Kebriti v R

[2019] VSCA 275

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0241

MEHDI KEBRITI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P and BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 November 2019
DATE OF JUDGMENT:	27 November 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 275
JUDGMENT APPEALED FROM:	DPP (Cth) v Kebriti (Unreported, County Court of Victoria, Judge Marich, 17 October 2018)

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CRIMINAL LAW – Appeal – Sentence – Use carriage service to procure child under 16 for sexual activity – Use carriage service to transmit indecent communication to child under 16 – Plea of not guilty – Sentences of 3 years and 6 months (charge 1) and 18 months (charge 2) – Total effective sentence 4 years, minimum term 2 years and 3 months – Whether manifestly excessive – Intent to procure 12-year-old for penetrative sex – Highly indecent images – No discount for guilty plea – Sentences within range – Criminal Code (Cth) ss 474.26(1), 474.27A(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A J Patton	Valos Black & Associates
For the Respondent	Mr S Ginsbourg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
BEACH JA:

1. Following a trial in the County Court, the applicant was convicted of one charge of using a carriage service to procure a person under 16 years of age[1] and one charge of using a carriage service to transmit indecent communication to a person under 16 years of age.[2]  The maximum terms of imprisonment for these offences are 15 years and 7 years respectively.[3] 

   [1]Contrary to s 474.26(1) of the Criminal Code (Cth).

   [2]Contrary to s 474.27A(1) of the Criminal Code (Cth).

   [3]DPP (Cth) v Kebriti (Unreported, County Court of Victoria, Judge Marich, 17 October 2018) (‘Reasons’).

1. On 17 October 2018, following a plea hearing, the applicant was sentenced to a term of imprisonment of 3 years and 6 months on the procurement charge, and 18 months on the transmission charge.  The judge ordered that 6 months of the sentence on the transmission charge be served cumulatively on the sentence imposed on the procurement charge — making a total effective sentence of 4 years.[4]  The judge fixed a non-parole period of 2 years and 3 months. 

   [4]The cumulation of 6 months was effected by the judge ordering that the sentence on the transmission charge commence 2 years and 6 months after the sentence on the procurement charge.

1. The applicant now seeks leave to appeal his sentence on the ground of manifest excess.  He contends that the sentence imposed on each charge and the order for cumulation are all manifestly excessive.  For reasons which follow, we would reject that contention and refuse leave to appeal.

Circumstances of the offending

1. The applicant’s offending occurred during the course of a 40 minute online conversation with the complainant (‘T’) on an application known as ‘Skout’.[5]  At the time of the offending, the applicant was aged 36 and T was aged 11.  T’s Skout profile, however, listed his age as 31.  Over the course of their online conversation, the applicant and T exchanged messages of a sexual nature. 

   [5]In her reasons for sentence, the judge described Skout as ‘a social networking and dating application and website’.

1. Some three minutes after the conversation commenced, the applicant became aware that T was much younger than his listed age.  T told the applicant that he was 12 years of age and sent pictures of his penis and buttocks to the applicant.  The judge described those images as being ‘entirely consistent with [T’s], albeit false, claim, that he was 12 years old when he was actually 11’.[6]

   [6]Reasons [21].

1. The transmission charge arose from two occasions during the conversation when the applicant, after being made aware that T was a young boy, sent T pictures of his erect penis.

1. In the course of their online conversation, the applicant asked T if he wanted to ‘suck it’ (the applicant’s penis).  While in much of the conversation the applicant took the lead in making suggestions to T about sexual contact, it was T who first suggested that he wanted to engage in oral sex with the applicant.  As typed by him, the applicant’s statements to T included ‘Do you like sucking daddy cock?’ and ‘Do you like to come with daddy’.

1. During the course of the conversation, T asked the applicant if he wanted to meet.  There was discussion about meeting at a park.  T gave the applicant his mobile telephone number and asked him to call.  The applicant then called the number and spoke to T for approximately five minutes.  The content of the conversation is unknown.  On the resumption of online communication, T said that he would not ‘suck it’, but went on to say (again, as typed) ‘I like to kiss your Ballsack and kiss your lip and strip you’.  At the end of the conversation, T told the applicant that he would come to the applicant’s house in one hour.  In the event, no physical meeting between them took place.

1. The discussion which resulted in an agreement to meet for sexual activity was the factual basis for the charge of using a carriage service to procure a person under 16 years.  It is the use of the service for that purpose which constitutes the offence.  Put another way, the offence is complete whether or not the offender subsequently meets the child.[7]

   [7]R v Gajjar (2008) 192 A Crim R 76, 84 [46] (Maxwell P, Nettle and Weinberg JJA) (‘Gajjar’).

Sentencing reasons

1. The judge said that, while the applicant was not entitled to any discount for pleading guilty and had not shown any remorse, he had ‘willingly admitted a number of matters in a notice of agreed facts’ which had ‘facilitated proof of the prosecution case’.  Additionally, the applicant had provided two mobile phones, a laptop and several USB sticks to police upon his arrest.  The judge said that she would ‘allow some modest weight in mitigation of penalty to reflect the utilitarian value of those admissions and cooperation’.[8]

   [8]Reasons [22].

1. The judge then referred to a victim impact statement filed by T’s mother which described her anxiety and panic as a result of police arriving at her home and investigating the circumstances surrounding T’s ‘victimisation’.  The judge noted that the victim impact statement described the effects of the applicant’s offending upon T, observing among other things that T found it hard to engage in counselling because he did not like leaving school and drawing attention to himself.[9]

   [9]Ibid [25].

1. Next, the judge referred to the applicant’s personal circumstances, noting that he was born in Iran in 1978 and was 39 years of age at the time of sentencing.  At the time of his arrest, the applicant was employed as a painter, having fled Iran in 2012 due to persecution arising from his family’s political affiliations and his conversion from Islam to Christianity.  The judge noted that the applicant had successfully completed a mechanical engineering degree in Iran, and that prior to fleeing Iran he worked in the film industry.  His family, including the applicant’s wife, son, mother and two brothers, remained in Iran.[10]  The judge observed that the applicant had no previous criminal history and no other criminal offending was alleged by the prosecution.[11]

   [10]Ibid [27]–[36].

   [11]Ibid [37].

1. The judge noted that the applicant’s main language was Farsi and that there were no other Farsi speakers where the applicant served his period of remand and where he was likely to remain for the period of his sentence.  She accepted that a combination of this fact, together with the lack of family support in Australia, the absence of visits and limited contact with his family, and the prospect of his deportation, would mean that the applicant’s term of imprisonment may weigh more heavily upon him than upon other prisoners.  She said that she allowed for ‘some mitigation of penalty on that basis in the exercise of mercy’.[12]

   [12]Ibid [38].

1. Under the heading ‘Moral culpability’, the judge deprecated the applicant’s use of a number of terms during the course of the sexualised communications he had with T.  She said that, while terminology used by the applicant was also used by him in other conversations with consenting adults, it was ‘appalling’ for the applicant to have used the terms ‘daddy’ and ‘baby’ in his sexualised communications with T.[13]

   [13]Ibid [40].

1. The judge noted that the applicant was aware that he was more than 20 years older than T, that T was in fact only 11 years old, and that what was proposed by the applicant was ‘oral sex, which is penetrative sexual activity between an adult and an 11 year old’.  The fact that T was masquerading as a 12 year old was ‘of no difference whatsoever in criminality’.[14]

   [14]Ibid [41]–[43].

1. The judge then said that she considered the procuring offence to be a ‘serious example of the offence’.  As to the transmission offence, the judge said that she accepted the prosecution characterisation of this as being a ‘mid-range example of the offence’.[15]

   [15]Ibid [44].

1. The judge concluded her sentencing reasons by saying that general deterrence was a significant sentencing consideration for offending of the present kind, and that specific deterrence also required emphasis.[16]  The judge then referred to the need to punish the applicant and denounce his conduct, before observing that a central requirement in imposing a sentence was the imposition of a proportionate sentence that was ‘of a severity appropriate in all of the circumstances of each offence’.[17]

   [16]Ibid [45].

   [17]Ibid [45]–[46].

1. Finally, the judge noted the acceptance by both parties that, in the circumstances of this case, the only appropriate sentence was one of immediate imprisonment.[18] 

   [18]Ibid [47].

Parties’ contentions

1. The applicant contended that the judge had wrongly classified the procurement offence as a serious example of the offence and the transmission offence as a mid-range example.  Additionally, he contended, the judge failed to adequately moderate the sentence imposed in light of the matters found in mitigation.

1. In relation to the seriousness of the offending, the applicant emphasised that both offences were committed over the one 40 minute period;  he had not sought to target children, but rather had failed to cease his engagement with a child after becoming aware of his age;  the offending was of relatively short duration and opportunistic;  and the offending comprising the transmission charge formed an integral part of the conduct that constituted the procurement charge.

1. As to mitigatory factors, the applicant pointed to his background as a refugee from Iran, his family circumstances and his lack of any prior or subsequent criminal history.

1. In response to the applicant’s submissions, the respondent contended that the judge was correct when she said that the procurement offence was a serious example of that offence and the transmission offence was a mid-range example.  In support of that contention, the respondent submitted that there were two aggravating features of the applicant’s offending. 

1. First, while the offences created by ss 474.26(1) and 474.27A(1) of the Criminal Code can be committed by the sending of a relevant communication to a fictitious person represented to the sender as a real person,[19] in this case there was a real victim of the offences committed.[20] Moreover, s 16A(2)(d) and (ea) of the Crimes Act 1914 (Cth) requires the Court to take into account any harm suffered by a victim and the personal circumstances of any victim of a federal offence.

   [19]See s 474.28(9) of the Criminal Code which provides:

   For the purposes of sections 474.26, 474.27 and 474.27A, it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.

   [20]As to the capacity for the presence of an actual victim to aggravate offences under ss 474.26 and 474.27A, see R v Fuller [2010] NSWCCA 192, [35] (McClellan CJ at CL) (‘Fuller’);  DPP (Cth) v Singh [2017] VSCA 146, [44] (Redlich, Beach and McLeish JJA).

1. Secondly, the nature of the applicant’s communications with T involved ‘very sexually explicit language’.  In particular, the respondent relied upon what the judge described as the ‘appalling’ use of the word ‘daddy’.

Consideration

1. We see no error in her Honour’s description of the offending constituting the procurement charge as a serious example of that offence, or in her Honour’s description of the offending constituting the transmission charge as being mid-range. As to the procurement charge, the applicant became aware almost immediately that he was communicating with a young boy. Instead of desisting, he persisted over the course of a lengthy conversation to propose oral sex between himself and the boy, using highly sexualised language for that purpose. He went on to arrange a meeting with the boy, leaving no room for doubt that his aim was to procure the boy to engage in penetrative sex with him, as the judge correctly stated. For the purposes of s 474.26(1) of the Criminal Code, the ‘sexual activity’ to which the conduct was directed was at the serious end of the scale.

1. As to the indecent communication charge, a photograph of an erect penis is, of course, highly indecent.  The criminality constituted by the applicant’s transmission to a young boy of an explicit image of sexual arousal was quite separate from the criminality constituted by the conversation in which he sought to procure T for sex.

1. It is unnecessary for us to decide whether the presence of an ‘actual victim’ is to be regarded as an aggravating factor in offending of this kind.  It seems to us, with respect, that the offences as drafted assume an actual victim, that is, they assume that the offending conduct involves, or is directed at, a real person matching the description of the person with whom the offender believes he/she is dealing.  On that view, the correct approach would seem to be that expressed by this Court in Gajjar:[21]

An offender’s conduct was to be regarded as no less morally reprehensible merely because the person to whom the communication was made was, unbeknown to him, an undercover police officer.

[21](2008) 192 A Crim R 76, 85 [56] (Maxwell P, Nettle and Weinberg JJA).

1. What matters for present purposes is that the applicant offended against an 11 year old boy who, unsurprisingly, has suffered psychologically as a result.  We do not overlook the fact that T was the victim of separate, similar, offending but the harmful effects of this offending cannot be doubted.[22]

   [22]Adamson v The Queen (2015) 47 VR 268, 278-281 [11]–[20] (Warren CJ, Redlich and Weinberg JJA).

1. The applicant also sought to make good his complaints of manifest excess by reference to sentences imposed in other cases.  For example, the applicant submitted that, in Director of Public Prosecutions v Hanna,[23] the offending was ‘objectively far more serious than that of the applicant’ because the offender actually met the complainant, engaged in a second conversation and solicited child pornography.  The offender received an aggregate term of imprisonment of 3 years with a recognisance release order after 12 months. 

   [23][2018] VCC 576 (‘Hanna’).

1. Two points may be made about that case.  First, as pointed out earlier, the procurement offence is complete whether or not a meeting takes place.  In Hanna, as in the present case, the offender used the carriage service to procure a young boy to engage in oral sex.  The criminality was therefore comparable.  Secondly, unlike the present case, the sentence in Hanna was imposed following a plea of guilty.  The judge in that case indicated that, but for the plea of guilty, the offender would have been sentenced to 5 years’ imprisonment with a non-parole period of 3 years.

1. We would also draw attention to this Court’s decision in Cooper v The Queen.[24]  There the Court reduced the sentences on each of two procurement charges from 4 years’ imprisonment to 3 years’ imprisonment.  In that case, however, the sexual activity which the offender sought to procure was much less serious than it was in the present case.[25]  Moreover, as in Hanna, the offender in Cooper had pleaded guilty.

   [24][2012] VSCA 32 (‘Cooper’).

   [25]Ibid [31] (Neave, Mandie and Harper JJA).

1. There were two other cases upon which the applicant placed reliance:  Gajjar[26] and Fuller.[27]  In Gajjar, the offender received a sentence of 2 years and 6 months’ imprisonment, to be released on recognisance after serving 8 months’ imprisonment.  In Fuller, after a Crown appeal, the offender was sentenced to 18 months’ imprisonment to be released on recognisance after 6 months.  Once again, however, the sentences in Gajjar and Fuller were imposed following pleas of guilty. 

   [26](2008) 192 A Crim R 76.

   [27][2010] NSWCCA 192.

1. In our view, the sentences imposed and the order for cumulation made, by the judge, were well within range in the circumstances of the case.  In a case where (as he was entitled to) the applicant pleaded not guilty and fought his trial, he did not have the benefit of what might otherwise have been the significant mitigatory effect of a plea of guilty coupled with some remorse.  For obvious reasons, comparisons between the applicant’s sentence and other sentences where the offenders pleaded guilty are of limited utility. 

1. In our view it is not reasonably arguable that the sentences imposed by the judge were manifestly excessive.

Conclusion

1. The application for leave to appeal against sentence must be refused.

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