R v Champness
[2019] ACTSC 277
•17 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Champness |
Citation: | [2019] ACTSC 277 |
Hearing Date(s): | 28 June 2019, 23 July 2019, 4 October 2019 |
DecisionDate: | 17 December 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [113] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit an indecent communication to a person under 16 years of age – where offender was victim’s pastor – where relationship of trust – where no criminal history - recognizance release order |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A, 17A, 20, 20A Criminal Code Act 1995 (Cth) s 474.27A |
Cases Cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638 Cameron v The Queen [2002] HCA 6; 209 CLR 339 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 DPP (Cth) v Walls [2014] VSCA 323 DPP (Cth) and DPP v Watson [2015] VSCA 194; 47 VR 268 Edwards v The Queen [2013] VSCA 188 Elias v The Queen [2013] HCA 31; 248 CLR 483 Elliott v Harris (No 2) (1976) 13 SASR 516 FB v The Queen [2011] NSWCCA 217 Filippou v The Queen [2015] HCA 29; 256 CLR 47 Greenwood v The Queen [2014] NSWCCA 64 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Kenny v The Queen [2010] NSWCCA 6 Kristensen v The Queen [2018] NSWCCA 189 Leach v The Queen [2007] HCA 3; 230 CLR 1 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Aniezue [2016] ACTSC 82 R v Butters [2019] ACTSC 143 R v Conway [2017] ACTSC 275 R v Cowley [2017] ACTSC 213 R v De Simoni (1981) 147 CLR 383 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v KB [2019] ACTSC 136 R v MB [2014] ACTSC 399 R v Nahlous [2013] NSWCCA 90; 228 A Crim R 503 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pham [2015] HCA 39; 256 CLR 550 R v Talia [2009] VSCA 260 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R vVerdins [2007] VSCA 102; 16 VR 269 R v Waters [2017] ACTSC 226 R v Zamagias [2002] NSWCCA 17 R v Zerafa [2013] NSWCCA 222; 235 A Crim R 265 Veen v The Queen (No 2) (1988) 164 CLR 465 Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1 Zaky v The Queen [2015] NSWCCA 161 |
Parties: | The Queen (Crown) Brian Gibson Champness (Offender) |
Representation: | Counsel M Keks (Crown) M Kukulies-Smith (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender) | |
File Number(s): | SCC 95 of 2019 |
LOUKAS-KARLSSON J
Introduction
On 2 May 2019, Brian Gibson Champness (the offender) pleaded guilty to an offence of using a carriage service to transmit an indecent communication to a person under 16 years of age between 1 May 2018 and 30 October 2018 contrary to s 474.27A(1) of the Criminal Code Act 1995 (Cth) (Criminal Code) (CC2019/5013).
The maximum penalty for this offence is 7 years’ imprisonment.
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle.
In December 2016, the offender commenced work as a pastor in New South Wales. The offender met and became friends with the victim’s mother and her partner who were members of his congregation. The victim, who was 13 years of age at the time, attended services at the offender’s congregation with her mother and her mother’s partner.
The offender would converse with the victim after each church service in the presence of others. At some point, the offender obtained the victim’s personal mobile phone number. At the start of 2017, the offender commenced attending the victim’s football games and would occasionally ask if the victim would like to ride home with him, which she refused.
Approximately halfway through 2017, the victim and offender commenced having conversations on the mobile phone application ‘Snapchat’. The victim and the offender conversed several times via Snapchat initially in general conversation, including a request to kick a football or go to a film together. Towards the end of 2017, the offender asked the victim to wear her hair or dress in a particular way.
Between the end of 2017 and April or May 2018, the offender and victim did not communicate over Snapchat. Subsequently in 2018, the offender and the victim resumed communication. At this time, the offender started requesting that the victim send him pictures of her face, which she did. These requests increased to a daily occurrence. On one occasion the offender requested a picture of the victim’s legs which she did not send.
At a later time, the offender asked the victim what she was doing, to which she replied she was going to have a shower. The offender then requested the victim send him a picture of her stomach. The victim provided a photo of her body down to her knees, but not her face as she lifted up her shirt. The offender then asked if the victim had taken a shower and requested a picture of the victim in the bathroom mirror, at which point the victim informed her mother.
Victim Impact Statements
In evidence before me were two Victim Impact Statements from the victim of the offence and the mother of the victim respectively. The victim’s statement was read out by the prosecution at the sentence hearing. The victim’s mother’s statement was tendered at the hearing but not read out.
The Victim Impact Statement of the victim concluded with the following:
The impact going forward is that I won’t trust people as much. It made my mum feel devastated, angry and disappointed because she allowed you into our home. This has affected my whole family.
There are a few things going around in my head still that I’m struggling to get out. It’s always going to be something that happened to me so it will be constantly with me. It will always be something that I’m disappointed in myself that I trusted you and didn’t get the hint with some of the things you were asking of me. I’ll always be careful when I’m around other people and will find it hard to trust people in the future.
The Victim Impact Statement of the victim’s mother included the following:
This crime has eroded trust where trust was given to a person who held a position of trust by the very nature of his employment. A person who holds a position of trust within the church relies on and asks for those within their care, to trust them, to let them in and as a family this is what happened. We let him in. This makes it extremely hard to open up to and know how to trust people in the future. How do we know who to trust when we are left wondering how we missed the signs of this impending crime? A crime by someone in Children’s Ministry who should have been protecting the needs of kids, not being the very person, they should have been protected from?
…
[The offender] was in a position of mentoring the victim’s older brother and he is now in crisis, not knowing how to move forward and trust anyone in the future. [The offender] would have been the person that he would have gone to discuss a situation that caused him distress such as this one. [The offender] was a person that we had actively pointed him to as someone he could trust. Imagine our horror when we realised, we had pointed him towards someone who was not supporting but preying upon his own sister. How do we now explain to our kids who to trust when we are asking the very same question ourselves?
The extent of the impact upon the victim and the victim’s family was made clear by the Victim Impact Statements. The reading of the victim’s statement was important as the offender heard in Court what the victim had to say.
Courts know the extremely serious effects of such offences as this, nevertheless, it is very valuable for the Court to have the words of the victim and her mother in this case. The Court acknowledges the significant impact that the offence has had and continues to have on the victim and her family.
Objective Seriousness
Prosecution’s submissions
The prosecution submitted that the maximum penalty for offence, 7 years’ imprisonment, indicates its inherent seriousness, and that intermediate appellate courts have emphasised the gravity of offences related to online sexual exploitation of children: see DPP (Cth) and DPP v Watson [2016] VSCA 73; 259 A Crim R 327 at [89].
It was submitted that the Court should have regard to the factors relevant to objective seriousness of an offence under s 474.27A(1) that were set out by Refshauge J in R v Aniezue [2016] ACTSC 82 (Aniezue) at [33]:
In my view, including some of those mentioned in that case, the relevant factors, at least, include:
· the nature of the indecent material communicated, including its explicitness;
· the offender’s level of awareness and indecency and deliberateness in communicating;
· the age differential between the offender and the victim and the knowledge of that age;
· the nature of the relationship between the offender and the victim;
· the period of time over which the communication took place and the number of messages transmitted; and
· whether the person with whom the offender communicated is a child or a police officer or other adult impersonating a child.
Addressing each of the factors in Aniezue, the prosecution submitted that in respect of this case:
(a)there was a large disparity in age between the victim and the offender (13 and 41 years of age respectively);
(b)the duration was significant, and the communications should be viewed as a course of conduct of high frequency, ultimately up to daily messages;
(c)the nature of the communications was that the communication was persistent and manipulative. It was submitted that communication escalated from requests for pictures of the victim’s face, to a request for a photograph of her in the bathroom mirror in the context of a shower and other explicit communications;
(d)the offender was in a position of trust and authority and the offending conduct constituted “an exploitation of an established relationship…and was a breach of trust put in him by his employer and by the victim’s parents”; and
(e)it should be inferred the requests were for the offender’s sexual gratification, thus sexualising the victim. It was noted there was evidence of the victim expressing her discomfort with the requests by the offender. Following the offender giving evidence before me, the prosecution noted the offender “accepted that he has made the request…for his own sexual gratification” (Transcript of Proceedings on 28 June 2019, p. 26.40) which should be seen as an aggravating feature.
The prosecution further submitted that the offender’s culpability is heightened by his subsequent attempts to conceal the offending by deleting the messages. It was also suggested that the attempt to contact the victim after she had blocked him on Snapchat “can be seen as an attempt to prevent any report of the communication”.
The prosecution accepted that the explicit indecency of the communications was “at the lower end” (Transcript of Proceedings on 28 June 2019, p. 25.23) of the spectrum, but cavilled with the submission that the objective seriousness of the offending was at the low end, in light of the matters outlined above (Transcript of Proceedings on 28 June 2019, p. 25.6-7).
Finally, the prosecution indicated that the objective seriousness is elevated by the harm to the victim referred to in the Victim Impact Statements of the victim and her mother.
Offender’s submissions
Counsel for the offender submitted that the offence was at the “lower end” of objective seriousness although “not at the bottom of that range”, on the basis that the communications were limited to requests for pictures rather than sending explicit images or texts, and were not threatening. Moreover, there was no request for pictures of the victim engaged in sexual activity. It was submitted that aggravation of the offence was limited to the breach of trust, both as the victim’s pastor and as a family friend.
In relation to the submission by the prosecution that the conduct spanned between May and October 2018 and was persistent and manipulative, it was submitted this should be rejected as being inconsistent with the Statement of Facts and the charge before the Court. That is, an indecent communication offence, not a grooming charge. With respect to the latter submission, counsel for the offender noted the decision of R v De Simoni (1981) 147 CLR 383 (De Simoni). Moreover, it was put that, properly understood, the offending behaviour only emerged in October 2018, despite the date range of the offence.
It was submitted that it was only the final communications which approach the ‘indecent’ level, but even then, they were not of a highly sexualised nature. It was put that the earlier communications merely established the relationship which, counsel for the offender conceded, was later exploited.
Counsel for the offender also rejected the prosecution’s characterisation of the offender’s behaviour as attempting to conceal the offending. Rather, it was submitted that the subsequent communication to the victim was an acknowledgment of wrongdoing and remorse. It was submitted that an attempt to conceal would be an aggravating factor on sentence and would need to be proven beyond reasonable doubt: R v Olbrich [1999] HCA 54; 199 CLR 270 (Olbrich); Leach v The Queen [2007] HCA 3; 230 CLR 1; Filippou v The Queen [2015] HCA 29; 256 CLR 47 (Filippou). It was further submitted the words of the text, on their face, do not rise to the level of establishing an attempt to manipulate or coerce the victim out of reporting.
It must be stated that references to low range, middle range and high range objective seriousness are unlikely to be helpful. As has previously been expressed in this jurisdiction, “it is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24].
In relation to objective seriousness, I identify the following particular features of the case in accordance with relevant factors set out in Aniezue:
(a)there was a large known age differential between the victim and the offender: being 13 years old and 41 years old respectively;
(b)the offence was aggravated by the breach of trust as the offender was the victim’s pastor;
(c)the prosecution correctly accepted that the explicit indecency of the communications was at the lower end of the spectrum of offending;
(d)the duration of the communication included high frequency and ultimately, daily messages. The earlier communications established the relationship, which was exploited by the offender in the later, more explicit, communications and in this context, I note the De Simoni submissions made by counsel for the offender set out above;
(e)it is not established beyond a reasonable doubt that there was an explicit attempt to conceal the offending (Olbrich; Filippou); and
(f)the offender accepted in evidence before me that the conduct was for his sexual gratification.
Subjective Circumstances
In evidence before me is the Pre-Sentence Report (PSR) prepared for the offender.
The offender was born in Newcastle and has three siblings. His parents separated when he was five years old, following which he relocated to Queensland with his mother until the age of 13, whereupon he returned to Newcastle to live with his father.
The offender reported a difficult childhood due to physical abuse perpetrated by his father against his mother and a lack of meaningful friendships during his school years. The offender was married in 2005 and maintained a good relationship with his wife until his arrest. He maintains amicable relationships with two of his three siblings.
The offender completed Year 12, Diplomas in Business and Christian Ministry, and a master’s degree in Mentoring. The offender reported continuous employment since leaving school, though he resigned from his role as “Church Leader” due to his arrest.
The author of the PSR records that the offender has never used illicit drugs and only consumes two or three standard drinks a year.
Since his arrest, the offender has engaged with psychiatrists and a psychologist and has been prescribed medication for a Bipolar condition. At the time of the PSR report, the offender had cancelled a follow-up review with a psychiatrist at Access Mental Health Services, having moved from the area.
The offender agreed with the Statement of Facts and blamed his actions on stress and an untreated mental health condition. He acknowledged the offending was premeditated and spanned over several months, during which time he made no efforts to seek help.
The report includes the following:
[The offender] is a 42 year old man who has been assessed as a medium-low risk of general re-offending. The medium-low assessment is primarily due to his lack of criminal history, education and stable accommodation. He is fortunate to have supportive family members including his uncle who has allowed [the offender] to reside with him until he is able to financially support himself.
In relation to the offence, [the offender] appeared to avoid taking responsibility for his actions, instead blaming stress and untreated mental health for his actions.
[The offender] will likely benefit from continued engagement with his psychologist to cope with the separation from his partner and loss of employment.
The prosecution submitted that given the lack of recognition of any sexual motivation for the offending, or reference to treatment of that aspect of the offending, the Court should be “cautious” as to the offender’s prospects of rehabilitation. I note in this context, the offender’s subsequent evidence before me accepting the sexual motivation of the offending (Transcript of Proceedings on 28 June 2019, p. 12.26-27).
Counsel for the offender noted that, since his arrest, the offender has engaged regularly with a psychologist and has been compliant with the medication prescribed by his psychiatrist. Counsel for the offender also noted the offender has experienced significant consequences for the offending, including the loss of his job and relationships with his wife and family. The relevance of this was noted in accordance with Kristensen v The Queen [2018] NSWCCA 189 at [14] (Kristensen) where Payne JA (with whom RA Hulme and Button JJ agreed) noted the personal consequences to the offender as being a relevant consideration in re-sentencing.
Nevertheless, the Court notes the authorities which have taken professional ramifications of offending into account only to a limited extent see: R v Zerafa [2013] NSWCCA 222; 235 A Crim R 265 at [92]; Kenny v The Queen [2010] NSWCCA 6 at [48]–[50]; FB v The Queen [2011] NSWCCA 217 (FB). In FB, which concerned a high school teacher convicted of aggravated sexual assault of a student, the court noted at [156] that the “respondent must have known that his sexual pursuit of pupils in his care would sooner or later bring his professional career to an end”, see also Greenwood v The Queen [2014] NSWCCA 64; R v Talia [2009] VSCA 260. In those circumstances, the Court can only take the matters referred to in Kristensen into account in a very limited way, being relevant only to the broad subjective family context of consequences for the offender’s family.
Psychiatric Report of Mr Henrick
Before me is the report dated 25 June 2019 of clinical psychologist, Mr Henrick, prepared for the offender.
The report notes the offender has completed nine sessions of psychological assessment and treatment, including Schema Therapy and Cognitive Behaviour Therapy. The author notes the offender has always attended on time and appeared well engaged. The report notes the offender “clearly requires” ongoing psychological support and is a candidate for long-term treatment (two to three years).
Mr Henrick notes that the offender’s attitude to the offending changed during the course of the treatment. The offender now accepts responsibility for his actions and understands that they were inappropriate. Mr Henrick notes the offender appears to be “deeply remorseful”.
The report notes the offender is being treated for Bipolar Disorder and concludes with Mr Henrick’s opinion that, given the offender’s attitude to the offending and the prospect of a custodial sentence, “this would make his risk of reoffending quite low”.
Counsel for the offender submitted that the report was not being relied on in respect of the principles outlined in R vVerdins [2007] VSCA 102; 16 VR 269 (Verdins), but rather the report is relevant for consideration of subjective circumstances and prospects for rehabilitation. Counsel for the offender relied on a subsequent report of Dr Smith for the Verdins principles (see below), but in Court on 17 December 2019 indicated that the report was not relied upon in relation to Verdins matters (T 3.47-4.1).
Remorse
The PSR noted that the offender blamed his actions on stress and “appeared to avoid taking responsibility for his actions”. Counsel for the offender submitted that, as evidenced by his letter to the Court, the offender considers these matters to be factors contributing to the offence but that they do not take away from his guilt.
Counsel for the offender submitted that the offender’s remorse was evident in his letter to the Court, his cooperation with police, and his self-report to the bishop of his parish (despite the catalyst for that being the confrontation by his wife). Counsel for the offender submitted that the prosecution’s initial submissions in this regard were “overstated and unduly dismissive”.
The offender gave sworn evidence about his remorse for the offence, which included the following evidence (Transcript of Proceedings on 28 June 2019, pp. 8-9):
COUNSEL: How do you feel in relation to the harm that you have caused?
OFFENDER: I feel devastated. I think this was someone who trusted me and I’ve put her in a position where I’ve broken that trust … I understand my actions have hurt her and the family … I realise that this is all my doing and that I caused that.
…
COUNSEL: In terms of the impact that this has had upon the church, do you accept that there’s some impact there?
OFFENDER: Very much so. I’ve let the whole church down as well, you know, specifically the church that I was involved in …once again brought shame and question into church, and so, yes, I fully accept that my actions have caused that.
…
COUNSEL: In terms of your views of what you’ve done, what are those?
OFFENDER: I feel nothing but guilt and shame for what I’ve done … I can’t believe that my actions have led me to hurt directly and indirectly so many people that I was currently or previously ministering to…
Following the evidence given by the offender, the prosecution in its Further Submissions accepted that the offender has demonstrated remorse for the offending but submitted the delay in acceptance of responsibility reduced the weight to be given to this factor.
Having observed the offender give evidence before me in court, I accept that he is remorseful in relation to the offending. There is, in my view, clear evidence of his remorse. It must be added the expression of remorse was not immediate as for example upon arrest, as submitted by the prosecution (Transcript of Proceedings on 4 October 2019, p. 3), and this is also taken into account.
Letters and References
In evidence before me were five letters and references in support of the offender.
A letter from the offender, undated, includes the following:
I am writing this letter to express my sincere remorse for my offending …There is no excuse for my actions I accept full responsibility for what I have done that has led to pain and hurt to the young lady, her family, my family, the friends that have come to expect more from me and are shocked and saddened by my sin and guilt …
In reflection about the time that lead up to the actions that I am guilty of, I can see that there were things that I have done wrong and things that I could have done better to prevent this happening…[The] propulsion to unhealthy work tendencies and an unhealthy compulsion to want to over achieve led to unhealthy habits and a breakdown in character issues…
The other thing that became apparent during the time leading up to my crime was an undiagnosed mental illness. My psychiatrist and psychologist, with whom I have been regularly attending since this incident, have diagnosed a ‘Bipolar Mania’ event during the time leading up to this incident … The [diagnosis] of Bipolar did come as a shock to me but has also answered a lot of questions regarding my emotional health during my upbringing and life …
Although there may be contributing factors leading up to my actions in regards to this crime, they do not take away my guilt or lessen the hurt that my actions have caused to so many people, both directly and indirectly. Of this crime I am guilty.
I would also like to take the opportunity to offer unreserved apologies to the many people affected by my actions.
My first apology is to … the young person that bore the brunt of my sinful actions. This young person was totally innocent and did nothing to in any way to deserve my indecent transmissions. I can only hope that my actions do not cause significant impact into her mental health, social interactions and current and future relationships. I believe that my actions could have done great damage in her ability to trust people and for that I am sorry…
To my friends and greater society. I am sorry that I have let you down. My actions have shown that the trust that I had was undeserved and that my weaknesses can cause so much damag[e]. Please know that I will seek to make amends and help serve the community to make up for my actions…
I now throw myself on the mercy of the court to await my punishment that I will seek to do honourably to repay society and I also to continue self-reflection and improvement through engaging with professionals to ensure that my short comings will never again result in my doing this or anything like it again.
A letter from a long-term friend of the offender, dated 21 June 2019, includes the following:
I would like to emphatically relay that this situation is completely out of character for [the offender]. I have always found [the offender] to have the highest moral and personal integrity, especially during his long tenure in various Christian ministry capacities.
…
He has quite simply been a shell of a man, broken heavily and in the absolute pits of despair. He is so remorseful for his actions and regularly speaks of his deep regret for everything that‘s happened. … [The offender] has surprisingly been keen to “pay the price” for his mistakes, whatever they look like.
A letter a former colleague in the United Kingdom, dated 25 June 2019, includes the following:
It was a terrible shock when I was made aware of the accusation against [the offender]. It appeared so very much out of character for the man I worked with.
…
I have spoken to [the offender] a few times since he was charged. In those conversations he has appeared to be genuinely broken and remorseful. [The offender] accepted responsibility for his actions. He is ashamed and full of regret … It has been encouraging to see him engage in some self-analysis and begin to explore what pressures and situations enabled and contributed to his actions.
A letter from a former parishioner of the offender in the United Kingdom, dated 22 June 2019, includes the following:
[The offender] was a parental figure with huge influence on me as the child of a single mum …The morals he instilled will stay with me forever. I am sad that other kids will not benefit as I did. I know he is sorry and would do anything to change it.
A letter from a friend of the offender from the United Kingdom, dated 21 June 2019, includes the following:
He was able to inspire and connect with large numbers of young people, at holiday camps and weekends away and also relate on a 1:1 basis, building impactful relationships… [The offender] worked tirelessly during his time at our church, showing himself to be generous of his time and efforts.
…
Knowing him as I do, I believe with support and, after he forgives himself, he will return to helping people in some capacity, in the future.
A letter from an Anglican bishop to the Defence Force, dated 19 June 2019, includes the following:
Over weeks during the court appearance [the offender] stayed with my wife and me in Canberra. We have observed a broken and contrite man. A man full of remorse, and sad self-reflection. [The offender] clearly acknowledges his offence against community, but as well his sin before God, which is of greater significance for a one time leader in the church. [The offender] is aware that his offence has destroyed not just a blossoming ministry, but a marriage, and lifetime of relationships, and he prays for those whom he has hurt because of his behaviour. While bitterly sad and broken, [the offender] accepts the consequences of his behaviour and would seek forgiveness and restoration of relationships wherever possible, while recognising that some things can not be undone.
I take these references into account on sentence.
Intensive Correction Order Assessment Report and Breach of Bail
When this matter originally came before me on 28 June 2019, I determined that I should give consideration to the sentence being served by way of an Intensive Correction Order (ICO). To that end I referred the offender for assessment.
On 19 July 2019, the offender appeared before the Supreme Court having breached his bail conditions by accessing the internet for an unauthorised purpose. The breach was admitted by the offender. The discovery of the breach was described by the prosecution as follows (Transcript of Proceedings on 4 October 2019, pp. 8-9):
The facts of this, in very short compass, are that Mr Champness, upon his employment being terminated by the church, purchased the laptop that he had already in his possession, in accordance with standard practice. However, the antivirus software on that laptop continued to be registered to the church. In due course a report was sent to the church. That report evidenced certain […] activity by Mr Champness.
The prosecution has provided a number of supplementary documents which detail the nature of the breach. In short summary, the offender accessed a number of adult pornographic and adult sexual websites, in breach of his bail condition not to access the internet save for a limited number of purposes including: work, arranging medical appointments, use of maps and internet banking.
On 23 July 2019, the matter came before me again where it was accepted by counsel for the offender that as a result of the breach of bail, the matter should proceed in the absence of the ICO report. Counsel for the offender submitted that “part of the breach is related, at least in part, to a lack of support network in the ACT” and “that means an ICO is not viable” (Transcript of Proceedings on 23 July 2019, p. 3).
On that date, the prosecution conceded there was no evidence whatsoever that the material accessed related to underage individuals, but rather to adult pornographic and adult sexual matters (Transcript of Proceedings on 4 October 2019, p. 9.1-10). It must be highlighted at this juncture that, as was accepted by the prosecution, “to have looked at ABC News would have breached the bail order” (Transcript of Proceedings on 4 October 2019, p. 11.45-46).
It was submitted by the prosecution that the breach of bail is relevant for prospects of rehabilitation in that it is relevant to the prospect of future compliance with court orders and the ability of the offender to manage impulses and avoid risk.
In this respect, counsel for the offender submitted:
In some ways the breach can be seen as neutral as it relates to the ability to comply with court-imposed conditions. It is obviously a concern, but so far as it relates to the risk of sexual reoffending it seems to support what Mr Champness reports to Dr Smith, namely that, outside the offence before the court, Mr Champness’ sexual interest are not of a type that are regarded as illegal or inappropriate.
I take into account the breach and I also take into account the nature and context of that breach, in accordance with the submissions of both the prosecution and the defence.
Further Evidence Regarding Mental Health
Evidence following breach of bail
In its supplementary materials provided on 23 September 2019, the prosecution provided a report authored by Dr Veena Gamage, psychiatry registrar of the Mental Health Short Stay Unit in the Emergency Department of the Canberra Hospital, which included the following:
[The offender] presented to emergency department … on [M]onday the 15th of [J]uly, voluntarily expressing suicidal ideation with fleeting intent and plan to crash his car after being contacted by AFP following him breaching his bail conditions. [H]e was admitted to Mental [H]ealth Short stay unit for crisis containment and psychiatric assessment.
His presentation was in the setting of several psychosocial stressors (loss of employment, separation from wife and breakdown of marriage of 13 years, ongoing strain of finding employment and social isolation) … He stated feeling distressed by the prospect of having to return to Canberra during the weekend and resorting to browsing internet for commercial sex workers as a way of coping with his distress.
He stated feeling “bored, sad and anxious” during his visit to Canberra, and wishing to continue to live in Newcastle…
As stated above, in submissions on 23 July 2019, the prosecution submitted that “there is no evidence of any of [the sexual content] being underage” (T 9.1-2).
Following the breach, counsel for the offender also provided a further letter from Dr Henrick, dated 24 September 2019, which includes the following:
[The offender] remains profoundly depressed regarding his offending behaviour…He has reported ongoing suicidal ideation and describes his feeling that he is a burden to everyone, from the Australian taxpayer to his estranged wife … I remain deeply concerned about [the offender’s] wellbeing.
…
If [the offender] is to continue residing in the Newcastle region, as is his expressed desire, he would benefit greatly from regular ongoing attendance at psychological therapy sessions. Failure to do so would markedly elevate his risk of self-harm, which has been and remains in the ‘High Risk’ range…[I]t is strongly recommended that he continue treatment with this clinician if possible.
Psychological Report of Dr Rebecca Smith
On 4 October 2019, the proceedings were adjourned to allow the preparation of a further report on aspects of rehabilitation and risks of reoffending. The report outlines in detail the offender’s subjective circumstances, including his difficult childhood and current mental health issues. Dr Smith’s observations included: that the offender did not wish for his unmanaged psychiatric condition to be perceived as an excuse; that the offender expressed victim empathy and insight into the consequences of the offending; and that he has spent considerable time in self-reflection and treatment, attempting to gain insight into his offending behaviours.
Dr Smith made the following conclusions:
(a)having outlined caveats and limitations to such assessments, the offender was assessed as moderate-low risk of recidivism; and
(b)the offender has good prospects of rehabilitation provided he continues with treatment, continues taking medication, and continues engaging in help-seeking strategies should his mental health deteriorate.
In respect of the terms of reference of the report, Dr Smith further stated:
(a)the offender’s uncharacteristic behaviours result from his Bipolar Disorder and manic episodes and it will be important for the offender to acknowledge such symptoms;
(b)that he agrees with Dr Henrick regarding the need for psychological intervention. Dr Smith also recommended participation in programs which encourage constructive social interaction and sex offender-specific intervention; and
(c)that provided the offender’s mental health remains stable, there are no limitations on the offender complying with a good behaviour bond with community service conditions.
Counsel for the offender submitted the observations and conclusions of Dr Smith indicate increased understanding and remorse, demonstrating a desire to change his behaviour. Counsel also highlighted the observations of Dr Smith which support the conclusion that the offender does not have a particular sexual interest in children.
While accepting that the mental condition is relevant to sentencing by way of context, the prosecution submitted the Verdins principles do not apply given the following conclusion of Dr Smith:
It is the author’s opinion thus, that whilst it does not excuse his offending behaviour, nor is there a causal association, Mr Champness has [a] psychiatric condition which is a relevant mitigating factor regarding his offences.
(emphasis added)
In this regard, counsel for the offender indicated that, as the causal link was not established in accordance with Verdins, it was not relied upon in that regard. I therefore accept the prosecution’s submission on moral culpability and causation, as it is in accordance with my view of the evidence.
With respect to prospects of rehabilitation, the prosecution accepted the findings of Dr Smith, but noted the early stage of the offender’s treatment. It was submitted that the Court should be cautious with respect to prospects of rehabilitation.
It must be said that the prospects of rehabilitation are guarded without the benefit of ongoing counselling. The prospects of rehabilitation are significantly assisted by ongoing counselling. I indicate that, in light of the treatment that has begun, there are significant prospects for rehabilitation.
Criminal History
The offender has no criminal history. The prosecution conceded the offender is a person of otherwise previous good character. I therefore accept that the offender was a person of good character prior to the commission of this offence.
Plea of Guilty
Pursuant to s 16A(2)(g) of the Crimes Act 1914 (Cth) (Crimes Act), a sentencing court must take into account the fact that a federal offender has entered a guilty plea.
While the Court is not permitted to reduce a sentence for a Commonwealth offence on account of the utilitarian value of the plea in the ACT: R v Harrington [2016] ACTCA 10; 11 ACTLR 215, in R v KB [2019] ACTSC 136 at [60], I noted the position in New South Wales after Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1 and observed that I remain bound by the decision of Harrington until the conflict in the authorities is resolved. The prosecution submitted that a court can consider the plea in the context of genuine remorse, acceptance of responsibility, or a willingness to facilitate the course of justice: Cameron v The Queen [2002] HCA 6; 209 CLR 339.
Counsel for the offender submitted that the plea of guilty was at the earliest reasonable opportunity, following the withdrawal of a different charge. The Crown conceded the plea was entered at the earliest reasonable opportunity.
While the prosecution conceded that the plea indicated a willingness to facilitate the course of justice, it was submitted the plea did not demonstrate significant remorse or acceptance of responsibility. Moreover, the prosecution case was submitted to be “very strong”.
Counsel for the offender accepted the prosecution’s case was “overwhelming” (Transcript of Proceedings on 28 June 2019, p. 20.14-15) but submitted that the plea demonstrated remorse, acceptance of responsibility, and a willingness to assist the course of justice. Accordingly, it was submitted that a discount of approximately 20-25% would be appropriate.
Taking into account the matters set out above, I therefore allow a 20% discount for the plea of guilty.
Time in Custody
The offender has spent no time in custody referable to this offence.
Cases
In the case of federal offences, it is implicit in Part IB of the Crimes Act that I must have regard to current sentencing practices throughout the Commonwealth: see R v Pham [2015] HCA 39; 256 CLR 550 (Pham) at [18], [23]-[24]. Regard must be had to sentencing decisions of intermediate appellate courts in comparable cases as “yardsticks” that may serve to illustrate but not define the possible range of sentences available: see Pham at [29]; Hili v the Queen [2010] HCA 45; 242 CLR 520 at [53]-[54] (Hili).
I was referred to the following cases by the prosecution. The prosecution submitted that these cases illustrated a sentencing pattern but conceded utility is reduced by the differences in factual circumstances.
In Kristensen, the offender pleaded guilty to a single charge of indecent communication, contrary to s 474.27A(1). The offender used online applications to communicate in a sexualised manner with numerous victims aged 11 to 15 over the course of at least 8 months, with some communications involving child abuse material. The offender had no relevant prior convictions, made early admissions and did not attempt to disguise the offending, but lacked insight into the impact of the offending. On appeal, after applying a discount of 25%, the offender was resentenced to a term of 1 year and 6 months’ imprisonment to be released on a recognizance release order after 1 year.
In DPP (Cth) v Walls [2014] VSCA 323, the offender was charged with one count of procuring a person under the age of 16, one count of soliciting child pornography and two charges of breaching s 474.27A. The offender contacted three victims between the ages of 14 and 15 over a period of nine months. The communications included pictures of the offender’s genitalia and requests for photographs from the victims. The offender was between 25 and 26 years old at the time and was found to have good prospects of rehabilitation. The offender received a total sentence of 22 months’ imprisonment, including 4 months each for the s 474.27A offences, to be released on a recognizance release order forthwith. The Crown appeal was dismissed.
In Edwards v The Queen [2013] VSCA 188, the offender was charged with one count of accessing child pornography, one count of making child pornography available, one count of possession of child pornography, and one s 474.27A offence. The s 474.27A offence was constituted by the offender engaging in sexually explicit online communications with a person who stated they were 13 years old. The offender had no criminal history, had an intellectual disability, had a history of traumatic personal experiences, and it was determined prison would be more burdensome to the offender. The offender was found to have demonstrated remorse and to be capable of rehabilitation. On appeal the offender was resentenced to nine months’ imprisonment, four months of which was for the s 474.27A offence, to be released on a recognizance release order after four months.
With respect to the cases relied upon by the prosecution, counsel for the offender submitted that while distilling relevant principles, these cases are not useful as comparable cases. Accordingly, I was also referred to the following cases by counsel for the offender, although it was noted each involved more serious conduct than the present case and the decisions are at first instance.
In R v Waters [2017] ACTSC 226, the offender pleaded guilty to one s 474.27A offence. The offender communicated with a 15-year-old over Facebook Messenger and requested a shirtless picture of the victim, which was accepted to be “at the lower end of the range of indecency”: at [4]. The offender was found to have expressed remorse and have reasonable prospects for rehabilitation. After a discount of approximately 15%, the offender received a sentence of a Good Behaviour Order for a period of 20 months with a number of conditions. The prosecution distinguished the present case by reference to the additional factors of persistent, manipulative and escalating messages and the breach of trust.
In R v Cowley [2017] ACTSC 213, the offender pleaded guilty to one s 474.27A offence. The offender conversed for a limited period over Facebook with the daughter of a relative. The communications involved comments of a sexual nature and requests for “sexy” pictures of the 12 year old victim. The offender had no relevant criminal history, was diagnosed with an adjustment disorder with depressed mood, and was found to have good prospects of rehabilitation. The offender received a Good Behaviour Order for a period of two years with a community service condition. Counsel for the offender submitted this case to be most comparable to the present case. The prosecution distinguished the present case by reference to the longer period of the messaging and the close relationship between the offender and victim.
In R v Conway [2017] ACTSC 275, the offender pleaded guilty to three offences against s 474.27A and one offence of soliciting child pornography. The offender engaged in conversations with girls under 16 (or a police officer disguised as such) for a period of over a year. The offender had had no prior convictions, expressed remorse, did not minimise his actions and commenced counselling. After applying discounts of approximately 25%, the offender was sentenced to a total of 31 months imprisonment, served by way of an Intensive Correction Order with a number of conditions. The prosecution submitted the factual matrix in the present case is “very different”, noting the absence of an abuse of trust, but accepting the communications were more explicit than the present case.
The prosecution submitted that the cases referred to by the offender lack the sustained relationship which is present in this case. It was further submitted that “very limited weight” should be afforded to the decisions as, in sentencing for a federal offence, a court should have regard to decisions of intermediate appellate courts throughout the Commonwealth: see Hili at [56].
In the context of discussing comparable cases I have regard to what French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed in Hili of consistency in sentencing at [18]:
[T]he consistency that is sought is consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence.
Statutory and Other Relevant Considerations
When sentencing offenders for offences against the laws of the Commonwealth, I am bound to apply the provisions of Part IB of the Crimes Act, as well as some common law principles of sentencing, including proportionality: see Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58; Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638.
State and Territory sentencing laws operate only so far as they are applicable, and the laws of the Commonwealth do not otherwise provide. They are excluded where applicable Commonwealth sentencing laws leave no room for their application: see Pham.
The Court sentences in the context of s16A of the Crimes Act, which pertains to matters to which the Court is to have regard when passing a sentence.
The Court is required to impose a sentence of appropriate severity in all the circumstances of the offence under s 16A(1) of the CrimesAct.
Section 16A(2) provides a number of mandatory considerations on sentence, which include the consideration of general and specific deterrence, adequate punishment, and rehabilitation. I have taken into account those matters under s 16A(2) that are relevant to the offender’s sentence.
The prosecution submitted that general deterrence is the paramount consideration for this offending and matters of mitigation should therefore be given less weight: citing Kristensen at [13].
Counsel for the offender submitted there was less need for specific deterrence due to the offender’s demonstrated remorse and the fact that he has already experienced repercussions, including the loss of his job and estrangement from certain family members.
As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357; Elias v The Queen [2013] HCA 31; 248 CLR 483. It was also underlined in Markarian at [27]:
As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
In Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, the High Court emphasised that the guideposts that are the purposes of sentencing sometimes point in different directions:
The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.
I also note the following statement by French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
Sentence
It must be recognised by the Court that the offence committed against the victim has had a serious and significant impact upon her. Both the short and long-term consequences of being the victim of this offence must be acknowledged.
Section 17A of the Crimes Act provides that a sentence of imprisonment should not be imposed unless no other sentence is appropriate in all the circumstances of the case.
In terms of ultimate disposition, the prosecution submitted that in light of the factors outlined above, imprisonment is the only appropriate sentence in this matter. It was submitted the purposes of sentencing would not be achieved by releasing the offender forthwith.
Counsel for the offender submitted that a term of imprisonment would disrupt the offender’s engagement with his psychologist and may impact his progress. Counsel for the offender submitted a Good Behaviour Order and a suspension of the sentence would be appropriate.
In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offence and the subjective matters.
The appropriate sentence for the offence of using a carriage service to transmit an indecent communication to a person under 16 years is 15 months reduced to 12 months on account of the discount for the plea of guilty.
I note in this context the observation of Murrell CJ in R v MB [2014] ACTSC 399 at [32] that a court may impose a recognizance release order that exceeds the period of imprisonment and I propose to undertake that course in the offender’s case.
As Bray CJ, (Bright and Zelling JJ agreeing) stated in Elliott v Harris (No 2) (1976) 13 SASR 516 at 527, of the view that a suspended sentence amounts to no punishment, it:
… reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency.
See also R v Nahlous [2013] NSWCCA 90; 228 A Crim R 503, Zaky v The Queen [2015] NSWCCA 161, R v Zamagias [2002] NSWCCA 17; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321; and R v Butters [2019] ACTSC 143.
I note and take into account counsel for the offender’s submission regarding a suspended sentence and a recognizance release order that the offender would have “the Sword of Damocles hanging over his head” (Transcript of Proceedings on 4 October 2019, p. 15.27-30).
In respect of the offender’s psychological treatment, I note it is possible for ACT Corrective Services to transfer supervision to their NSW counterparts, which may facilitate the offender continuing treatment in Newcastle.
Orders
I make the following orders:
(a)I record a conviction in relation to the offence.
(b)For the offence of using a carriage service to transmit an indecent communication to a person under 16 years (CC2019/5013), the offender is sentenced to a term of 12 months of imprisonment, commencing on 17 December 2019 and ending on 16 December 2020.
(c)I impose a recognizance release order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) releasing the offender immediately on security of $1000 on the conditions that:
(i)The offender be of good behaviour for a period of 2 years from 17 December 2019;
(ii)The offender continue to receive psychological treatment under the supervision of ACT Corrective Services; and
(iii)The offender not contact the victim, [redacted], for a period of 2 years from 17 December 2019.
| I certify that the preceding [113] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: |
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