R v Brendan Russell Sinclair
[2012] ACTSC 151
•28 September 2012
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:
Brendan Russell Sinclair be convicted on one count of using a carriage service to groom a person under 16 years of age.
Brendan Russell Sinclair be sentenced to two years and nine months of imprisonment commencing 2 August 2012.
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.
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).
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.
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.
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.
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, was warning J to be “safe”.
The transmissions were clearly pornographic but, until 10 April 2007, proceeded under the assumption J was 16 years of age. On that day, J, apparently, revealed he had threatened another cyber correspondent that he would “call cops”. The offender responded:
When you said about that guy the fake you would call cops ... I knew ‘cos sixteen legal so knew you were just a baby I figured that ... so I knew you were fourteen or fifteen
J stopped communications on 13 April 2007. That followed discovery of his activity on line by his mother. The offender until then had not suggested having sexual engagement with J, though the communications to a 14 or 15 year old boy were clearly both pornographic and offensive.
Police set up an undercover operation, assuming J’s identity. The first communication to the undercover officer (UCO) was received by him on 14 June 2007.
Mr Shepheard called the offender on 24 June 2007, though their conversation is not recorded, but as a result the offender texted the UCO warning “Steve is dangerous” (a reference to Mr Shepheard). He also said, somewhat ironically:
Police are monitoring him and will end up on your doorstep wanting info and then your mum will find out you’re gay and everything.
Again, there was nothing in these messages to indicate the intent part of the charged offence. It does emerge later in the communications with the UCO.
An intent to introduce persons of his own age to engage with J in sexual acts would not suffice for this particular offence. On 2 July 2007 there appeared an SMS from the offender to the UCO. It invited J to stay with the “two other gay guys”, that is, the offender and “Nick” – it included the statement “and even watch to learn what to do wif guys if ya want lol!!”
A sexual act by the offender in the presence of J would suffice for the intent.
Other messages were more explicit. For example, on 17 July 2007, the offender messaged:
...Me and nick would both lick and suck your cock.
and a little later:
Can suck till blow load down my throat or put a condom on and Fuck me stupid lol or maybe you rather be one who gets Fucked.
On 23 July 2007, as part of an apparent attempt to arrange for J covertly to come to Sydney to stay with him and “Nick”, the offender stated to the UCO:
No matter what you want to do is up to you. It was Nick’s idea to have a threesome or for you to watch. One of us could wank, whilst the other one had sex with you.
The offender ultimately, on 24 July 2007, booked a ticket for J to travel to Sydney and return.
Next day, on 25 July 2007 at about 6:30 am, the offender and “Nick” were subjected to a raid by Australian Federal Police. A search warrant was executed. The offender was arrested and taken into custody. He was extradited to the ACT, but not granted bail until 20 September 2007. He spent 58 days in custody.
The offender initially pleaded not guilty, though he agreed to a hand up committal so that no prosecution witnesses were required to give evidence.
The trial was listed to commence on 18 May 2009. On that day, the prosecution amended the charge to confine the offending conduct to the period 3 April 2007 to 24 July 2007. A plea of guilty was entered.
The indictment then charged that:
... between 3 April 2007 and 24 July 2007 [the offender], being at least 18 years of age, used a carriage service to transmit communications which included material which is indecent to another person, being someone who he believed to be under the age of 16 years, with the intention of making it easier to procure the other person to engage in or submit to sexual activity with himself.
Up to that time, though J had not been called upon to testify, he might well have had to do so had the plea of not guilty been maintained.
The offence carries a maximum penalty, under s 474.27(1) of the Criminal Code Act 1995 (Cth), of imprisonment for 12 years.
“Sexual activity” is defined by the Dictionary to mean:
(a)sexual intercourse; or
(b)Any other activity of a sexual or indecent nature (including an indecent assault) that involves the human body or bodily actions or functions (whether or not that activity involves physical contact between people).
The term “engage in sexual activity” is defined to include:
... if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity.
It is clear that the activities suggested to J by the offender fitted within those definitions.
On 18 May 2009, a pre-sentence report was ordered and sentencing proceedings were adjourned to 17 July 2009 at 10:00 am. The offender’s criminal history was tendered, revealing only one prior matter from October 1993, for possession and self administration of heroin. He had been fined $350 and ordered to perform 130 hours of community service.
Victim impact statements were tendered from J and his mother. I accept that the conduct of the offender had an adverse affect upon J albeit that the more explicit communications were with the UCO. However, there is an inaccuracy which J seems to have adopted. That is, that the offender represented himself as of J’s age. He did not, though he did, as the agreed facts acknowledge, lower his age to 28 years. J’s mother found it an aggravating feature that the offender, as she perceived it, did not acknowledge his HIV status and had a goal in life to pass HIV around. He did not. I accept that J, having had correspondence with a number of offenders could not be expected to accurately apportion blame to particular individuals.
The intercepted messages support the view that the offender did reveal his HIV status, stressing however, that he engaged in safe sex with his then partner, “Nick” and was careful to ensure his condition was not transmitted to anyone else.
The confusion may well be because J was receiving communications of a similar kind from several men, of whom one, Keith Shepheard, (also known as “Steve”), was sentenced on 13 October 2008 in respect of contact with J from 1 April 2007 until J’s mother alerted police to his and this offender’s messages and a police officer took over communications with this offender and Mr Shepheard. Mr Shepheard pretended to be 20 years of age. His communications were at least as explicit, depraved and pornographic, including videos, as those engaged in by this offender.
As Dr Boss, then appearing for the offender submitted, the responsibility for the impact on J and his mother could not be solely attributed to this offender.
By 18 November 2009, the offender’s health had deteriorated so far that his survival was in the balance.
On 8 April 2010 the matter returned to Court. Evidence was taken from Dr Levy and, next day, the then pre-sentence report was tendered.
The offender reported that he was raped at age 7. As a consequence, at age 12 or thereabouts, he worked as a prostitute. He was raped again at ages 14 or 15. At 17 or 18 years of age he was raped again, becoming infected with the HIV virus. This contrasts with his assertion during recorded messages that he had infected himself to commit suicide. He had not been employed for 14 years before the current time.
He began using cannabis from 11 years of age and added alcohol shortly after. At 16 years he began using amphetamines and cocaine and, a year later, heroin and LSD. He gave up drugs, including heroin, in 2007, but remained on the methadone program. He had relapsed with heroin after 2007.
He blamed his then partner, “Nick”, for the offending behaviour. He claimed his intention was to have a “big brother” relationship with J and had not intended to have sex with a minor.
I have to say that the offender did not seem to appreciate the width of the definition of “sexual activity”.
He was assessed, I think rightly, as in need of professional counselling and participation in the Corrective Services Sex Offenders Program. He was and is clearly emotionally fragile, but was taking more responsibility than before for his offending behaviour.
I did raise with Dr Boss whether the offender acknowledged the truth of his assertions denying intent to engage in sexual activity with J or whether he was changing that position.
After a short adjournment, Dr Boss indicated that her instructions were withdrawn and the offender wished to withdraw his plea of guilty.
Accordingly, the matter was adjourned to enable the offender to obtain further legal advice. That issue was not determined until 14 May 2012, (R v Sinclair [2012] ACTSC 64) when I refused leave to withdraw the plea for the reasons I then published.
I then ordered an updated PSR and adjourned proceedings to 5 July 2012.
The updated Pre-Sentence Report noted that, since July 2009, there was reported by the offender a further deterioration in his health due to HIV. He was continuing methadone and benzodiazepines as prescribed. He had greatly reduced cannabis and alcohol intake due to his poor health. He appeared to have taken more responsibility for the offence than previously.
That may be because I had noted in my decision of 14 May 2012 that “sexual activity” was not limited to actual sexual intercourse as I think the offender originally believed was alleged.
He could be supervised and treated in NSW. He did show remorse towards the victim. He was prepared to submit to any prescribed sex offender programs. NSW Corrections could undertake the supervision and interventions required.
A psychological report from Mr Jim Watson‑Munro was tendered. He noted that the offender has for some time now been attempting to survive AIDS, and it appeared to him that the illness would be likely to become terminal in a custodial environment due to loss of his significant support network. The offender’s HIV condition was transmitted due to rape after an abduction and confinement at age 17. He had developed thereafter drug and alcohol abuse problems.
Latterly he has become unable to take solid foods.
Unsurprisingly, Mr Watson‑Munro found him highly depressed. He also noted that the offender now had no libido. He presented as suicidal.
The medical evidence supported the history as recited by Mr Watson‑Munro.
Associate Professor Marilyn McMurchie is a medical practitioner who has specialised in the general practice area of HIV, hepatitis C and opiate treatment. She has treated the offender since 1999. He has poor health due to untreated chronic HIV infection and methadone. Attempts to treat his HIV infection have been unsuccessful. He could not tolerate the treatment. He needs constant supervision to ensure the methadone intake is tolerated. His general practitioner, Dr Bitlan has monitored the offender’s health fortnightly. He reports that when he was held on remand three years ago, the offender’s immune system became further depressed. He developed lymphoma. It does not appear to Associate Professor McMurchie that that condition has persisted. Nevertheless, Dr Bitlan is of the view that, if sentenced to fulltime custody, the offender’s survival would be compromised.
As he resides in Sydney, periodic detention is not an option. I turned to the objective seriousness of the offending behaviour.
I note that another offender (R v Keith Shepheard [2008] ACTSC 16 (13 October 2008) was dealt with by Refshauge J for an almost identical series of communications with the same victim and the same undercover police officer.
His Honour noted, as I do, that the harm suffered by the victim could not be laid solely at the feet of an individual offender, but it must be shared by this offender, Mr Shepheard and a number of other perpetrators not identified. Their individual contribution cannot be separately assessed.
As with Mr Shepheard, the plea of guilty, in the circumstances, is of limited value. R v Ferrer-Esis (1991) 55 A Crim R 231. It is taken into account. In each case, an element of deception was present. Perhaps less in this case, as this offender, though claiming to be younger than he was, provided a real photographic image of himself and did acknowledge that he was considerably older than J.
I accept, as his Honour did in Shepheard, that:
[58] The courts have uniformly regarded this as a serious offence which almost inevitably requires a custodial sentence, though suspended where the offence is of a very limited nature and there are substantial mitigating circumstances.
His Honour sentenced Mr Shepheard to two years and nine months of imprisonment, suspended after nine months on appropriate conditions. Since his Honour dealt with Mr Shepheard there have been some appellate cases dealing with this category of offending.
In R v Asplund [2010] NSWCCA 316 a similar offence was considered. The offender had engaged in indecent communications with a 14 year old girl. He was 61 but claimed to be 27. He was otherwise of good character. He attempted to avoid responsibility, pleading not guilty and seeking to blame another for the communications, even procuring false statements to that effect. The original sentence imposed was three years six months, non parole one year nine months. Both the Crown and the offender appealed. The period of communication with the victim was extensive.
The Court reviewed a number of like cases, including that of Shepheard (supra). The Crown’s objection was not to the head sentence but to the leniency of the non-parole period. Their Honours did not find that to be in error. There was no error found in the evaluation of the matters favourable to the offender, particularly the reduced weight given to past good character and to general deterrence being a “paramount consideration” in such cases. That is not to say that past good character has no weight but rather that is of less weight in the context of this category of offending. In contrast with the present case, Asplund had sought to evade responsibility and blame others. There was both a lack of remorse and of insight. I do not overlook the offender’s attribution of some blame to “Nick” in this case, but that was not, I accept, a false assertion. He accepted responsibility for the conversations. His reservation was as to the nature of his intent.
On inadequacy, in Asplund the Court concluded that there was “a high level of criminality”. The offender was bombarding a victim, actually 13, with graphic, offensive and highly indecent material. The first sentence was increased to three years and the second four years, consecutive, with a non-parole period of four years.
The difference between the two charges was the mode of communication, the first, the internet, the second, a mobile phone. I do not understand why the conduct was so divided, but it may be assumed that the sentence reflected the total criminality and would have been the same had only one count been propounded.
In Cooper v R [2012] VSCA 32, the offender had a history of sexual offending against children. He was at moderate to high risk of reoffending. There were nine offences in all, two were related to grooming. Four years of imprisonment was imposed for those offences. More than one victim was involved. The contention that the sentences were excessive was rejected generally, but the grooming sentences were reduced to three years from four.
In this case, there is, therefore, no issue but that a sentence of imprisonment must be imposed. I draw attention to the remarks of Steytler P in Western Australia v Collier (2007) 178 A Crim R 310 [43].
Anything less than an immediate term of imprisonment does not take sufficient account of the seriousness of the respondent’s offending behaviour 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.
The object of protecting children from sexual abuse is of paramount public interest. Indeed, the personal circumstances of this offender themselves illustrate the need for the affirmation of such a principle. This offender was abused horribly as a child, the consequences leading inevitably to his exploitation as a child prostitute, then to victimisation including infection with HIV and drug and alcohol addiction as a young person. It also led to his perverted perception that he and “Nick” were “protecting” J from sexual exploitation while proposing to engage in it.
I accept that the experience the offender has been subjected to over the last five years has had a powerful deterrent effect upon him. He no longer represents a threat to the moral well-being of anyone. It is, nevertheless, incumbent on the Court to record by way of an appropriate custodial sentence its condemnation of the offending behaviour and a deterrent message to others inclined to offend in a similar way.
But for the sentence imposed on Shepheard, whose conduct with the same victim was at least no better, arguably worse, I would have imposed a sentence of three years of imprisonment, little discount for the plea of guilty being earned, but there having been no contested trial. I appreciate that in WA v Collier a sentence of 18 months with non-parole period of nine months was imposed, but that was under State law which provided a lesser maximum penalty of 10 years. The point of Collier was the emphasis on the need for strong deterrence not only of the individual offender, but those would-be predators trawling the internet for young victims. That an offender is at risk of suicide if imprisoned is a matter to be taken into account. It is a signal for authorities to take care of the well-being of the prisoner. Such threats cannot, however, be an excuse for the avoidance of proper punishment, though it may influence the extent of it in the sense that custody under close observation like close protection, which in a case like the present is also to be expected, makes the experience of custody harsher than the norm.
Even allowing for that, I would have required this offender to serve the balance unserved of a nine month period of custody before eligibility for parole, allowing for his fragile mental state as compared with Shepheard.
Yet, after all that, I am faced with a more difficult dilemma. I am satisfied that, if I required the offender to serve another six months of such a sentence, then, despite the best endeavours of prison authorities, absent his current support network, he would not survive the sentence. It would be a death sentence.
That is an extraordinary circumstance, almost unique. I acknowledge that it may be that some offences would be such as, notwithstanding that, to require a sentence to be imposed notwithstanding the fatal consequences. In some cases, though terminally ill, a prisoner’s fate may not be made worse in terms of length of survival. This is not such a case.
Brendon Russell Sinclair, Please Stand.
Upon the single count in the indictment I record a conviction. I sentence you to two years and nine months of imprisonment commencing 2 August 2012. I direct that the balance of the sentence be suspended 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 you 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. I understand that supervision will be transferred to New South Wales.
The DPP also seeks an order under s 48(2) of the Proceeds of Crimes Act 1999 (Cth) for forfeiture of three mobile phones as identified in the application. The DPP has undertaken that data personal to the offender will be isolated and returned to him. Otherwise the offender agrees to that order being made and I make that order accordingly.
The offender is to report to Corrective Services forthwith to arrange ongoing supervision.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 3 October 2012
Counsel for the Crown: Mr A Tucker
Solicitor for the Crown: Commonwealth Director of Public Prosecutions
Counsel for the Defendant: Mr P Hardin
Solicitor for the Defendant: Hardinlaw
Date of hearing: 28 September 2012
Date of judgment: 28 September 2012
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