Onnis v The Queen

[2013] VSCA 271

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0241
STEVE ONNIS	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	24 September 2013
DATE OF JUDGMENT	24 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 271
JUDGMENT APPEALED FROM	R v Onnis (Unreported, County Court of Victoria, Judge Gamble, 10 October 2012)

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CRIMINAL LAW – Sentencing – Six charges of procuring sexual penetration by fraud, and one charge of attempted procuring sexual penetration by fraud – Whether judge erred in finding complainant to be only 16 – Whether judge erred in finding offending was sexually motivated – Whether total effective sentence of eight years with a non-parole period of five years manifestly excessive – Sentencing discretion reopened – Appellant resentenced to six years and two months’ imprisonment with a non-parole period of three years and six months.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr M D Phillips	Victoria Legal Aid
For the Crown	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA
COGHLAN JA:

1. This is an application for leave to appeal against a total effective sentence of eight years’ imprisonment with a non-parole period of five years imposed on the applicant on pleading guilty to six charges of procuring sexual penetration by fraud contrary to s 57(2) of the Crimes Act 1958 (‘the Act’) and one charge of attempting to procure sexual penetration by fraud contrary to ss 321M and 57(2) of the Act.

1. The individual sentences, orders for cumulation and other orders were as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958]	5 years [s 57(2) of the Crimes Act 1958]	33 months	33 months (Base)
2.	Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958]	5 years [s 57(2) of the Crimes Act 1958]	30 months	8 months
3.	Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958]	5 years [s 57(2) of the Crimes Act 1958]	30 months	12 months
4.	Attempted procuring sexual penetration by fraud [ss 321M and 57(2) of the Crimes Act 1958]	2 years [s 321P of the Crimes Act 1958]	15 months	6 months
5.	Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958] 5 years [s 57(2) of the Crimes Act 1958]	5 years [s 57(2) of the Crimes Act 1958]	30 months	12 months
6.	Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958] 5 years [s 57(2) of the Crimes Act 1958]	5 years [s 57(2) of the Crimes Act 1958]	33 months	13 months
7.	Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958] 5 years [s 57(2) of the Crimes Act 1958]	30 months	12 months
Total Effective Sentence			8 years
Non-parole period:			5 years
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:			16 days
6AAA Statement:  The learned sentencing judge stated that the sentence that would have been imposed if the applicant had been convicted of this offence after a trial would have been 10 years’ imprisonment, with the applicant becoming eligible for parole after serving 7 years of that sentence.
Other relevant orders:  Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958.  Sentenced as a serious sexual offender pursuant to s 6F of the Sentencing Act 1991 on Charges 3, 4, 5, 6 and 7.  To report for life pursuant to s 34 of the Sex Offenders Registration Act 2004

Facts

1. The applicant was born on 22 December 1975.  At the time the offending he was aged 35 and at the time of sentencing he was 36.

1. Between July and October 2007 he carried on an internet based relationship with a woman, AD, who lived in North America.  They corresponded in sexually explicit terms by internet chat services, internet telephone and mobile telephone.  During some of their communications, they exposed themselves to each other via webcam and on one such occasion the applicant made a recording of Ms AD removing her clothes and exposing her breasts to him.  The recording was made without her knowledge or consent.  Not long afterwards, she terminated the relationship.

1. The offences were committed between September and December 2011.  The complainants, RA, PA, EC, RJ, NA, SK and NJS were all young women.  RA was 16, RJ, NA, SK and NJS were 19 and PA and EC were 20.

1. The dates and particulars of offending were as follows:

Complainant	Date of offending	Offences
RA	Between 12.09.2011 and 13.09.2011	Charge 1:  procuring sexual penetration by fraud
PC	12.10.2011	Charge 2:  procuring sexual penetration by fraud
EC	20.10.2011	Charge 3:  procuring sexual penetration by fraud
RJ	Between 14.11.2011 and 26.11.2011	Charge 4:  attempted procuring sexual penetration by fraud
NA	15.11.2011	Charge 5:  procuring sexual penetration by fraud
SK	01.12.2011	Charge 6:  procuring sexual penetration by fraud
NJS	16.12.2011	Charge 7:  procuring sexual penetration by fraud

1. In each case, the applicant initiated contact with the complainant via advertisements on room-finding and sharing websites and text messages.  He pretended that he was a woman named ‘Melanie Hunter’ who owned an ‘adult services boutique business’.  After making contact with a complainant, he sent a text message to her requesting that, if she were interested in making some ‘extra money’, she contact him via the MSN chat network ‘Skype’.

1. When the complainant thereafter contacted the applicant, he used the webcam footage of Ms AD as if it were of footage of himself to induce the complainant to believe that she was communicating on line with Melanie Hunter.  Having so deceived the complainant, the applicant persuaded her to expose herself on the webcam and, in some cases, to engage in acts of sexually provocative conduct.  He told her that it was for the purposes of assessing her suitability for employment within ‘the company’ and that the next step would be contact with a company ‘scout’ with whom the complainant would be required to perform sexual acts.  He said that the meeting with the scout was necessary to ensure that the complainant could carry out the sexual acts in a ‘live situation’.

1. Each complainant, except RJ, then had a meeting with the applicant in which he sexually penetrated the complainant on the pretext either that she would be paid for her services or that he was assessing her ability to perform sexual acts for reward with ‘the company’ in a live situation.

1. In the case of RA, the applicant sent an email to the effect that the complainant would be paid $500 on the day after she had had sex with ‘the client’.  RA then attended at the designated address for ‘the client’ which was in truth the applicant’s home address.  There, the applicant introduced himself as ‘Scott’, as if he were the client, and then took RA to the bedroom and engaged in penile-vaginal intercourse and oral sex.

1. The applicant had no intention of paying RA the $500 and he did not pay her that or any other amount.  When she several times later requested payment by internet, he gave false excuses of ‘Melanie’ being out of the country and that ‘her grandmother had passed away and everything was on hiatus’.

1. In the case of PA, after the applicant had sent her repeated text messages encouraging her to meet one of the company’s scouts for sexual purposes, a meeting was arranged to take place at a suburban railway station.  The applicant again posed as a company scout named Scott and met her there.  From there, he walked her to his home close by.  They then performed oral sex on each other and he penetrated her anus digitally and with a vibrator.

1. In the case of EC, the meeting with the company scout was arranged to take place at the applicant’s home.  There, the applicant introduced himself as a company scout named Scott and they engaged in oral sex and penile-vaginal intercourse.

1. In the case of NA, the modus operandi was similar.  The applicant induced NA to go to his home where he introduced himself as a company scout named Scott.  They then performed oral sex on each other and he digitally penetrated her vagina.

1. In the case of SK, the modus operandi was similar again.  The applicant induced SK to go to his home where he again introduced himself as a company scout named Scott.  They performed oral sex on each other and engaged in penile-vaginal intercourse.  Later, he humiliated her by telling her that she had failed the audition.

1. In the case of NJS the approach was different.  After initial contact over the internet and by text, the applicant went to an hotel at which NJS was staying and introduced himself once again as a company scout named Scott.  Once inside, he provided her with a two page ‘Consent Declaration’ and ‘Services Provision’ to fill out.  It was a false document which he had created with information obtained from ASIC searches of legitimate corporations.  He then set up a video camera on a tripod and began filming NJS as she filled out the form.  He also asked her a number of questions calculated to create the illusion of a genuine job interview.  Then they performed oral sex on each other and engaged in penile-vaginal intercourse.

1. RJ was different again.  She did not meet the applicant.  Following the internet contact session, she told him that she did not wish to be involved and she ignored text messages which he later sent her in an attempt to persuade her to become involved.  Eventually, he sent her a text threatening her that, unless she engaged in acts of sexual penetration, he would release the webcam recording of her.  With that, she went to the police and reported the matter.  That is what led to his arrest.

Grounds of appeal

1. Three grounds of appeal were argued.  First, it was contended that the individual sentences and orders for accumulation are manifestly excessive (Ground 1).  Secondly, it was said that the judge erred in fact in finding that the applicant knew that the complainant RA was only 16 years of age (Ground 3).  Thirdly, it was contended that the judge erred in finding that the offending was sexually motivated (Ground 4).  A fourth ground of appeal (Ground 2) was withdrawn.  It is convenient to deal first with Grounds 3 and 4 and then with Ground 1.

Ground 3 – Knowledge of RA’s age

1. In remarking on the nature and gravity of the offences, the judge referred to the applicant’s knowledge of RA’s age as follows:

I have no doubt that in committing those offences in the circumstances that you did, you were confident that that [sic] there was little chance that any of your victims would tell the police about what you did.  You knew the victim of the offence alleged in charge 1, RA, to be particularly young, only 16.  You were persistent in your entreaties to ensnare the victim PA, and effectively wore her down.  Your callous follow up advice to the victim in charge 6, SK, to the effect that she was unemployable, was nothing short of cruel.  Viewed in its full context, it must be said that your offending in respect to these six charges bears a high degree of moral culpability.[1]

[1]Sentencing remarks, [67] (emphasis added).

1. In our view, the emphasised passage was incorrect.  There is no issue that RA was only 16 at the time of the offending but, as counsel for the applicant pointed out, there was evidence (in the form of a video recording of her interview with police on 10 February 2012) that she told the applicant that she was 21 years of age.  We take leave to doubt that the applicant believed that to be so.  But there is no evidence sufficient to establish beyond reasonable doubt that he knew that she was only 16.

1. It also appears that the judge’s finding that the applicant knew that RJ was only 16 may have been material, because the judge imposed the greatest individual sentence for the offending against RJ.

1. It follows, we think, that Ground 3 must be allowed with the result that the sentencing discretion is reopened.

Ground 4

1. If it matters, we do not think that there is any substance in the contention advanced under Ground 4 that the judge erred in finding that the offending was sexually motivated.  What his Honour said on the subject was this:

Also of concern is your relative lack of insight into your current offending and its consequences for the victims, and your previous attempts to minimise the seriousness of your prior stalking offence.  In my view, you have also sought to downplay the seriousness of your current offending and to obscure the real motivation for it.  For example, you told Dr Jager that your offending arose from your loneliness and was for companionship rather than sex.  You told him that you were not a sexual predator.  I do not accept those statements.  The sexually motivated nature of your offences is clear from the manner in which you committed them.  You went to great lengths to ensnare your victims and your conduct has a predatory aspect to it.  That said, I have no doubt, based on Dr Jager’s report, that if you are able to successfully complete a sexual offender’s course of the type he recommends, then your prospects of rehabilitation will be enhanced.[2]

[2]Sentencing remarks, [75].

1. With respect, we see no error in that.  Self-evidently, the offences were sexually motivated.  If a man is lonely and looking for companionship he looks for a companion.  It is not an offence to do so.  If, however, a man fraudulently induces a succession of naïve young women to provide their sexual service gratis, he is not seeking companionship.  He is using fraud to get sex cheaply.  And it is an offence to do so.  His Honour would have been in error to come to any conclusion other than that the applicant was a sexual predator whose offences were calculated to satisfy his perverse sexual predilections.

Ground 1: Manifest excessiveness

1. That leaves the question of whether the sentence was manifestly excessive.  In the view which we take of Ground 1, the sentencing discretion is re-opened and must be exercised afresh.  That means that the issue of manifest excessiveness does not arise as such.  Inasmuch however, as counsel’s submissions on the subject are pertinent to the resentencing task, it is appropriate to say something about them.

1. Given that the maximum penalty for the offences of procuring sexual penetration by fraud is only five years’ imprisonment and, therefore, that the individual sentences which the judge imposed were in most cases half the maximum (and, in two cases, more than half the maximum), it appears the judge regarded the nature and gravity of the offences as tending towards the upper end of the range.  With respect, we are inclined to disagree.

1. Compared, say, to a doctor or other healthcare professional who abuses his position of trust and confidence in order to deceive a patient to subject herself to an act of sexual penetration,[3] we consider that individual offences of the kind committed in this case tend to rank lower in the scale.  Arguably, too, they are less serious than the offence of a man who procures sexual penetration by making a fraudulent promise to marry a woman or even by pretending that he is single and unattached.  No doubt, a prostitute has just as much right to be protected against fraud as a woman to whom the idea of selling herself is anathema.  But there is a substantive difference.  If a prostitute is fraudulently induced to forego her fee, her complaint is that she has not been paid what is owing.  And she can be compensated by payment of what is due.  It is otherwise, however, and generally speaking likely to be more serious, where a woman is deceived in respects which go beyond the measure of money. 

   [3]Stubley v Western Australia (2011) 242 CLR 374; Brennan v R [2012] VSCA 151; Wilson v R (2011) 33 VR 340; R v Stuart [1999] VSCA 41.

1. In this case, each of the complainants except RJ was induced to subject herself to acts of sexual penetration on the faith of a fraudulent misrepresentation that she could thereby qualify to be retained to provide sexual services for reward.  Had she been so retained and rewarded, she would have had little cause for complaint.  Thus, despite the despicable nature of that kind of offending, we do not think that, of itself, it ranks as especially grave.

Re-sentencing

1. We turn to the task of re-sentencing.  As the judge took care to point out, each of the offences in this case was attended by aggravating circumstances which added to its seriousness.  They included the fraudulent use of the internet with consequent capacity to undermine public trust and confidence in that important medium of communication; the deliberate targeting of attractive young women; the cynical exploitation of their lack of worldliness and the trust which they placed in the applicant; the fraudulent production and deployment of documents to aid in the deceit; the filming and photographing of sexual activity on each occasion; the failure to desist from the offending until caught by police; and, in the case of Charge 4, the applicant’s conduct was threatening and intimidating.  The offences were also charged on a rolled-up basis with the effect that each charge included multiple offences.[4]  All things considered, the offending was relatively serious and the applicant’s moral culpability was high.

   [4]R v Jones [2004] VSCA 68 [13] (Charles JA); R v Beary (2004) 11 VR 151, 156 [11]-[14] (Callaway JA).

1. Additionally, the applicant had prior convictions for theft and sexually motivated stalking, he stood to be sentenced as a serious sexual offender on Charges 3 to 7, he was lacking in relevant insight and his prospects of rehabilitation were no better than reasonable.

1. As against all that, as the judge observed, it is necessary to balance that the applicant entered an early plea of guilty, and made substantial admissions, and, therefore, is entitled to a discount on sentence to reflect the utilitarian value of the plea and his co-operation.  

1. Balancing as best we can those competing considerations, we shall re-sentence the applicant as follows:

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958]	5 years [s 57(2) of the Crimes Act 1958]	30 months	6 months
2.	Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958]	5 years [s 57(2) of the Crimes Act 1958]	30 months	6 months
3.	Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958]	5 years [s 57(2) of the Crimes Act 1958]	30 months	9 months

4.	Attempted procuring sexual penetration by fraud [ss 321M and 57(2) of the Crimes Act 1958]	2 years [s 321P of the Crimes Act 1958]	15 months	3 months
5.	Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958] 5 years [s 57(2) of the Crimes Act 1958]	5 years [s 57(2) of the Crimes Act 1958]	30 months	9 months
6.	Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958] 5 years [s 57(2) of the Crimes Act 1958]	5 years [s 57(2) of the Crimes Act 1958]	33 months	Base
7.	Procuring sexual penetration by fraud [s 57(2) of the Crimes Act 1958] 5 years [s 57(2) of the Crimes Act 1958]	30 months	8 months
Total Effective Sentence			6 years 2 months
Non-parole period:			3 years 6 months
Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:			365 days not including this day
6AAA Statement: But for the plea of guilty, the sentence which would have been imposed would have been a total effective sentence of seven years and six months’ imprisonment with a non-parole period of five years.
Other relevant orders:  Forensic sample order pursuant to s 464ZF(2) of the Crimes Act 1958, confirmed.  Sentenced as a serious sexual offender pursuant to s 6F of the Sentencing Act 1991 on Charges 3, 4, 5, 6 and 7, confirmed.  To report for life pursuant to s 34 of the Sex Offenders Registration Act 2004, confirmed.

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