R v Brendan Russell Sinclair
[2012] ACTSC 64
•14 May 2012
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:
The application for leave to withdraw the plea of guilty be refused.
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.
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.
The objective facts relied upon by the prosecution are not in dispute. The applicant’s dispute is with the element of his intention.
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.
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”.
In his profile, the applicant referred to himself as a 28 year old male from Sydney named “Ben”.
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.
The recipient expressly informed the applicant that he was then 14 years of age. The applicant nevertheless sent explicit sexual texts and images, offering “Trent” accommodation and use of his spare bedroom in Sydney.
The messages did not, however, expressly suggest sexual activity with the applicant until 10 April 2007. He then transmitted to “Trent”:
Baby I figured that? Nah i knew cos sixteen legal so knew you were fourteen or fifteen. I have lots of young mates? Babe i Luv ya cos you’re a beautiful boi not as in sexy which you are and id happly suck you dry oops sorry lol ...
These and other messages were discovered by the young person’s mother on 13 April 2007. Police were notified and took over the communications from 14 June 2007.
Those communications are sexually explicit but mainly seem to relate to getting “Trent” “hooked up” with boys his own age, although a message sent on 17 July 2007 did refer to “even if ya just wanted your cock to be sucked off”. Whether that would be “Ben and Nick”, as the applicant referred to himself and his boyfriend, was not expressly stated. Later messages, however, were more explicit, saying “love to do anything with ya” and “would also be worried cos you under 16 means id be breakin law”. Subsequent communications flagged meeting “Trent” and inviting him to a “threesome” with “Nick”.
The applicant was arrested on 25 July 2007 and extradited to the Australian Capital Territory the following day. He was held in custody for 58 days and was granted bail on 20 September 2007.
He was subsequently committed for trial and was arraigned on 17 March 2009. He entered a plea of not guilty.
A trial date was set for 18 May 2009. On the morning of the trial, the accused offered a plea of guilty to a slightly amended charge. The commencement date of the offending conduct was changed from 28 March 2007 to 3 April 2007.
Dr Bernadette Boss of counsel appeared for the applicant, instructed by Mr Stephen Stubbs, solicitor. A pre-sentence report was ordered and the sentencing proceedings were adjourned to 17 July 2009.
They were further adjourned to enable additional material for both the prosecution and defence to be prepared. Additional delay was occasioned by the applicant’s ill-health. He is HIV positive.
An issue arose on 9 April 2010 when it was revealed in the pre-sentence report that the applicant had claimed that he ever intended to engage in sexual activity with “Trent” and blamed his then partner “Nick” for the nature of the correspondence. That contradicted one element of the alleged offence.
The applicant then gave notice that he would seek to withdraw his plea of guilty.
I raised a query concerning the consistency of the plea with the assertions made to the pre-sentence reporter. The applicant told his legal advisors he could not agree that he had had the necessary criminal intent.
Dr Boss and Mr Stubbs sought leave to withdraw from representing the applicant. Leave was granted.
The matter was adjourned to enable the applicant to seek legal advice. On 8 June 2011, the applicant swore an affidavit in support of an application to withdraw his guilty plea.
In that affidavit the applicant stated that, before 18 May 2009, he had had only one conference with Mr Stubbs and Dr Boss. He had not received the text of the SMS messages and telephone conversations. He said that he had been told by Mr Stubbs that:
The evidence is stacked against you. You only have two choices, (a) to die in gaol or (b) to plead guilty and with mitigating circumstances you will get a suspended sentence allowing you to die at home.
That message was, he said, forcefully repeated immediately before the hearing.
Describing the events that led to the commission of the offence as “complex” and “complicated”, Mr Sinclair recounted “being friends with a boy who said he was 16. Me and my boyfriend communicated (with him). I am still learning much of what was said and done.” Mr Sinclair blamed much of the subsequent correspondence on his then partner, despite his own phone being “used to communicate and send pictures that were x-rated, which is wrong”.
Mr Sinclair described a yearning for a substitute “little brother”. He said that he agreed to enter into a “big and little brothers” relationship with the recipient: the recipient had expressed a need for a “big bro” and, as his own little brother had died, Mr Sinclair agreed to assume the role.
Mr Sinclair acknowledged the seriousness of his current behaviour. However, he added that it was never his intention to have sex with a minor, as he “loved his (then) boyfriend too much”. Mr Sinclair apportioned “30 per cent” of the alleged offence to himself and the balance to his ex-partner.
When challenged as to the sexual nature of the correspondence alleged to have been sent by Mr Sinclair to the recipient, Mr Sinclair became incoherent and deflective. He denied that he was personally responsible for the correspondence and expressed frustration that his partner at the time had not been charged.
Essentially, the applicant has challenged the intent expressed in the charge, though accepting each other element.
The offence created by s 474.27A is unequivocally acknowledged as apt to cover the applicant’s conduct, as he himself sensed. However, that specific offence was only inserted into the Criminal Code with effect from 15 April 2010.
Nevertheless, s 474.17, which was inserted into the Criminal Code with effect from 1 March 2005, would be apt as an alternative:
(1) A person is guilty of an offence if:
(a)The person uses a carriage service; and
(b)The person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
Penalty: Imprisonment for 3 years.
It may also be that some of the material transmitted could be regarded as child pornography material (see s 474.19).
It suffices to conclude that, whether or not the applicant was aware of the terms of s 474.27, or any other cognate offences, he would be well aware that his communications with “Trent”, whatever the intent so far as sexual activity with “Trent” was concerned, would expose him to punishment.
The applicant attributed his decision to plead guilty to the conversation with Mr Stubbs referred to above.
He was cross-examined on that assertion.
Dr Boss provided an affidavit, though Mr Stubbs did not. She confirmed one aspect of the applicant’s assertions, namely, that the applicant’s then partner, “Nick”, had been the driver of the offending communications and that the applicant was trying to protect the complainant.
On 18 May 2009, Dr Boss went through the case statement with the applicant “line by line”. He said:
I was trying to protect little Trent, it was Nick who wanted to have sex with him.
That contrasted, Dr Boss noted, with the transmission of 23 July 2007 in which the applicant spoke of having sex himself with “Trent”.
Dr Boss did explore the risks that would be associated with sexual activity by the applicant given his HIV status. He made two statements: “I was going to use a condom”, and “I accept that I wanted Trent to come up to Sydney. I genuinely wanted to look after him but I would have had sex with him if that was what he wanted.”
She advised him that, given all of those matters, a jury would be highly likely to convict.
The applicant then agreed to plead “guilty”. He did say that he believed that the age of consent was 15, though he knew “Trent” was 14.
Given the statements made to Dr Boss, her advice was clearly appropriate, though of course, an accused person may take his or her chances with a jury even if the prospects for success appear minimal.
I turn to the applicant’s evidence of 21 December 2011.
He asserted that his statement about using a condom was general and not related to having sex with “Trent”. It was an assurance that he engaged in safe sex if he had sexual relations.
He further asserted that he had no serious intention even of meeting “Trent”. He asserted that he was concerned that the boy was courting danger by seeking sex from anonymous persons. He claimed he was not told by Mr Stubbs that his plea meant that he was acknowledging an intent to have sex with the boy and that he would be a registered sex offender. Rather, he said, the choice was to die at home or in gaol.
He challenged the accuracy of Dr Boss’ recollection of his statement to her about having sex with “Trent” “if that was what he wanted”.
He was cross-examined by Ms Cronan for the Crown. He said that his initial decision to plead not guilty was made because he “hadn’t done anything wrong. I didn’t have any bad intents and so naturally I – innocent”. He really did not know, he claimed, what the charge meant.
Nevertheless, he did say that when he did plead not guilty he was disputing that he had the intention of making it easier to procure the recipient to have sex with him. He also claimed at that time that he was not aware of what he had sent.
Certainly, by 18 May 2009, the applicant was aware of the damning nature of the correspondence he had had with “Trent”.
Particularly explicit was a message sent on 23 July 2007 at 5:15 pm:
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 applicant did not dispute that he sent that message and others equally susceptible of a similar connotation.
I asked him expressly whether when he pleaded guilty he understood that he was admitting the relevant intention. His answer was “Yes and no – Yes and no”.
He explained that by saying that he did understand that he was making that admission but felt he had no choice if he wanted to avoid dying in gaol. His health had deteriorated markedly whilst he was in custody previously.
I think that probably represents the reason why the applicant now wants to change his plea. However, that does not address the question as to whether he appreciated and intended truthfully to concede the intent element of the charge.
He did say that “LOL” after the “suck you dry” message indicated that it was a joke. He also claimed that when the communications were sent he was on medication and taking alcohol to excess so that he was not really aware of what he was doing.
I have to say that the applicant was not an easy witness to get to stick to the point or concentrate on a question.
He also said that, though he understood the charge, “... although I pled (sic) guilty to it I didn’t agree with everything in it. I thought we’d get to that later”.
It is difficult to know what to make of the applicant’s evidence: his thought processes, as expressed, were very confused. He seemed unable, or unwilling, to face questions directly.
I have no doubt that the imminent prospect of going to gaol prompted the decision of the applicant to change his plea on 9 April 2010.
Nevertheless, as early as July 2009 when the pre-sentence report was prepared, the applicant had claimed “that it was never his intention to have sex with a minor”. When challenged with the correspondence, it was reported that “Mr Sinclair became incoherent and deflective in his response”.
The circumstances of the change of plea do tend to support a view that the applicant thought he could plead guilty but, in mitigation, deny the sexual intent without needing to change his plea. That is a position which lacks logical cohesion, yet so too did much of the applicant’s presentation.
It is true, as the Crown submits, that the applicant entered a plea of guilty after receiving, from Dr Boss at least, sound legal advice from experienced counsel that he faced an overwhelmingly strong Crown case.
The parties agree that the legal principles underlying the grant or refusal of leave to change a plea have been set out in R v Gomez [2007] ACTCA 21 (“Gomez”) and R v Stevie Mambor [2010] ACTSC 30.
The fundamental issue is whether it would be contrary to the interests of justice to allow the plea to stand.
The first question is whether the accused has correctly understood the charge. In this case, despite the dissatisfaction of the accused with Mr Stubbs, it is clear to me that between them, Mr Stubbs and Dr Boss clearly advised the accused of the elements of the offence and of the facts relied upon by the Crown to support it.
The only reservation is whether, despite the applicant acknowledging that the communication emanated from him, he, in his own mind, had no intention of performing with, or in the presence of “Trent”, any of the indecent acts he referred to. There may legitimately be a range of activity that is “sexual”, from actual intercourse to the commission of indecent acts in the presence of the young person.
I accept that the applicant’s understanding of the intent element may not have been perfect. However, he well understood that the activities he suggested to “Trent” fell within it. He was simply claiming that his assertions ought not to have been taken literally.
That is not the only factor to be considered. In a case such as the present the interests of the young person involved cannot be overlooked. I accept that, in any event, the recipient would not be required to give oral testimony, however the lack of finality in the proceedings if the plea was to be reversed must be a source of disquiet and anxiety for him. Indeed, that is consistent with the victim impact statement tendered in the sentencing proceedings.
There is also, as in Gomez, a public interest in the finality of proceedings.
In this case, a trial was set to proceed before a jury, as is mandatory for Commonwealth indictable offences.
Whilst I accept that the applicant may well be able to assert he was not intending to “have sex” with Trent, his admitted statements would satisfy any tribunal of fact that he was expressing an intent to procure “Trent” to engage in some form of sexual activity involving himself. I consider it highly likely that a jury would be satisfied beyond reasonable doubt that the applicant would have involved himself in some sexual activity with “Trent”, whether or not it was some misguided attempt to “protect” him from more exploitative activity.
In those circumstances, I consider that, though faintly arguable, the denial of the intent element is not so substantial that, given the other factors, the applicant should be permitted to change his plea.
The application is rejected.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 14 May 2012
Counsel for the Applicant: Mr C Evans
Solicitor for the Applicant: Hardinlaw
Counsel for the Respondent: Ms S Cronan
Solicitor for the Respondent: Commonwealth Director of Public Prosecutions
Date of hearing: 21 December 2011
Date of judgment: 14 May 2012
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