R v Asplund - [2010] NSWCCA 316

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Asplund Asplund v R [2010] NSWCCA 316

FILE NUMBER(S):
2009/5365

HEARING DATE(S):
24 September 2010

JUDGMENT DATE:
16 December 2010

PARTIES:
The Crown (appellant)
Kenneth Asplund (applicant/respondent)

JUDGMENT OF:
McClellan CJatCL Latham J Price J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/11/0237

LOWER COURT JUDICIAL OFFICER:
Nicholson DCJ

LOWER COURT DATE OF DECISION:
19 March 2010

COUNSEL:
P McGuire (Crown/appellant)
R Sweet (respondent)

SOLICITORS:
Commonwealth Director of Public Prosecutions (Crown/appellant)
Leader Law Group (respondent)

CATCHWORDS:
CRIMINAL LAW
whether the sentence was manifestly inadequate
whether the sentence imposed adequately reflected the criminality and nature of the offending
where Crown allege error in sentencing judge failing to fix a non-parole period within appropriate range
consideration of deterrence in case
CRIMINAL LAW
offender leave to appeal against sentence
whether the sentencing judge erred in concluding that the offender's character was of little value in the sentencing exercise
whether the sentencing judge erred in failing to state that the elements of general and specific deterrence should be given less weight where the offender is suffering from a mental illness

LEGISLATION CITED:
Criminal Code 1995
Crimes (Appeal and Review) Act 2001

CATEGORY:
Principal judgment

CASES CITED:
Ali v R (2010) NSWCCA 35
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Hili v The Queen and Jones v The Queen [2010] HCA 45
Leach v R [2008] NSWCCA 73
R v Berner (1998) 102 A Crim R 44
R v Bozinovski (Sydney District Court, 4 June 2009, unreported)
R v Gajjar [2008] 192 A Crim R 76; [2008] VSCA 268
R v Gent [2005] [2005] NSWCCA 370; 162 A Crim R 29
R v Kennedy [2000] NSWCCA 527
R v Letteri (unreported NSWCCA 60407/91)
R v O’Shana (ACTSC, Refshauge J, 1 August 2008, unreported)
R v Poynder (2007) 171 A Crim R 544
R v Rampley (Sydney District Court, 2 October 2009, unreported)
R v Shepheard [2008] ACTSC 116
R v Singh (Penrith District Court, 19 May 2009, unreported)
R v Sitt (1998) 102 A Crim R 428
R v Verdins [2007] VSCA 102
Scognamiglio (1991) 56 A Crim R 81
Tector v R [2008] NSWCCA 151
Western Australia v Collier (2007) 178 A Crim R 310
Wong v The Queen (2001) 207 CLR 584

TEXTS CITED:

DECISION:
1. The respondent’s application for leave to appeal is granted but the appeal dismissed.
2. The Crown appeal is upheld and the sentences in the District Court quashed. In lieu thereof in relation to count 1 the respondent is sentenced to a term of imprisonment of 3 years commencing on 19 March 2010 and expiring on 18 March 2013.
3. In respect of count 2 the respondent is sentenced to a term of 4 years imprisonment commencing on 19 March 2013 and expiring on 18 March 2017.
4. Fix a non-parole period of 4 years commencing on 19 March 2010 and expiring on 18 March 2014 when the respondent will be eligible for parole.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/5365
McCLELLAN CJ at CL
LATHAM J
PRICE J
THURSDAY 16 DECEMBER 2010

R v ASPLUND, Kenneth

Judgment

McCLELLAN CJ at CL: The offender (who for convenience I shall refer to as the respondent throughout these reasons) was convicted following a trial of the following offences contrary to s 474.27(1) of the Criminal Code 1995:
Count 1:Between 28 October 2006 and 1 January 2007 at Menai, in the state of New south Wales, being a person aged at least 18 years of age, used a carriage service, namely a Telstra internet service, to transmit a communication, which included material that is indecent, to ‘CF’ [the female child victim] who was under 16 years of age, with the intention of making it easier to procure CF to engage in or submit to sexual activity with himself.
Count 2:Between 28 October 2006 and 1 January 2007 at Menai, in the state of New South Wales, being a person aged at least 18 years of age, used a carriage service, namely a Telstra mobile service, to transmit a communication, which included material that is indecent, to CF who was under 16 years of age, with the intention of making it easier to procure CF to engage in or submit to sexual activity with himself.
The maximum penalty prescribed for each offence is imprisonment for 12 years and/or a fine not exceeding $79,200.
The respondent was sentenced as follows:
In respect of count 1 to a fixed period of 9 months imprisonment commencing on 19 March 2010 and ending on 18 December 2010;
In respect of count 2 to a period of 3 years imprisonment commencing on 19 September 2010 and ending on 18 September 2013.
The overall sentence was a period of 3 years and 6 months imprisonment. The sentencing judge provided a non-parole period of 1 year and 9 months.
Both the Crown and the respondent seek to appeal against the sentence which his Honour imposed. The sentencing judge made the following findings of fact:
Count 1 relates to communication via the Internet. It would appear the offender and Aussie Girl, as I will refer to her throughout these remarks, first made contact with each other in The Friendship Chat Room on 29 October 2006. He used the name Homie, she the name Aussie Girl. On 30 October 2006 there were a number of enquiries made about Aussie Girl's sex life by the offender:
Offender: "Have you had sex? Aussie Girl: No, that's coming soon. Offender: How soon? Aussie Girl: Dunno."
Offender: "Be careful, make him wear protection. Aussie Girl: I won't make him wear protection."
Offender: "Are you on the Pill? Aussie Girl: Yes. Offender: Smart girl."
Offender: "What was the hand job [you gave to one of your friend's boyfriends] like? Did he enjoy it?"
During this conversation on 30 October 2006 they exchanged given names and mobile phone numbers. Aussie Girl told the offender that she could not ring him, but was willing to text him using SMS. On 4 November 2006 there was a further chat in The Friendship Chat Room. There are three conversations relied upon by the Crown.
Offender: "I wish I was in the shower with you."
"Aussie Girl: [Jamie] is going to send me a pic of his thingie. Offender: Is he hot? Aussie Girl: Nope, but I don't know about his penis. Offender: Can I do that too? Aussie Girl: You do that then."
Offender: ‘Send me a pic of yours (genitalia).
The offender was reckless, being aware this material was probably indecent. He unjustifiably sent the material to Aussie Girl and engaged her in those conversations. The jury, by its verdict, makes clear that it was satisfied beyond reasonable doubt the offender's communications were aimed at making it easier for him to procure Aussie Girl to engage in sexual activity with himself. It was not a case of seeking instant gratification of his sexual fantasies, but rather he was placing his ideas of personal encounter out there for her consideration, and reducing the sense of foreignness or inappropriateness of the idea.
At this stage the sexual activity contemplated by the accused with himself as proved by the Crown is limited to a sexual activity of an indecent nature. There can be no doubt that the accused believed on 29 October 2006 that Aussie Girl was fourteen-years-old. He had said so at a time when he was watching the screen, namely 1:14:57. That is "14 f Australian". A minute or two before he had directly engaged Aussie Girl in conversation, and was at that time engaged in conversation with a third person when these details came on the screen.
The following day there is further discussion about her age. She again gives an age of fourteen. He too was untruthful about his age. She was in fact thirteen. At this time the offender, who was then sixty-one years old, told Aussie Girl he was twenty-seven.
The second charge relates to communications transmitted by use of mobile phones. Mobile phone numbers and given names between offender and Aussie Girl, had been exchanged on 30 October 2007- on the second Internet contact. On the following day there were four telephone calls. One minute, two minutes, twenty-seven minutes and nine minutes, each emanating from the offender's mobile phone. Thereafter there were 44 telephone calls over the 61 day period coming from the offender's mobile phone and 520 text messages sent from 17 November to 31 December, a period of 44 days, from the offender's mobile phone.
I am satisfied there were at least 120 further texts of multimedia messages sent between 30 October and 16 November, making a total in excess of 640 text and multimedia messages. Included among the multimedia messages he sent, was an explicit sexual photo of his erect penis. That was sent to the complainant on 4 November 2006 that is, within six days of his first contact with her.
He would text her asking whether it would "fit" and subsequently claimed in detail its size. He sought to arrange a meeting with Aussie Girl in an Adelaide hotel via mobile service communication for a spa, for sex and for a blow job. He sent an SMS message; "Have a sleep, long night ahead. I'm going to have one, LOL (laugh out loud) we can have one together if you like."
Another:
"I would love to be in the shower wid U we could have some fun, wot U think babe?"
There were other messages that while perhaps were not indecent, clearly point to grooming and his intent for sexual activity.
"Don't think that's not true I've told you before I never want it [money he had earlier sent] back cause I love you heaps."
"I love my girl and I don't want anything to happen to her."
"That's one word I'll always remember U FA maybeeeeeee you are so cute babe".
"If that's you [Aussie Girl], U are so beautiful lie, never let u go tell I marry U".
His intentions can also be gleaned from the attention he paid to her. He bombarded her with SMSs and multimedia messages including vague photos of himself. There were calls made to her mobile, sometimes several in a day.
While the phone calls were not daily, there were several in a week. The longest was 40 minutes, one was 27 minutes, five were longer than 10 minutes and 12 were longer than five minutes. In 61 days of contact, there was an unrelenting pursuit of her.
At his request he received an explicit photo from her of her vagina [ROI Q and A 149 -157] and of her breast. The evidence does not disclose whether he asked for the photo of her breast. I am satisfied he used the mobile phone service and/or SMS service to communicate with her about these photos. While these photos being sent inward to him do not constitute criminal acts of his, their significance is twofold. Firstly, they give evidence Aussie Girl's understanding of the relationship between them, extended to a level of sexual intimacy where she could and was expected to exchange photos, of a sexual nature with him, for his sexual arousal and gratification.
Secondly, it is a measure of the level of corruption that was achieved by him as a consequence of communications with her via phone and SMS/multimedia contact and to a lesser extent, Internet contact.
Thirdly, although not relevant only to him, it is a demonstration of how easily and quickly young children can be overcome by the power of a male adult and a desire to please.
A final aspect of his grooming her and inveigling her sense of dependence on him, was his gifting sums of money to her well beyond the original purpose of providing money so she could have credit for her mobile phone. The final sum was something in the order of two and a half thousand dollars in that 61 day period. Again, this conduct is not caught by any criminal charge but is strong circumstantial evidence pointing to his intentions of grooming her for sexual activity.
He told police in his record of interview in circumstances where she had discussed running away from her home in Adelaide, that she could come over and stay with him. Aussie Girl in her evidence to the Court said the offender always told me that he loved me and I was a really nice girl, I was beautiful. She said she started to feel close to him and that she liked him a bit more than a friend. On 16 November 2006, she announced that she was getting a new slender phone and would text the offender at 11.30pm. On 25 November 2006, it is clear Aussie Girl is seeking to communicate on the friendship page with the offender who appears to be deliberately spurning her, and then toying with her in a spiteful and hurtful way eg;
"Aussie Girl I have someone that I am chatting with. She's asked me4o marry her."
This conduct appears manipulative. It forms part of the grooming conduct in that it makes clear the offender expects subservience; that he is the one with the power. The communication is not indecent but it is strong evidence of grooming and an abuse of his power over her.
I am satisfied beyond reasonable doubt in the course of his mobile phone and SMS/multimedia communications, his fantasies of sexual activity with Aussie Girl, morphed into an intention to have sexual intercourse with her in one or more of the forms that that term is used in the Crimes Act 1900. He agreed in cross-examination that he sent her text messages about meeting in an Adelaide hotel for sexual purposes.”
At the time of the offences the respondent lived with his son, then aged 15. He was separated from his wife. The respondent was introduced to the internet and the use of chat rooms by his son. In part the respondent sought to put the blame for the objectionable sexual communications onto his son but, as the sentencing judge found, it is clear that the jury rejected this suggestion.
His Honour determined that the criminality of the respondent was found in his interference with the privacy of a child and her right to a healthy psychosexual development by:
“requiring her to feed into and gratify his sexual titillation and fantasies with a long term view of having her submit to sexual activity with him. There can be no denying that by the abuse or a power imbalance that necessarily exists between adults and children, he formed a destructive relationship with Aussie Girl. The power imbalance is demonstrated by his use of the internet to persuade her to send him photos of a highly intimate and sexual nature, by his access to resources to shower her with money and bombard her with communications, by his toying and manipulative internet exchanges earlier referred to.”
The sentencing judge determined that the respondent’s objective criminality should be informed by:
“Level of persistence in use of carriage service for grooming purposes.
Nature of indecent material communicated.
Extent to which the intent to future sexual activity with himself is exposed and developed.
The nature of the future sexual activity intended.
Age and power differential between victim and offender.
Nature of prior relationship between offender and victim.
The offender’s level of awareness and indecency and deliberateness in communicating.”
With those criteria in mind his Honour determined that the second count was the more serious offence. The first count involving the internet was committed to enable the respondent to identify and target “Aussie Girl.” However, the second count involving the use of the mobile telephone and its SMS and multi media facilities, involved a persistent communication for grooming purposes. Once the respondent had obtained the name and mobile phone number of “Aussie Girl” the internet became a subsidiary means of communication.
His Honour concluded that the offences reflected an abuse of power by the respondent having a corrupting influence on the development of appropriate attitudes to sex in the young victim with an adverse effect upon her psychosexual and emotional development. The sentencing judge concluded that the offences were of such seriousness that a sentence of full time custody was required.
The respondent was 65 years of age at the time he was sentenced. He was the youngest of 11 siblings. He is now estranged from his son.
He is a qualified fitter and turner who was employed at the time he was sentenced. His employer reported that he was punctual, well mannered and highly regarded. Although the respondent enjoys good physical health since his marriage failed he has become lonely, withdrawn and depressed. Since his arrest his depressive symptoms which were abating have increased.
Dr Rowe a neurophysiologist examined the respondent. He expressed the view to the sentencing judge “that his personality style, loss of wife, presence of cognitive deficits due to being afflicted with severe depression, together with the addictive nature of the internet led to his reckless and impulsive participation in the offences”. His Honour recorded that Dr Rowe believed that the respondent has cognitive weaknesses involving inattentiveness, lapse in concentration, attention to detail, weaknesses in executive function and response inhibition.
However, the sentencing judge did not accept that any cognitive deficits or an internet addiction played any part in the offender’s selection of “Aussie Girl” and pursuing her through internet and mobile services. His Honour was of the view that because the respondent had selected a 14 year old girl when adult females were available on the chat line he could not conclude that the offence was occasioned by addiction to the internet. However, his Honour was satisfied that depression and loneliness “contributed to [the respondent] becoming besotted with Aussie Girl as a potential sexual playmate, notwithstanding that all he was doing was contrary to her healthy development and was criminal.”
The respondent had no prior criminal convictions and was found to be a spontaneously generous man. His Honour determined that his service to the community was a “significant mitigatory matter.”
The sentencing judge determined that the respondent was in denial and refused to accept responsibility for some of his activities, in particular the transmission of sexual images to the complainant. In an attempt to avoid criminal responsibility he persuaded his son and a friend to make false statements to the police accepting responsibility for the transmissions. They subsequently disavowed their police statements and his Honour accepted their evidence. His Honour identified this as the second occasion, the first being the present offences, when he sought to corrupt young people to his own ends.
His Honour concluded that given the respondent’s failure to acknowledge his wrong doing and his social isolation the respondent may have difficulty in rehabilitating himself.
The Crown appeal
The Crown submitted that the sentence which was imposed failed to adequately reflect the criminality and nature of the offending. It was submitted that it failed to adequately take into account the maximum penalty and that accordingly there was “unjustifiable disparity” between the sentence imposed and that imposed on comparable matters. It was further submitted that there was a failure to adequately reflect general deterrence in the sentence.
With respect to the respondent’s criminality the Crown emphasised the nature and extent of the respondent’s communications. The respondent had showered his victim with money, bombarded her with communications and toyed and manipulated her in the internet exchanges. By transferring intimate personal photographs the respondent sought to break down conventional social barriers with a consequential corrosive impact upon the victim and her psychosexual and emotional development.
The Crown drew attention to a number of decisions by both appeal courts and sentencing courts when dealing with similar offences. Those decisions and the Crown summary of relevant matters was as follows:
Appeal Courts
R v Gajjar [2008] VSCA 268
Offence:1 x using a carriage service to procure a person believed to be under 16 years of age for sexual activity: s474.26(1) of the Criminal Code 1995
Plea:  Guilty
Facts:Offender aged 28 years, was married with one child and was of prior good character. Using an internet "chat room" entitled "Family Sex", engaged in sexually graphic and explicit communications with an undercover operative posing as a 14 year old female. The Offender initially pretended to be a 20 year old female then revealed later he was a male. A meeting was arranged to take place the next day. The Offender attended that meeting.
Sentence:Imprisonment for 2 years and 6 months; to be released on recognizance after serving 8 months
Result:                   The Offender's severity appeal was dismissed
Remarks:The period of this offence was of limited duration (2 days), relatively early plea of guilty entitled him to a substantial discount.
Tector v R [2008] NSWCCA 151
Offence:3 x using a carriage service procure a person under 16 years of age for sexual activity: s474.26(1) of the Criminal Code 1995.
Plea:  Not guilty
Facts:Offender sent emails and text messages to the victim over a period of about 6 weeks. Offender used a false name, was persistent in pursuing the victim and made a monetary offer. Offender had previous convictions relating to sexual misconduct with young children.
Sentence:Imprisonment for 11 years, 7 years non-parole for each offence.
Result:CCA severity appeal successful. Sentence quashed and in lieu sentenced to 8 years imprisonment with a non-parole period of 5 years.
R v Poynder (2007) 171 A Crim R 544
Offence:2 x using a carriage service procure a person under 16 years of age for sexual activity: s474.26(1) of the Criminal Code 1995. Placed on s16BA schedule: 2 x using a carriage service to menace, harass or cause offence: s474.17(1) of the Criminal Code 1995
Plea:  Guilty
Facts:The respondent contacted chat lines and also an undercover operative to arrange a meeting to have sex with a person he believed was 15 years old. The respondent offered money to the undercover operative to participate in sexual acts and attended an address given by her where he was arrested and found to be in possession of condoms, lubricant and a sum of money.
Sentence:Imprisonment for 3 years, to be released on recognizance after serving 1 year and 3 months.
Result: CCA:        Crown Appeal dismissed.
Supreme Court
R v Shepheard [2008] ACTSC 116
Offence:1 x using a carriage service to groom a person under 16 years of age for sexual activity: s 474.27(1) of the Criminal Code 1995 [maximum penalty: 12 years]
Plea:  Guilty
Facts:Offender was 50 years with prior dishonesty offences and a “trend of breaching probation orders”. Initial communications for 3 days, occurred between the Offender and a 14 year old male through a mobile phone based social networking system. An undercover operative assumed the identity of the 14 year old male for a period of almost one month. Over the one month period 800 messages (both text and multimedia/moves) exchanged. Although a meeting was discussed, it never took place.
Sentence:Imprisonment for 2 years and nine months; to be released on recognizance after serving nine months.
Remarks:Although there was a real victim, in the first 3 days, the Offender did not know the victim was 14 until the undercover operative revealed that he was 14.
R v O’Shana (ACTSC, Refshauge J, 1 August 2008, unreported)
Offence:2 x using a carriage service groom a person under 16 years of age for sexual activity: s 474.27(1) of the Criminal Code 1995 (counts 1 and 2) [maximum penalty: 12 years];
1 x using a carriage service to menace, harass or cause offence: s 474.17(1) of the Criminal Code 1995 (count 3).
Placed on s 16BA schedule: 3 x using a carriage service to menace, harass or cause offence: s 474.17(1) of the Criminal Code 1995
Plea:  Guilty
Facts:count 1 involved initial contact through an internet messaging service involving sexually explicit content and subsequent text messages with a 13 year old female, with whom the offender later met.
Count 2 involved a 14 year old female and intercepted internet chat which included suggestive and sexually explicit comments, questions as to knowledge of sexual acts and a suggestion that the victim move into the offender’s residence.
Count 3 related to internet communications with a 12 year old female and a subsequent meeting was arranged with this victim.
Sentence:Count 1: imprisonment for 3 years and 3 months commencing 15 June 2007;
Count 2: Imprisonment for 3 years commencing 15 September 2008;
Count 3: Imprisonment for 6 months commencing 15 June 2011.
To be released on 15 December 2008 to serve 12 months of sentence by way of periodic detention; thereafter released on recognizance to be of good behaviour for 4 years.
Remarks:               Plea of guilty on arraignment and no criminal record.
District Courts -
R v Rampley (Sydney District Court, 2 October 2009, unreported)
Offence:1 x using a carriage service to groom a person believed to be under 16 years of age for sexual activity: s474.27(1) of the Criminal Code Act 1995 (Cth) [maximum penalty: 12 years]
Plea:  Guilty
Facts:The offender was aged 33 years of age and of prior good character. Over a period of almost 4 months, the offender engaged in 7 online sexually explicit chats with an undercover operative who he believed was a 12 year old girl. There was no arrangement to meet however the offender did ask the recipient whether she would meet him and if they met he would try to have sex with her.
Sentence:Imprisonment for 2 years and 9 months; to be released on recognizance after serving 1 year and 6 months.
Remarks:The offender was remorseful and pleaded guilty at the earliest opportunity. 25% discount given for the early plea. He was also in a treatment regime with good prospects of rehabilitation.
R v Bozinovski (Sydney District Court, 4 June 2009, unreported)
Offence:1 x using a carriage service to groom a person believed to be under 16 years of age for sexual activity: s474.27(1) of the Criminal Code Act 1995 (Cth) [maximum penalty: 12 years]
Plea:  Guilty
Facts:The offender was aged 30 years and of prior good character. Over a period of days, the offender sent 265 text messages including sexual material to a 13 year old female. Arrangements were made to meet at a shopping centre when the aunt of the victim intervened. The aunt changed the meeting location to outside her house and confronted him when he turned up.
Sentence:Imprisonment for 2 years and 6 months; to be released on recognizance after serving 1 year and 6 months.
R v Singh (Penrith District Court, 19 May 2009, unreported)
Offence:1 x using a carriage service procure a person under 16 years of age for sexual activity: s 474.26(1) of the Criminal Code 1995.
Plea:  Not guilty.
Facts:The offender engaged in extensive online chat on 3 occasions with an undercover operative who he believed was a 14 year old girl. He arranged to meet the fictitious girl and was arrested before he could meet with her.
Sentence:Imprisonment for 4 years with a non-parole period of 2 years.

The Crown emphasised that general deterrence is of particular importance in sentencing for these offences. Because the offence can be committed by anyone with access to the internet or telephone and can prove difficult to detect the sentence must be sufficient to deter both the particular offender and others who may contemplate similar activity (see R v Poynder (2007) 171 A Crim R 544).
The Crown emphasised the remarks of Steytler P in Western Australia v Collier (2007) 178 A Crim R 310 at [43] and [47]:
“Anything less than an immediate term of imprisonment does not take sufficient account of the seriousness of the respondent’s offending behaviour or of the need to deter him, and others, from committing offences of this kind in the future. 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 to receive a term of immediate imprisonment. As with offences of child pornography .. there is a paramount public interest in protecting children from sexual abuse.
…
[T]his is a case in which it is necessary to impose a sentence of imprisonment to be served immediately. Anything less would significantly undervalue the seriousness of the appellant’s [sic] offending behaviour and the need for a deterrent sentence.”
Ground 2 of the Crown appeal
The Crown submitted that the sentencing judge erred in failing to fix a non-parole period within the range of 60% to 66% of the overall sentence. The ratio of the non-parole period of 1 year and 9 months fixed by the sentencing judge to the head sentence of 3 years and 6 months was 50%. It was submitted that by failing to impose a non-parole period within what was said to be the usual range meant that the sentence failed to recognise the serious nature of the offending.
This Court has previously identified that when sentencing for a Commonwealth offence the usual proportion between the non-parole period and the period on parole should be in the order of 60% to 66 2/3% (see R v Berner (1998) 102 A Crim R 44; R v Sitt (1998) 102 A Crim R 428). However, the court now has the benefit of the discussion of this issue by the High Court in Hili v The Queen and Jones v The Queen [2010] HCA 45.
In that case, which commenced as a Crown appeal to this Court in relation to the sentence for a taxation offence, the High Court rejected the suggestion that it was appropriate to identify a “norm” for non-parole periods for federal offences. Although “reasonable consistency” in sentencing is required what is required is ”the treatment of like cases alike, and different cases differently.” Consistency of that kind, so the plurality said, “is not capable of mathematical expression” [49].
The more recent contribution of the High Court to the jurisprudence relevant to sentencing particularly Wong v The Queen (2001) 207 CLR 584 and Hili have emphasised the importance of imposing a sentence appropriate to the individual offender and his or her offence. However, the identification of the appropriate sentence cannot be done without some understanding of the sentences which may have been previously imposed for the same offence. As the plurality emphasise past sentences can stand as a “yardstick against which to examine a proposed sentence” (Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, per Simpson J at [304]). But “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” [54].
A complete discussion of these issues raises issues of some complexity. However, for present purposes it is sufficient to recognise that merely because the non-parole period is not within a “usual range” does not mean that a sentencing judge has erred. Error will only be discerned after determining whether the correct principles have been applied and whether the sentence and the relevant proportions are appropriate in all the circumstances.
In the present case the sentencing judge’s remarks reveal a careful consideration of the circumstances of the applicant including his age and the harsh conditions which he could be expected to endure in his incarceration. It is apparent that these matters influenced his Honour in fixing the period of full time custody. Although I may not if sentencing at first instance have arrived at the same conclusion, the ratio of the non-parole period to the period on parole (as opposed to the sentence imposed) is not such as to require the intervention of this Court.
The respondent’s application for leave to appeal
The respondent joins issue with the Crown’s submission. He also seeks leave to raise four grounds of appeal against his sentence. They were:
1.That his Honour erred in concluding that there was some merit in the submission by the Crown that the appellant’s good character was “of little value” and, further, in concluding that he should give “more muted weight than I otherwise might have.”
2.That his Honour erred in his failure to state that the elements of general and specific deterrence should be given less weight in the case of an accused person suffering from a mental illness.
3.That his Honour erred in concluding that, in relation to the prospects of rehabilitation of the appellant, he was “more pessimistic than optimistic” when an examination of the character of the appellant would have led to the opposite conclusion.
4.That his Honour erred in finding that, at the request of the appellant, the appellant received an explicit photograph from [the victim] of her vagina area and of her breast and, further, that the appellant used the mobile service and/or SMS to communicate with her about these photographs.
I shall consider these grounds before resolving the Crown appeal.
The sentencing judge recognised some favourable qualities in the respondent. During the course of his remarks on sentence his Honour referred to the fact that there was evidence that apart from his devious use of generosity in the present case the respondent has been generous to other people. His Honour also recognised that the respondent had no criminal record. However, his Honour said this should be given “more muted weight” than in other cases.
Elsewhere in his remarks on sentence his Honour said that “for the purpose of the law he is regarded as a person of prior good character” and recognised his good standing in the community and the services which he had performed.
A reading of the entirety of his Honour’s remarks indicates that his Honour recognised the applicant’s good qualities but had reservations about the significance in relation to the present offence. There can be no doubt that his Honour was required to weigh these various matters. However, in R v Gajjar [2008] 192 A Crim R 76 the Victorian Court of Appeal recognised the importance of general deterrence when sentencing for offences of procuring for sexual purposes contrary to s 474.26(1) saying that “it follows from that proposition that it must be open to a sentencing judge to give less weight to prior good character, in such cases, than it might otherwise bear.” To similar effect are the remarks of this Court in R v Kennedy [2000] NSWCCA 527 at [21] and [22]. The situation is not dissimilar to the approach which has been taken to the sentencing of persons who import child pornography. In R v Gent [2005] [2005] NSWCCA 370; 162 A Crim R 29 at [64] this Court recognised that such offences are frequently committed by persons of otherwise good character and general deterrence is a “paramount consideration” when sentencing for this offence.
Mindful of the approach taken in these decisions I am not persuaded that the sentencing judge erred as contended in ground 1.
With respect to ground 2 the applicant submitted that error could be demonstrated from the fact that his Honour did not state that because of the applicant’s mental illness deterrence should be given less weight. The applicant drew attention to the well known authorities in which it has been indicated that when a person is suffering from a mental disorder or abnormality they may not be an appropriate medium for making an example to others (Scognamiglio) (1991) 56 A Crim R 81; R v Letteri (unreported NSWCCA 60407/91); Leach v R [2008] NSWCCA 73 at [10]-[12]; R v Verdins [2007] VSCA 102 at 32; Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 at [177].
I am not persuaded that his Honour has overlooked this issue. Although his Honour accepted that the applicant committed the offence following the break down of his marriage and at a time when he was depressed no submission was made to the sentencing judge that by reason of his “mental illness” the sentence should reflect a lesser consideration of deterrence. Although Dr Rowe concluded that the applicant was suffering from depression that does not explain the fact that he set about forming a friendship over the internet with a child, involving her in explicit communications and expressing a desire to meet her for sexual activity. There was no suggestion that the applicant’s depressive condition, if he was suffering from it at the time of the offence, contributed in any material way or reduced the applicant’s moral culpability. No doubt it is for this reason that a submission to this effect was not made to the sentencing judge.
I would reject ground 2.
With respect to ground 3 the conclusion expressed by his Honour was in my opinion open to him. Although the applicant has no prior convictions it is plain from the pre-sentence report that he has not taken responsibility for the offences and has offered a variety of excuses for his communication with the victim. He sought to provide an innocent explanation for his actions demonstrating a lack of remorse and insight into his offending. In these circumstances the finding which his Honour made was clearly open (Ali v R (2010) NSWCCA 35).
I reject this ground of appeal.
Ground 4
During the course of his remarks on sentence his Honour said “at [the applicant’s] request he received an explicit photo from her of her vagina and of her breast.” His Honour stated that he could not determine whether the applicant had asked for a photo of the victim’s breast but said that he was satisfied that he used his mobile phone and/or SMS service to communicate with her about these photos. His Honour concluded that this evidence indicated that “Aussie girl” understood the relationship between them to extend to a level of sexual intimacy where she was expected to exchange photos of a sexual nature with him for his sexual arousal and gratification. His Honour also said that it demonstrated the level of corruption achieved by the applicant.
His Honour relied upon the applicant’s record of interview for his conclusion. It was submitted by the applicant that because his Honour had rejected the applicant’s evidence it was not open to his Honour to rely on the record of interview when making his findings.
Examination of the applicant’s record of interview reveals that the applicant accepted that he received photos from the victim of a sexual nature. He told the interviewer that he received a photograph of her breasts and a photograph which he believed was a photograph of her “pussy.” He told the police that the image was indistinct and that he could not make it out until he had spoken with the victim.
The applicant emphasised that the prosecution was unable to tender any photographs at the trial. However, this is readily explained because with the passage of time the photographs were not retained on the relevant mobile telephones. The applicant also emphasised that during her evidence the victim said that although she understood she had been asked to send the applicant a photo of her vagina she did not recall sending him such a picture.
I am satisfied that there was evidence that the disputed photographs were sent. Part of the chat blog transcript on 4 November refers to an intended exchange of explicit photographs. There can be no doubt that the applicant had sent the victim a photo of his penis. The sentencing judge was entitled to rely upon the admissions in the applicant’s record of interview that he had received blurry photographs of the victim that she had told him they depicted her genitals and her breast.
I reject ground 4 of the applicant’s appeal.
Conclusion
It will be apparent that I have concluded that the applicant’s application for leave to appeal must fail. I have also concluded that ground 2 of the appeal by the Director of Public Prosecutions should be rejected. That leaves for consideration the submission on behalf of the Crown that the sentence imposed was manifestly inadequate.
I have previously recounted the circumstances of the offences. The respondent pleaded not guilty. He was convicted of 2 counts, one concerning the use of the internet service and the other a mobile telephone. The evidence reveals a determined and continuous history of communications designed to procure the complainant and have her engage in sexual activity. The offences were made more serious by the respondent forwarding money to the complainant. Not only did he communicate orally but he sent images of his penis and encouraged the complainant to send him images of her when she was naked.
The circumstances of the respondent’s offending involved a high level of criminality. His offending conduct over a significant period of time place his offending in the more serious category of offences. In his remarks on sentence the sentencing judge made the following observations which can be expressed in summary form:
“(a)referred to the respondent’s conduct as bombardment of CF with ‘indecent suggestion, graphic sexual images, solicit from her the same, all the while remaining anonymous from the authorities, hidden from those who love and have the child’s best interests at heart’;
(b)noted that the criminality in this conduct was ‘the interference with the child’s privacy, her right to a healthy psycho-sexual development, by requiring her to feed into and gratify his sexual titillation and fantasises with a long-term view of having her submit to sexual activity with him’;
(c)referred to there being an abuse of power and the formulation of destructive relationship;
(d)held that the respondent showered CF with money, bombarded her with communications and toyed and manipulated her in the internet exchanges;
(e)held that the transference of intimate person photographs was ‘designed to break down conventional social barriers to an acceptance by her of his penis for her’;
(f)held that the abuse of power in grooming CF must have had ‘some corrosive impact on her, so that she forgoes the normal sexual mores accepted by our society and becomes compliant with unhealthy demands and an interest in prurient suggestion;
(g)held that CF was a victim in the sense that her ‘psycho sexual development and emotions attached to them [were] traumatised’;”
To my mind each of these observations was appropriate. Apart from the high level of criminality which these observations indicate the respondent pleaded not guilty and has not given any indication that he accepts responsibility for his offending. Indeed he sought to deflect the responsibility for the offences to his son.
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.
In my judgment the sentences which were imposed on the respondent failed to adequately reflect his criminality and did not adequately recognise his response to his offending. Furthermore, the sentences were insufficient to adequately deter others from similar criminal behaviour. The sentencing judge concluded that count 2 was the most serious offence. I agree with that conclusion for the reasons his Honour gave. Having regard to the maximum penalty of 12 years imprisonment the sentences must be significantly increased.
The Crown submitted that s 68A of the Crimes (Appeal and Review) Act 2001 applies to this case. The decision in R v De La Rosa [2010] NSWCCA 194 has now been handed down. The majority decided that s 68A is applicable when sentencing for Commonwealth offences. Counsel for the applicant acknowledged the applicability of s 68A and submitted that double jeopardy is not to be taken into account on the appeal.
In my judgment the following orders should be made:
1.The respondent’s application for leave to appeal is granted but the appeal dismissed.
2.The Crown appeal is upheld and the sentences in the District Court quashed. In lieu thereof in relation to count 1 the respondent is sentenced to a term of imprisonment of 3 years commencing on 19 March 2010 and expiring on 18 March 2013.
3.In respect of count 2 the respondent is sentenced to a term of 4 years imprisonment commencing on 19 March 2013 and expiring on 18 March 2017.
4.I fix a non-parole period of 4 years commencing on 19 March 2010 and expiring on 18 March 2014 when the respondent will be eligible for parole.
LATHAM J: I agree with McClellan CJ at CL.
PRICE J: I agree with McClellan CJ at CL.
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LAST UPDATED:
8 February 2011