R v Brendan Russell Sinclair

[2012] ACTSC 151

R v BRENDAN RUSSELL SINCLAIR
[2012] ACTSC 151 (28 September 2012)

REMARKS ON SENTENCE

No. SCC 376 of 2007

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              28 September 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCC 376 of 2007
AUSTRALIAN CAPITAL TERRITORY )          

R

v

BRENDAN RUSSELL SINCLAIR

ORDER

Judge:  Higgins CJ
Date:  28 September 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. Brendan Russell Sinclair be convicted on one count of using a carriage service to groom a person under 16 years of age.

2. Brendan Russell Sinclair be sentenced to two years and nine months of imprisonment commencing 2 August 2012. 

3. That the sentence be suspended forthwith upon a good behaviour order for a period of three years pursuant to s 20 of the Crimes Act 1914 (Cth), upon further condition that Brendan Russell Sinclair accept the supervision of ACT Corrective Services and obey all reasonable directions for that period, including, but not limited to undertaking programs and/or counselling as directed, particularly in relation to sex offending.

4. That Brendan Russel Sinclair forfeit three mobile phones identified in the Crown application under s 48(2) of the Proceeds of Crime Act 1999 (Cth). 

1. Mr Sinclair (the offender) came to police notice after certain conversations between him and a juvenile over a networking forum hosted by a mobile phone company came to light.  I will refer to the juvenile as ‘J’.  Other details I will omit for the purposes of privacy of others as they are otherwise unnecessary.

1. J became a customer of the forum from January 2007.  He provided a birth date indicating he was then 16 years of age.  The offender used a pseudonym of “Ben”.  He stated he was 28 years of age, from Sydney.  In fact, he was 38 years of age.

1. Communication began on 3 April 2007.  Initially, whilst sexual, the communications were not overtly obscene.  The offender accepted J as 16 years of age at first, though he seemed under the impression sex was “legal” if J was 15 years of age.  He did reveal he had a long term boyfriend, “Nick”, but even so, invited J to come and stay with them, apparently to engage sexually with persons more his own age.  He also shared his own past, much of it very sad, but confirmed in the presentence report.  He referred to this to reassure J that he and “Nick” would protect him.  He did reveal (on 6 April 2007) that he had infected himself with HIV when he was 17 and was not risking transmission of the disease.  In fact, he had been raped at that age and so infected.

1. At about this time, indeed, on 1 April 2007 another offender, Keith Shepheard, was corresponding with J.  It was when J’s mother found communications from him on J’s computer, it became the subject of police investigation which then included this offender.  It seems from some of the communications the offender was aware of other predators and, whether altruistically or not,…