R v Brendan Russell Sinclair

[2012] ACTSC 64

R v BRENDAN RUSSELL SINCLAIR
[2012] ACTSC 64 (14 May 2012)

CRIMINAL LAW – application to withdraw plea of guilty – using a carriage service to “groom” a person under the age of 16 years – whether applicant possessed the intent element of the offence – whether it would be contrary to the interests of justice to allow the plea to stand – whether applicant understood the charge – interest of victim in finality of proceedings – public interest in finality of proceedings – application refused

Criminal Code Act 1995 (Cth), s 474

R v Gomez [2007] ACTCA 21
R v Stevie Mambor [2010] ACTSC 30

No. SCC 376 of 2007

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              14 May 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:  14 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The application for leave to withdraw the plea of guilty be refused.

1. This is an application by Mr Sinclair (“the applicant”) for leave to withdraw a plea of guilty entered by him on 18 May 2009 to a charge that he

... between 3 April 2007 and 24 July 2007, at Canberra in the Australian Capital Territory and elsewhere, [he] used a carriage service to transmit communications, which included material which is (sic) indecent, to a recipient whom he believed to be under the age of 16 years, with the intention of making it easier to procure the recipient to engage in or submit to sexual activity with [himself] [he being] at least 18 years of age.

1. That refers to an offence against s 474.27 of the Criminal Code Act 1995 (Cth) (“Criminal Code”).  The maximum penalty prescribed is 12 years of imprisonment.

1. The objective facts relied upon by the prosecution are not in dispute.  The applicant’s dispute is with the element of his intention.

1. The “recipient”, who must be unnamed, is a young person whose date of birth is 27 January 1993.  Hence he was, over the relevant time period, 14 years of age.  The applicant’s date of birth is 27 December 1968.  Hence, during the period referred to in the indictment, he was aged 38 years.

1. There was at that time a mobile phone based communication network available to users of the mobile phone company “3” called “Kinkkommunity”.  The recipient registered himself as “Trent 16”.  This gave the false impression that he was aged 16 years.  He began to exchange communications with another user, the applicant, who used the name “care4ya”.

1. In his profile, the applicant referred to himself as a 28 year old male from Sydney named “Ben”.

1. The first communication from the applicant to the recipient’s mobile phone was made at 12.08 pm on 4 April 2007.  It contained a picture of [NA], the then boyfriend of the applicant who was at that time aged 22 years.

1. The recipient expressly informed the applicant that he…