s.218A(1)(a) Criminal Code (Qld)) and three offences of using the Internet with intent to expose a child under 16 years to indecent matter (s.218A(1)(b) Criminal Code (Qld)). In allowing an appeal against a custodial sentence, the Queensland Court of Appeal had particular regard to the offender’s youth and immaturity.

283. In Puhakka v R [2009] NSWCCA 290, a 20-year old offender was sentenced to terms of imprisonment for offences of possession of child pornography contrary to s.91H(3) Crimes Act 1900 (NSW). On appeal, his sentence was reduced. After considering a number of other sentencing decisions, Blanch J (Macfarlan JA and myself agreeing) said at [15]-[16]:

“15    This survey of cases reveals a wide range of sentences. Despite that they are consistent in denouncing this offence and emphasising the need for deterrent sentences. The main factor differentiating the sentences appears to be the subjective factors relating to the offender including age, prior criminal history and prospects of rehabilitation.

16    In this case the key subjective circumstances are the young age of the offender, his lack of criminal convictions and his prospects of rehabilitation appear to be good. His offending behaviour arose from his isolated social situation. The assessment has been made that he may be able to unlearn that behaviour and he was a third year university student with a professional career in prospect. Dr Westmore said ‘I think his prognosis should be considered cautiously but perhaps with some optimism, particularly if he can continue the psychologist and particularly if therapy reveals that his primary or basic sexual drive is not of a paedophile type.’ The assessment of the sentencing judge was undoubtedly correct that special circumstances exist to vary the statutory ratio, it is appropriate now to re-sentence the applicant in order to give effect to that assessment. The re-sentencing should reflect the applicant’s prospects for rehabilitation.”

284. In the unusual circumstances of this case, I am satisfied that the Applicant has made good this ground of appeal. The sentencing Judge has used, as measuring sticks for determination of a sentencing range, a series of cases which are materially and significantly different from the Applicant’s case. No explanation was given by her Honour as to the features of these cases which served to furnish a range to be applied to the Applicant’s case.

285. I am conscious that her Honour went on to mention her own experience of sentencing for this type of offence. No reference was made to any particular case in that respect.

286. This Court should not place unwarranted burdens upon sentencing Judges to say more than is necessary when sentencing an offender. However, where, as in this case, a limited selection of quite different cases is treated as providing a sentencing range, without any explanation or elaboration being given as to what features supported that conclusion, it is difficult to see how this had come about without error infecting the sentencing process.

287. The limited selection of dissimilar cases did not give rise to a “sentencing range”, let alone one which her Honour was to apply “to ensure that the sentencing outcome” in the Applicant’s case fell within that “sentencing range”.

288. This Court should proceed upon the basis that the sentencing Judge applied these six sentencing decisions, in the manner stated in the sentencing remarks, to erect a sentencing range to be applied in sentencing the Applicant. In my view, her Honour fell into error in this respect.

289. I would uphold the third ground of appeal.

Resentencing the Applicant

290. As error has been demonstrated, it is necessary for this Court to exercise its own independent sentencing discretion for the purpose of determining whether lesser sentences should be imposed under s.6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

291. For the purpose of resentencing, the Applicant relied upon his affidavit sworn 26 January 2020 and the affidavit of his solicitor, Andrew Luong, sworn 18 March 2020.

292. It seems clear that her Honour’s recommendation that the Applicant enter into the Young Offenders’ Program, whilst in custody, has not been implemented.

293. The Applicant’s affidavit stated that he had sought psychological or psychiatric counselling since entering custody on 4 June 2019 without success. He has experienced health issues whilst in custody. The Applicant has been subjected to threats in custody, which revive memories of bullying which he experienced at school.

294. The Applicant is concerned that he has not had the opportunity to undertake psychological counselling which, as her Honour found, had been highly beneficial to him between April 2017 and June 2019.

295. The Applicant has been employed in custody in the print shop as a graphic designer.

296. Mr Luong’s affidavit annexes documents which indicate that, on 4 September 2019, the Applicant was assessed for and referred to participate in the Custody Based Sex Offender Program. However, on 12 February 2020, the referral was reviewed and it was noted that there was insufficient time remaining for the Applicant to complete that program.

297. As a result, the Applicant has not been able to continue, in any form, psychological counselling which had played a significant part in his path towards rehabilitation at the time he was sentenced on 4 June 2019.

298. The findings of the sentencing Judge concerning the objective gravity of the offences were not challenged in this Court and should be adopted for the purpose of resentencing.

299. The Applicant’s youth and immaturity are significant factors on sentence and his moral culpability was reduced by the mental condition found to exist on sentence. These aspects also served to reduce the significance to be given on sentence to specific and general deterrence: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

300. However, there were features of the offences which operated against the Applicant on sentence. This was a case where the guideposts to the appropriate sentence for the Applicant pointed in different directions: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476; [1988] HCA 14.

301. The Applicant’s offences involved real young victims. Cybersex crimes involving real young victims render the offences more serious: R v Fuller [2010] NSWCCA 192 at [35], [45].

302. Courts have emphasised the fact that cybersex offences involving communications by an offender with an undercover police officer posing as a child does not constitute a mitigating factor on sentence: Meadows v R at [12](a). An offence is no less reprehensible when an offender is communicating with a fictitious person believed to be a child: Rampley v R at [37].

303. In the present case, the Applicant was aware that at least some of the victims were 14 years old. Despite his own youth and immaturity, the Applicant was aware of the vulnerability of these victims and deliberately chose to take advantage of them with the offences not being committed on the “spur of the moment”: Director of Public Prosecutions v SJK and GAS [2002] VSCA 131 at [61]-[62].

304. Further, as noted earlier (at [126]-[128]), sentencing courts should approach cybersex offences involving real victims upon the basis that harm is done to those child victims: Adamson v R; R v Gavel.

305. In this case, there was a victim impact statement from Victim A which addressed that issue directly. As in Martin v R [2019] NSWCCA 197 at [75], one of the Applicant’s victims made a victim impact statement which recounted the harm done to that young girl as a result of his offending. It is necessary to take the victim impact statement into account for the purposes of ss.16A(2)(ea), 16AAA and 16AB Crimes Act 1914 (Cth).

306. Other young girls were harmed by the Applicant’s offences, as borne out by their messages to the Applicant which reflected fear, anxiety and distress as he placed increased pressure on them to provide him with child abuse images of themselves. The victims were exploited, threatened and manipulated by the Applicant for his own purposes.

307. In my view, it remains the case that sentences of fulltime imprisonment are the only appropriate sentencing options for these offences having regard to all the circumstances of the case: s.17A Crimes Act 1914 (Cth); s.5 Crimes (Sentencing Procedure) Act 1999 (NSW).

308. The six sentencing decisions relied upon by the Crown in the District Court assist by way of statements of principle contained in them. They do not assist by creation of a sentencing range to be deployed in the Applicant’s case. They are no more than examples of sentencing outcomes in dissimilar cases involving cybersex offences.

309. It is appropriate to maintain (with some rounding) the 25% discount to reflect the utilitarian value of the Applicant’s pleas of guilty to each Commonwealth and State offence. In accordance with principle, the Applicant’s contrition and remorse will be taken into account in his favour without quantification.

310. The custodial component of the sentences should reflect the minimum period which the Applicant should spend in custody having regard to all the circumstances of the case.

311. The Applicant’s prospects of rehabilitation and reduction of his risk of reoffending will be substantially enhanced, in the public interest, by an extended period of conditional liberty as part of the overall sentencing outcome.

312. For the purpose of s.6(3) Criminal Appeal Act 1912 (NSW), I am satisfied that lesser sentences should be imposed upon the Applicant.

313. The overall effective sentence will comprise a total sentence of imprisonment for 22 months from 4 June 2019 with the Applicant to be released after 11 months on 3 May 2020, in accordance with ss.19AC(1) and 20(1)(b) Crimes Act 1914 (Cth), by way of a recognizance release order upon his entering into a recognizance in the sum of $1,000.00 to be of good behaviour for three years.

314. The total effective sentence of 22 months’ imprisonment involves a measure of accumulation of the sentences for separate offences which involved different victims.

315. It is appropriate to repeat the recommendation made by the sentencing Judge that the Applicant should undergo psychological or psychiatric counselling as part of his recognizance.

316. I propose the following orders:

1. grant leave to appeal against sentence;

2. quash the sentences imposed upon the Applicant at the Sydney District Court on 4 June 2019;

3. in their place, sentence the Applicant as follows:

(i)   for the offence in Sequence 1, a fixed term of imprisonment for seven months commencing on 4 June 2019 and expiring on 3 January 2020; 

(ii)   for the offence in Sequence 3, imprisonment for 16 months commencing on 4 June 2019 and expiring on 3 October 2020; 

(iii) for Sequence 4, taking into account the offence in Sequence 10 under s.16BA Crimes Act 1914 (Cth), imprisonment for 18 months commencing on 4 August 2019 and expiring on 3 February 2021; 

(iv)   for Sequence 9, imprisonment for 18 months commencing on 4 October 2019 and expiring on 3 April 2021; 

(v)   with respect to each of the sentences for Sequences 3, 4 and 9, direct that the Applicant be released by way of recognizance release order on 3 May 2020, after serving 11 months’ imprisonment, upon the Applicant entering into a recognizance to be of good behaviour for a period of three years; 

(vi)   a recommendation is made that the Applicant undergo psychological or psychiatric counselling as part of his recognizance; 

(vii) confirm the forfeiture order made on 4 June 2019 under s.23ZD Crimes Act 1914 (Cth) with respect to the Applicant’s iPhone 6 seized by police on 27 March 2017.

317. N ADAMS J: I agree with the orders provided by Johnson J for the reasons provided by his Honour.

318. IERACE J: I agree with the orders proposed by Johnson J and with his Honour's reasons.

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Amendments

11 May 2020 - [316] - Corrected formatting.

Decision last updated: 11 May 2020