Meadows v The Queen
[2017] VSCA 290
•11 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0113
| AARON MEADOWS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | FERGUSON CJ and MAXWELL P |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 June 2017 |
| DATE OF JUDGMENT: | 11 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 290 |
| JUDGMENT APPEALED FROM: | DPP v Meadows (Unreported, County Court of Victoria, Judge Dyer, 1 May 2017) |
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CRIMINAL LAW – Appeal – Sentence – State and Commonwealth offences – Grooming – Use of carriage service – Knowingly possess child pornography – Sentence 18 months – Recognisance release order – Community corrections order – Whether order uncertain – Discrepancy between order pronounced on sentence and formally recorded – Clerical error – No uncertainty – Whether manifestly excessive – Guilty plea – Remorse – Personal circumstances – No ‘real’ victim – Gravity of offending – Aggravation – Sexually explicit language – Leave to appeal refused – Sentencing Act 1991 s 104A(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R de Vietri with Mr J Van Arkadie | Victoria Legal Aid |
| For the Respondent | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
FERGUSON CJ
MAXWELL P:
The applicant pleaded guilty to the Commonwealth offence of using a carriage service to groom a person under the age of 16.[1] He had four online conversations, using the apps ‘Teenchat’ and ‘Skype’, with a person he believed to be a 12-year-old female from Perth. In fact, she was a covert police officer. The applicant used sexually explicit and graphic language.
[1]Criminal Code (Cth) s 474.27(1).
In pronouncing sentence, the judge fixed a sentence of 12 months’ imprisonment, and directed that the applicant be released after having served three months of the sentence, on an undertaking to be of good behaviour for ‘the remaining nine months of the term of imprisonment’. The recognizance release order[2] signed by the judge, however, identified the good behaviour period as being for 12 months. That disparity forms the basis of ground 1.
[2]Criminal Code (Cth) s 20(1)(b).
The applicant also pleaded guilty to the State offence of knowingly possessing child pornography.[3] The pornographic images were found on the applicant’s computer following execution of a search warrant. In respect of this offence, the applicant was sentenced to a 15-month community correction order (‘CCO’), to commence upon his release from prison. Special conditions for supervision, assessment and treatment for alcohol abuse or dependency and participation in programs addressing the offending were attached to the CCO, in addition to the mandatory conditions.
[3]Crimes Act 1958 s 70(1). Section 70 was repealed by pt 2 of the Crimes Amendment (Sexual Offences) Act 2016. That Act introduced more detailed provisions dealing with sexual offences. Section 51G is the new equivalent provision to the old s 70.
The applicant seeks leave to appeal against his sentence. For the reasons which follow, the application must be refused. Nevertheless, to correct the mistake in the order, we would direct that it be amended to confirm that the recognizance period is nine months, not 12.
The grooming
At the time of the offending, the applicant was 38 years old and lived with his parents at their home in suburban Melbourne. Between 19 and 26 November 2014, the applicant participated in four online conversations with a female he believed to be 12 years old and located in Perth. As we have said, the female was in fact a covert police officer.
During the course of the conversations, the applicant asked the female about her height, weight and breast size; said that he was 38 but preferred young girls; told her that he was in love with a 23-year-old in real life; asked her for ‘sexy’ photographs; asked if she would ever be in a sexual relationship with ‘a guy in his 30s’; told her that he wanted her to perform a sexual act with him; asked her if he was someone she would date if they lived in the same city; when she pointed out that they did not live in the same city, he asked her to think that they did; when she told him that she was not used to ‘dream-land’, he told her that if she was not willing to pretend, he would not bother. The applicant then blocked the covert police officer from further contact.
The applicant pleaded guilty to a grooming offence under s 474.27 of the Criminal Code (Cth). That section provides:
474.27 Using a carriage service to ‘groom’ persons under 16 years of age
(1) A person (the sender) commits an offence if:
(a)the sender uses a carriage service to transmit a communication to another person (the recipient); and
…
(c)the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and
(d)the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(e)the sender is at least 18 years of age.
Penalty: Imprisonment for 12 years.
The child pornography offence
Some time after the grooming offence was committed, the police executed a search warrant at the applicant’s home. They seized his computer and other electronic devices. The computer had two pornographic images on it. One fell within category 1 of the model for child exploitation material of the Australian National Victim Image Library. That category is described as ‘Depictions of Children with No Sexual Activity — however must be sexually suggestive or sexual in nature.’ The other pornographic image on the applicant’s computer fell within category 4 of the model. That category is described as ‘Non-penetrative sexual activity, between child and adult(s).’
At the relevant time, s 70 of the Crimes Act 1958 provided that a person who knowingly possessed child pornography was guilty of an indictable offence.[4] It carried a maximum penalty of 10 years’ imprisonment.
The judge’s sentencing reasons[5]
[4]Section 70 has been repealed. See fn [3] above.
[5]DPP v Meadows (Unreported, County Court of Victoria, Judge Dyer, 1 May 2017 [1]–[33]) (‘Reasons’). There is an additional section of the document ([34]–[46]) which records discussion between the prosecutor and the judge (‘Discussion’).
The judge noted that the applicant was 40 years of age at the time of sentencing and lived with his parents.[6] The applicant’s mother and one of his sisters provided references for him but his relations with his father and another sister had been substantially damaged as a consequence of the nature of his offending.[7]
[6]Reasons [4].
[7]Reasons [4]–[5].
The judge accepted that the applicant had not intended to meet with the person to whom he spoke nor had he told her to keep the conversations a secret.[8] The judge also accepted that the applicant had not used inducements or threats.[9]
[8]Reasons [8].
[9]Ibid.
In respect of the Commonwealth offence, the judge took into account the following:
(a)although there was no aggravation by the existence of an actual victim, the absence of a victim did not mitigate the offending;[10]
(b)there were four relatively short online conversations;
(c)the applicant did not intend to actually engage in physical sexual activity with the child with whom he believed he was communicating;
(d)the applicant had a mild brain injury, acquired when he suffered a fall in 2012, although there was no evidence to suggest that this was a contributing factor to the offending;
(e)the applicant’s early plea of guilty;
(f)the applicant’s pattern of alcohol abuse may have contributed to the offending;
(g)the applicant’s remorse, and his intention to avoid similar activity in the future; and
(h)the applicant’s role in caring for his mother during a current illness.[11]
[10]Reasons [10(i)], [13].
[11]Reasons [10(ii)]–[10–(viii)].
The judge referred to a series of authorities which emphasise the need for courts to take into account the paramount public interest in protecting children from sexual abuse.[12] The judge noted the prosecution’s concession that the offending did not involve aggravating features that were present in some other cases.[13] As a Commonwealth offence was involved, the judge took into account sentences imposed in other States and Territories.[14] Among them was R v Nahlous,[15] which we discuss below.
[12]R v Gajjar (2008) 192 A Crim R 76; R v Asplund (2010) NSWCCA 316; R v Nahlous [2013] 273 FLR 232 (‘Nahlous’).
[13]Reasons [19].
[14]R v Pham (2015) 256 CLR 550.
[15](2013) 273 FLR 232.
In respect of the State charge, the judge noted that:
·the principles of general deterrence must be afforded paramount consideration in sentencing child pornography offenders;
·although there were only two images and the offending was at the ‘ultimate low end of the spectrum of this offending’, the possession of child pornography must be punished significantly; and
·the maximum sentence had recently been increased from five years’ imprisonment to 10 years.[16]
[16]Reasons [14]–[17].
The judge noted, in relation to that charge, that the applicant had been assessed as suitable for a CCO. The report from Community Corrections referred to his epilepsy, suffered as a result of his brain injury, and his receipt of a disability pension, which might impact upon a requirement that he perform unpaid community work.[17] The judge observed that the report recommended participation in a CCO for a period of at least 15 months.[18] The judge sentenced the applicant on the State charge to a CCO for that period and, as noted above, imposed specific conditions.
Was the period of good behaviour on the recognizance to be a period of nine or 12 months? (Ground 1)
[17]Reasons [22].
[18]Ibid.
The judge’s reasons record the sentence on the Commonwealth charge in the following terms:
On charge 1, you will be convicted and sentenced to a term of imprisonment for 12 months. This term of imprisonment will commence today, 1 May 2017. I direct, however, that you are to be released after serving three months of this sentence, upon your recognizance and upon an undertaking that you will be of good behaviour for the remaining nine months of that term of imprisonment.[19]
[19]Reasons [24] (emphasis added).
Following the pronouncement of the sentence, the Crown prosecutor offered to draw up the recognizance release order.[20] The prosecutor checked with the judge about the amount to be paid[21] and then, having done that, asked if the good behaviour period was to be for 12 months.[22] The judge responded ‘Yes.’[23]
[20]Discussion [36]–[38].
[21]Discussion [38]–[41].
[22]Discussion [42].
[23]Discussion [43].
The Record of Orders records the sentence on the Commonwealth charge as:
Convicted and sentenced to 12 month/s imprisonment
THE COURT ORDERS the release of the defendant under paragraph 20(1)(b) of the Crimes Act 1914 after serving 3 months of the term of imprisonment by recognizance of $500.00 to comply with the following condition:
(a) that the defendant is to be of good behaviour for 12 months.[24]
[24]Emphasis added.
The applicant contends that it is unclear what the judge intended when imposing the sentence in respect of the Commonwealth charge. He submits that the judge ‘erred by creating uncertainty and ambiguity about the sentence imposed’, by pronouncing orally and recording in his reasons a recognizance period of nine months but signing orders for a recognizance period of 12 months. He submits that this amounts to a specific error of law, vitiating the sentence on the Commonwealth charge and re-opening the sentencing discretion on that charge as re-opened.
The Director relies on s 104A(1) of the Sentencing Act 1991 to correct what she contends is either a clerical error or one ‘arising from an accidental slip’. Section 104A(1) provides:
(1)The judge or magistrate who gave judgment or passed sentence, or purported to give judgment or pass sentence, on the trial or hearing of an offence may, on his or her own initiative or on an application made on behalf of the defence or the prosecution, amend the judgment or sentence or purported judgment or sentence if satisfied—
(a) that it contains—
(i) a clerical mistake; or
(ii) an error arising from an accidental slip or omission; or
(iii)a material miscalculation of figures or a material mistake in the description of any person, thing or matter; or
(iv)a defect of form; or
(b)that it fails to deal with a matter that it would have undoubtedly dealt with in accordance with the amendment if the attention of the judge or magistrate had been drawn to it.
Section 104A(5A) provides:
In determining an application for leave to appeal against a judgment or sentence or in determining the appeal, the Court of Appeal may direct the amendment of the judgment or sentence to which the application or appeal relates if satisfied of the matters referred to in subsection (1)(a) or (b), whether the application is granted or refused or the appeal is allowed or dismissed.[25]
[25]By virtue of s 68(1) of the Judiciary Act 1903 (Cth), these provisions apply even though the offence is a Commonwealth offence. Section 68(1) provides that the laws of a State respecting, and the procedure for, the hearing and determination of appeals arising out of a criminal trial apply to persons who are charged with offences against the laws of the Commonwealth. The equivalent Commonwealth provision to s 104A of the Sentencing Act 1991 is 19AHA of the Crimes Act 1914 (Cth).
The applicant submits that the judge’s error cannot be rectified under s 104A(1)(a) or (b) of the Sentencing Act 1991. He contends that the error was either a fundamental confusion about the sentence which the judge was imposing, or a fundamental misunderstanding of how the Commonwealth sentencing regime operates. If the Court corrected the error, the applicant says, it would be substituting a different sentence to the one recorded and that would clearly be beyond the power given by s 104A.
The applicant relied on three authorities as support for his submission that the sentence was void for uncertainty. On examination, however, those authorities do not assist him. In R v Liddy,[26] the offender pleaded guilty and was to be sentenced for one count of discharging a firearm, contrary to s 32AA(3) of the Criminal Law Consolidation Act 1935 (SA). In fact, there were two instances where the offender had discharged a firearm. The sentencing judge did not make it clear which of the two instances constituted the charge and in respect of which she imposed the sentence on the offender.
[26][2014] SASCFC 70.
The Full Court held that the sentence was uncertain.[27] That is a far cry from the facts in this case. There the sentencing judge omitted to mention a critical matter that went to the core of the sentencing task. In contrast, the judge in the present case pronounced the sentence in clear terms.
[27]Ibid [26]–[28] (Peek J, Stanley and Nicholson JJ agreeing).
In R v GVV,[28] the accused successfully appealed against his conviction. He also appealed against his sentence. In this regard, the orders for cumulation referred to a count on which the accused had been acquitted. Having allowed the appeal against conviction, it was unnecessary to deal with the appeal against sentence. In passing, Lasry AJA (with whom Maxwell P and Ashley JA agreed) observed that the orders for cumulation and statement of the total effective sentence revealed an error on the face of the record due to his acquittal on the count that was wrongly included in the orders.[29] His Honour observed that the error vitiated the sentence and would have re-opened the discretion.[30] Again, the error there went to the offence for which the sentence was imposed. That is not analogous to the error here, which relates to the terms of the sentence.
[28][2008] VSCA 170.
[29]Ibid [8].
[30]Ibid [8].
Finally, in R v Jennings[31] the sentence pronounced was incorrectly recorded. In addition, the judge had not taken into account pre-sentence detention served by the offender. The Crown conceded that this could be corrected by the Court resentencing the offender (Jennings). In those circumstances, Tadgell JA (with whom Brooking and Phillips JJA agreed) stated that ‘all the recording errors will therefore be overtaken when, by virtue of this Court’s resentencing of Jennings, the existing records will become obsolete or irrelevant with respect to him.’[32] It was the failure to take into account the pre-sentence detention that re-opened the sentencing discretion, not the incorrect recording of the sentence.
[31][1998] VSC 334.
[32]Ibid 9–10.
In our view, the misstatement of the recognizance period in the order was a clerical error, or the result of an accidental slip. It follows that this Court may correct the mistake pursuant to s 104A of the Sentencing Act 1991. That correction does not, however, re-open the sentencing discretion.
Manifest excess
The remaining grounds of appeal are, in substance, particulars of ground 2, which contends that the sentence on the grooming charge, and the total effective sentence, were manifestly excessive. One of the grounds deals specifically with the judge’s consideration of the decision in Nahlous, and we deal with that first.
In Nahlous, the offender pleaded guilty to six internet offences, one count of grooming a person under 16 for sexual activity and five counts of sending indecent material to a person under 16. He was sentenced to 18 months’ imprisonment, which was fully suspended on condition that he enter into a recognizance release order of three years’ duration to be of good behaviour and to be supervised by Probation and Parole. The Director of Public Prosecutions appealed.
The victim was 14 years old and lived across the road from the offender, who was 31 years old. They knew each other’s age. The victim had invited the offender to be her Facebook friend and they communicated by that means and by phone and text message. The offender used his real name and a contemporary photograph on Facebook. He encouraged the victim to keep their communications secret. The conversations began as social chat but soon developed a sexual element. There were more than 1,700 communications over the course of a week. There was no suggestion of pornographic material passing from the offender to the victim during the communications. The offender had emigrated from Lebanon; had worked very hard to buy a house as soon as possible; his wife suffered from serious health issues and later left him to return to Lebanon; and he was isolated from his family, all but two of whom lived in Lebanon.
The New South Wales Court of Criminal Appeal held that the sentence was not manifestly inadequate. Adamson J (with whom Hoeben CJ at CL and Davies J agreed) referred to what had been said in Tector v The Queen,[33] as to the two steps routinely taken by adult and child victims resulting in child sexual abuse. First, the adult wins over the trust of the child and second, once trust is established, the adult sets up a meeting with the child.[34] Adamson J noted that the offender’s conduct did not fall within that typical pattern.[35] Her Honour noted that the objective seriousness of the offending was considerably less than that in another case to which the Crown had referred. She observed that the ‘purpose of general deterrence would not be enhanced by requiring a custodial sentence to be imposed in every case, regardless of the objective seriousness of the offence under consideration.’[36]
[33](2008) 186 A Crim R 133.
[34]Ibid 147 [85].
[35]Nahlous (2013) 273 FLR 232, 243 [80].
[36]Ibid 243 [84].
The sentencing judge in the present case referred to Nahlous as follows:
Nahlous was said to be the most analogous case as it involved contact over a period of some six days, albeit with far greater quantities of communications and involving an actual victim. I note that in that case, the initial sentence did not involve an immediate custodial term of imprisonment. I do note, however, the comments of the Court of Appeal in that case stating:
The respondent’s conduct did not fit within the typical pattern. The victim knew who the respondent was and where he lived and she invited him to be her Facebook friend. The respondent used his actual name and disclosed his actual age. Although he referred to sexual topics, he did not send any images to the victim or refer to any sexual conduct of his own while they were communicating. No meeting was actually arranged. At times, the respondent referred to the need to wait because of her age. Although the respondent once initiated the prospect of a meeting it is not clear whether the suggestion was made in jest. That he rebuffed the victim’s suggestions that they meet is another indication that he does not conform to the typical pattern.
In my view, the nature and circumstances of your offending is quite distinguishable from the facts in Nahlous. Your offending is, in my opinion, of a more typical nature in relation to the grooming of children and necessarily requires a different sentencing approach.[37]
[37]Reasons [20]–[21].
The applicant also referred to remarks which the judge made about Nahlous after he had pronounced the sentence during an exchange with the prosecutor about the recognizance release order. In this regard, the judge said:
I do not say this further to the sentencing remarks that are already given but [for] the benefit of Mr Meadows and his counsel, in particular, it’s the nature of the conversations that took place, require by way of specific deterrence and general deterrence, take it out of the category of Nahlous and require an immediate sentence of imprisonment, at least for a relatively short period.[38]
[38]Discussion [45].
The applicant contends that these passages disclose two errors of analysis. First, he contends, his physical remoteness from the victim made his offence less serious than the offending in Nahlous, because it reduced the likelihood that the grooming would lead to actual sexual activity. Secondly, it is said, the explicitness of the language he used should not be viewed as making his offence more serious. He contends that ‘it is dangerous to focus solely on how sexually graphic the language is, without having regard to the intention behind the language’. What is of greater significance, he argues, is whether the conduct is ‘intended to secure the trust and cooperation’ of the victim, with a view to engaging the child in sexual activity. In this case, there was a ‘complete absence of any methodical and deliberate tactic to build trust’.
Dealing more generally with the manifest excess ground, the applicant relies on what he says was the ‘relatively low objective gravity’ of the offending on charge 1. He also relies on his early plea of guilty, his remorse and his personal circumstances. He points to the lack of aggravating circumstances, in that:
·he did not falsify his identity or try to conceal it;
·he did not encourage the female to keep the conversations secret;
·he did not use coercion, threats or inducements;
·the language he used was not ‘vile, violent or manipulative’;
·he did not encourage the female to engage in specific sexual acts;
·there was no suggestion of a physical meeting;
·his descriptions of physical sexual activity were closer to the realm of fantasy than in other cases;
·there was no actual victim;
·the communications were limited in volume (45 messages in total);
·the communications were of limited duration (3 dates in one week); and
·his level of persistence was at the lowest end.
The applicant also focussed attention on the following mitigating features:
·he terminated the communications of his own volition;
·he pleaded guilty at an early opportunity; and
·he was remorseful and ashamed and had a desire to avoid similar activity in the future.
As to his personal circumstances, the applicant pointed to the fact that he had only one prior conviction;[39] he had disclosed the full nature of his offending to his family with whom he continued to live; he acted as informal carer for his mother who was 71 and was being treated for a brain tumour;[40] he had a mild intellectual impairment; he had a history of alcohol use which may have contributed to some degree to his offending; he had been abstinent from alcohol for about two months at the time of sentencing; he was medicated for mild epilepsy since his brain injury in 2012; his offending was related to his suffering psychological symptoms related to depression (for which he was taking medication).
[39]For obtaining property by deception for which he was fined $1000.
[40]It was not put that this was a matter of an exceptional circumstance of family hardship (Crimes Act 1914 (Cth) s 16A(22)(p)) but rather as a relevant factor in assessing the overall impact that a term of imprisonment would have on him.
The applicant referred to authorities which the Crown conceded on the plea hearing were more serious than his case. The first two were Rampley v The Queen[41] (a sentence of two years and nine months’ imprisonment was imposed, with release on recognizance after one year and six months) and R v Gajjar[42] (a sentence of two years and six months’ imprisonment was imposed, with release on recognizance after eight months).
[41][2010] NSWCCA 90 (‘Rampley’).
[42](2008) 192 A Crim R 76 (‘Gajjar’).
The applicant submits that the total effective sentence is manifestly excessive, although he accepts that, in isolation, the State charge is not so. He notes that the offending on the State charge was properly described by the judge as at the ‘ultimate low end of the spectrum’ and contends that the 15 month CCO was at the highest end of the range of available sentences reasonably open. In the applicant’s submission, the combination of the CCO and the 12 month term of imprisonment was manifestly excessive and failed to give proper regard to the principle of totality.
Finally the applicant contends that the judge erred in concluding that imprisonment was the only appropriate sentence. Asserting that the objective gravity of the grooming offence was ‘at the lowest end of the spectrum’, he argues that a sentence other than imprisonment (that is, a CCO) was appropriate. He relies on the principle of parsimony and s 17A of the Crimes Act 1914 (Cth).[43] The applicant further contends that the judge proceeded on the erroneous assumption that he could not impose a CCO in respect of the Commonwealth charge.
[43]Section 17A(1) of the Crimes Act 1914 (Cth) provides: (1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
Consideration
In our view, it was well open to the judge to impose the sentence which he did. In particular, there was no error in his Honour’s conclusion that the seriousness of the conduct giving rise to the grooming charge required a period of actual imprisonment.[44]
[44]See Western Australia v Collier (2007) 178 A Crim R 310, 321 [43].
Although the communications in question took place over a limited period, they exemplify the very kind of predatory conduct which it is the object of this provision to prevent. The applicant, a man of 38, believed he was talking to a 12-year-old girl. His sole purpose was to use this very young girl as the vehicle for his own sexual gratification.
As the Director pointed out in her written submissions, it was clear from the repeated, sexualised and offensive messages which he sent her — including his request for ‘sexy pictures’ — that he wanted to engage in sexual activity with her. He graphically described what type of sexual conduct he wished to engage in, and specifically asked if she would appear on a web camera for him so that he could masturbate.
He was, in short, seeking to enlist the active participation of a very young girl in the playing out of his own sexual desires. In these circumstances, the fact that the offender and the victim were geographically remote from each other was irrelevant. The applicant’s pursuit of his sexual objectives at no time depended on making direct contact with the victim. It was both necessary and sufficient for his purposes that the victim ‘just think we do live in the same city’. It was precisely because she was ‘not willing to pretend’ that he ended the contact.
Contrary to the applicant’s submission, the explicitness of the language he used in his communications did make the grooming offence more serious. It may be accepted that the building of trust is very often a necessary part of the grooming process. Equally often, however, the objective of procuring the victim’s participation in sexual activity is advanced by the use of explicit images and/or language. This is evidently done in order to introduce the victim to what the offender has in mind and to test whether the images or description provoke any adverse reaction.
It is unnecessary to set out the explicit language which the applicant used in his communications. Suffice it to say that he described, in very graphic terms, how he envisaged having sexual intercourse with the (imagined) 12-year-old girl. That the applicant was prepared, for his own gratification, to use such descriptions in communicating with a child is directly relevant, in our view, to his moral culpability. The harmful effect of exposing a child to very explicit sexual language is self-evident.[45] These considerations go to the seriousness of the offence, in our view, irrespective of the fact that there was no actual victim.
[45]See Adamson v The Queen (2015) 301 FLR 385.
Before the sentencing judge, the Director cited extracts from a series of appellate decisions which provide valuable guidance in a case such as this. In Gajjar,[46] the Victorian Court of Appeal made clear that general deterrence is the paramount consideration when sentencing for offences of this kind. The Court endorsed the judgment of the Western Australian Court of Appeal in Collier, where that Court had stated:
It is important to say, as clearly as one can, that adult persons who make use of the internet to locate, and make contact with, children so as to procure them to engage in sexual activity can ordinarily expect a term of immediate imprisonment … . There is a paramount public interest in protecting children from sexual abuse.
[46](2008) 192 A Crim R 76.
Similarly, in Nahlous the New South Wales Court of Criminal Appeal observed:
There is a significant public interest in protecting children from conduct that inappropriately sexualises them at an age where they are ill-equipped to protect themselves or respond either appropriately or in their own interest.
In R v Asplund, McClellan CJ (with whom Latham and Price JJ concurred) said (in relation to grooming offences):
The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity.[47]
[47]Crown submissions on sentence [8]–[10] (citations omitted).
In the present case, the applicant’s reliance on the Crown concession that the offending in Rampley[48] and Gajjar was more serious than in his case does not advance his cause. The sentences in each of those cases were much lengthier.[49]
[48][2010] NSWCCA 90.
[49]See [38] above. In Rampley a sentence of two years and nine months’ imprisonment was imposed with release on recognizance after one year and six months and in Gajjar a sentence of two years and six months’ imprisonment was imposed with release on recognizance after eight months.
Before this Court, the applicant relied on Director of Public Prosecutions (Cth) v Walls,[50] a case involving a plea of guilty to a charge of using a carriage service to procure a person under 16 to engage in sexual activity, contrary to s 474.26(1) of the Criminal Code (Cth). The offender also pleaded guilty to three lesser related charges. On the main charge, he was sentenced to 18 months’ imprisonment and released immediately on a recognizance release order to be of good behaviour for two years.
[50][2014] VSCA 323 (‘Walls’).
There were three victims aged between 14 and 15. The offender was in his mid-20s. He became their Facebook friend and, through that platform and text messages, he repeatedly sent each victim sexually explicit messages over a nine month period. This Court described the sentence as very light but held that it was not outside the range of sentences permissibly open to the judge.[51] That a lesser sentence was imposed in Walls, and was held to be within range, does not mean that a like sentence must necessarily be imposed here, nor that the sentence that was imposed here must be manifestly excessive. It is not a precedent. That there is a range necessarily means that various sentences of different types and length are permissible.
[51]Ibid [24].
So far as the addition of the CCO for the State offence is concerned, that does not elevate the total effective sentence to one that is outside the range reasonably open to the judge. Possession of child pornography must be denounced. In combination with the sentence on the Commonwealth charge, the 15 month CCO (some of the conditions being targeted towards assisting the applicant to rehabilitate) was appropriate. It does not lead to a total effective sentence that was not open to the judge to impose.
Conclusion
The application for leave to appeal will be refused. Nevertheless, we will direct that the sentence be amended to reflect that the recognizance period is nine months not 12.
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