R v Elcheikh
[2019] ACTSC 359
•20 December 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Elcheikh |
Citation: | [2019] ACTSC 359 |
Hearing Date(s): | 29 August 2019, 19 December 2019, 20 December 2019 |
DecisionDate: | 20 December 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [91]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to cause offence – using a carriage service to procure a person under 16 years – where offender provisionally diagnosed with a schizoaffective disorder – application of Verdins principles – whether registration under Crimes (Child Sex Offenders) Act 2005 (ACT) would be extra-curial punishment – whether intensive correction order appropriate |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A, 16E, 20AB Crimes (Child Sex Offenders) Act 2005 (ACT) s 9 Crimes (Sentencing) Act 2005 (ACT) s 11 Criminal Code 1995 (Cth) ss 474.17, 474.26 |
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 DPP (Cth) v Boyles [2016] VSCA 267 DPP (Cth) v Singh [2017] VSCA 146 DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237; 53 VR 546 DPP v Ellis [2005] VSCA 105; 11 VR 287 Elias v The Queen [2013] HCA 31; 248 CLR 483 Hili v the Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 R v Asplund [2010] NSWCCA 316; 216 A Crim R 48 R v Carney (No 2) [2014] ACTSC 61 R v CV [2013] ACTCA 22; 233 A Crim R 67 R v Fuller [2010] NSWCCA 192 R v Gajjar [2008] VSCA 268; 192 A Crim R 76 R v Goboly [2016] ACTSC 322 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Meyboom [2012] ACTCA 48 R v Pham [2015] HCA 39; 256 CLR 550 R v Poynder [2007] NSWCCA 157; 171 A Crim R 544 R v TW (Supreme Court of the ACT, Burns J, 15 November 2013) R v Verdins [2007] VSCA 102; 16 VR 269 TMTW v The Queen [2008] NSWCCA 50 Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) Gabriel Elcheikh (Offender) |
Representation: | Counsel D Rich (Crown) B Dunne/H Roberts (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 161 of 2019 |
LOUKAS-KARLSSON J
Introduction
On 12 July 2019, Gabriel Elcheikh (the offender) pleaded guilty to:
(a)four offences of using a carriage service to cause offence contrary to s 474.17(1) of the Criminal Code 1995 (Cth) (Criminal Code) (CC19/4347; CC19/4587; CC19/4588; CC19/4821). The maximum penalty for each of these charges is 3 years’ imprisonment and/or a fine of $37,800; and
(b)one offence of using a carriage service to procure a person under 16 years of age contrary to s 474.26(1) of the Criminal Code (CC19/5853). The maximum penalty for this charge is 15 years’ imprisonment and/or a fine of $189,000.
Agreed Facts
The agreed facts are set out in the Agreed Statement of Facts, which forms part of the Crown Tender Bundle.
In late February 2019, the offender advertised online a part-time employment opportunity for a “kitchen helper” at a café where he worked with his mother.
Victim 1
On 22 February 2019, the first victim (Victim 1), who was 17 years of age at the time, located the offender’s advertisement online whilst searching for part-time employment opportunities. Victim 1 applied for the position via an online portal and provided a number of personal details including high school information. She subsequently sent the offender an SMS message with further information, including her age and that her hobbies included rock climbing.
Victim 1 then received a SMS message from the offender, stating it was “good to know she was fit and healthy”. The offender requested photographs of Victim 1 wearing a tank top and shorts in order to establish her level of physical attractiveness as he only wanted to work with “attractive people” as he desired to “flirt with and grope them” in the workplace. The offender stated that he would be willing to pay $40 per hour for this option, which was “more than enough compensation” for the flirting and groping.
Victim 1 replied to the offender via SMS declining the position and advising that no amount of money could compensate her for his behaviour. The offender responded electronically wishing her good luck with the job search and stating that all of his actions were legal.
Victim 2
On 1 March 2019, the second victim (Victim 2), who was 20 years of age, located the offender’s advertisement and applied via the online portal.
The offender sent the following email to Victim 2 that same day:
Hey […] It’s Gab from the cafe. just to double check so you understand whats going on [sic]. I am looking for someone who is ok with revealing a bit of skin and be capable in the kitchen I would like someone interesting tough willed to who isnt afraid of being groped on the legs and chest or be touched [sic]. As i am working alone I find this would keep the day more interesting though the maximum wage I am offering varies between $28 - $45 an hour Depending on how accepting you are of the conditions. [sic] I will also be handling the employee’s tax payment. Since there is groping and touching involved this is why the wage is incredibly high for this line of work not to mention they need to be serious and handle the work but training for food prep and coffee will be taught by me as I am patient. I am also double checking if you are okay with this?
Victim 2 did not reply to the offender’s email.
Victim 3
On 4 March 2019, the third victim (Victim 3), being 16 years of age, applied for the advertised position via the web portal. Victim 3 uploaded documentation which included her residential address, contact details and high school information. On 5 March 2019, Victim 3 followed up the application by SMS. A short time later, the offender replied stating:
Hey there […] Im cautious about my latest applicants as none have seemed interesting enough many arent willing to wear shorts or a tank top for service [sic].
Im also looking for someone who will not only work well but is fine with a bit of playful flirting and groping that is why Im offering 3x the normal wage now at $35 an hour to a maximum of $45 for someone who wont make the day boring but also keen on advancing their skills that i can also trust to help if i am sick once they are trained [sic].
The mother of Victim 3 then contacted the offender. She asked the offender why job applicants were required to wear shorts and tank top. The offender stated words to the effect of that it was “for the customers”. Victim 3’s mother then asked the offender why Victim 3 would be required to engage in flirting and groping with him. The offender abruptly ended the telephone conversation. A short time later, the offender sent an SMS to Victim 3 stating: “as you are underage we cannot accept you”.
Victim 4
On 10 March 2019, the fourth victim (Victim 4), being 14 years of age, applied for the advertised position via the web portal. Included in the information provided to the offender was Victim 4’s resume stating her date of birth. On 12 March 2019, the offender sent the following message to Victim 4 by email:
Hello sorry about the late reply as i had a lot of candidates to analyse the r3sumes of [sic]. Well there are two employ options I decided to offer one is the regular $15 an hour the other is $45 an hour [sic]
The $45 an hour does require some extra things such as touching/groping in a playful manner which is why the wage is so high as I want someone who will make the day interesting we could also negotiate this as im after someone who wont be boring during the work day but also work well [sic].
The $15 an hour is just regular work its as much work as the $45 except there is no touching/groping.
Please keep in mind the touching would not be done all the time and would be more private such as in the kitchen and there is a limit as to how far.
Which were you interested in?
Victim 4 did not reply to the email.
Victim 5
On 12 March 2019, the fifth victim (Victim 5), being 16 years of age, applied for the advertised position via the web portal. On the same day, Victim 5 received an email from the offender in almost identical terms to that received by Victim 4, as outlined at [12] above.
A subsequent search of the email account belonging to the offender revealed male applications for the advertised position had been advised the position was only for females.
Victim Impact Statements
In evidence before me were Victim Impact Statements of Victim 2 and the mothers of Victims 3 and 4. The Victim Impact Statements relating to Victims 2 and 3 were read out by the prosecution at the sentence hearing.
The Victim Impact Statement of the mother of Victim 3 included the following:
[Victim 3] has not applied for any other jobs since this experience, so her goal of saving for a car is on hold. She now sees the world in quite a different way. She does not trust as easily, questions herself and has become more cautious about going out with friends.
The Victim Impact Statement of the mother of Victim 4 contained the following:
[Victim 4] was applying for her first job and she received the correspondence from Mr Elcheikh. This was a real shock to her and she has been scared off applying for other jobs. As a 14 year old girl not having the confidence to apply for jobs because you are scared that someone might want to hurt you if you work for them has made it impossible for [Victim 4] to get a job. This occurred in March and [Victim 4] has not applied for another job since and it has been 6 months.
The Victim Impact Statement of Victim 2 contained the following:
I felt really sick to the stomach for a while and was questioning how someone could’ve just [written] this email being so oblivious to how wrong it was. It still makes me sick to this day and even worse, it makes me scared. I wasn’t really exposed to this type of stuff before, I knew it was out there but I never though it’d happen to me and it’s made me nervous just to apply for other jobs …
I feel sad, sick, and anxious after the day I received this email and terrified to trust people.
The extent of the impact upon the victims was made clear by the Victim Impact Statements. The reading of the Victim Impact Statements is important as the offender heard what was said. Courts know the serious effects of such offences as these. Nevertheless, it is important and valuable to hear the words of the victims.
The court acknowledges the significant impact that the offences have had and continue to have on the victims.
Objective Seriousness
Counsel for the offender submitted that each of the offences were very similar in nature and accepted that their nature was “distasteful and offensive” (T 13.20). It was further accepted that the age of the victims made them vulnerable and that that was an aggravating feature of the offending. However, it was submitted that the messages were less objectively serious than other possible messages, as they were not explicit in nature. Moreover, the number of messages was limited, and the victims did not receive “pestering messages” as is often seen with such offences (T 14.16-17).
Counsel for the offender further submitted that the offending was not sophisticated, and no attempt was made to avoid discovery. While it was accepted there was a breach of trust by the offender, it was submitted the degree of trust was limited given the lack of a pre-existing relationship. It was ultimately submitted that these offences were “at the lower end of objective seriousness” (T 14.18).
With respect to the s 474.17 offence, the prosecution submitted the behaviour was “clearly offensive and inconsistent with community standards”, noting in particular the position was advertised as “great for students”. It was submitted the offending was in the low to mid-range of objective seriousness.
With respect to s 474.26 offence, the prosecution accepted that there was no indication he knew the age of Victim 4 but submitted that the offender was on notice that high school students were applying, and the position was advertised as being suitable for students. By reference to the factors set out in R v Asplund [2010] NSWCCA 316; 216 A Crim R 48, the prosecution noted the conduct was a single message, similar to those sent to other victims, the proposed behaviour was less serious than other possible behaviour, there was a monetary incentive, there was no prior relationship, there was no attempt to hide identity, there was a power imbalance, and the conduct was deliberate and planned. In light of these factors, ultimately it was submitted this offence was at the lower end of objective seriousness.
It was submitted by the prosecution that the impact was significant, as evidenced by the Victim Impact Statements. Moreover, it was submitted the offender persisted in the behaviour without concern of age and acted in a predatory manner.
I find the offences to be at the lower range in accordance with the identifying factors outlined by the prosecution.
Subjective Circumstances
In evidence before me is the pre-sentence report (PSR) prepared for the offender.
The PSR notes the offender was raised in Melbourne, Victoria, as one of four siblings. He reported a stable upbringing with no significant trauma. The offender reported supportive family relationships but noted certain relationships had been strained by the offending.
The offender left high school in Year 11, later completing his studies at the Canberra Institute of Technology. The offender is currently unemployed but reported previous periods of employment in family businesses.
The PSR notes the offender describes himself as “a loner” with no significant friendships outside of his immediate family. The offender reported a distrust for others owing to his experience in high school.
The offender has no historical illicit substance use.
The PSR notes that the offender reported mental health concerns dating back to his adolescence and reported to the author that he had been diagnosed with schizophrenia and Major Depressive Disorder. The offender stated he experiences symptoms of anger paranoia, fear and voices when not medicated. The offender attributed the offending to not being medicated at the time. He has since recommenced his medication regime.
In respect of his attitude to the offending, the PSR notes that the offender agreed with the Statement of Facts but felt “unfairly targeted”. The report notes the offender “displayed limited insight” into the effect of the offences on the victims although acknowledged “he knew what he did was really bad” and that he was “disgusted in himself”. The author notes the offender’s belief that he does not consider the offences to warrant a custodial sentence and that he threatened to commit suicide should one be imposed.
The offender was assessed as being of a “medium/high” risk of sexual reoffending, but “medium-low” risk of general reoffending. The author notes the offender has not addressed the sexual nature of the offences “and did not appear to recognise personal benefits to engagement in related programs”. The author also notes concern about the offender’s unwillingness to engage in counselling and that he delayed addressing his schizophrenia until he was aware of the criminal charges.
Psychological Assessment Report
In evidence before me was a psychological assessment report under the hand of Dr Danielle Clout, clinical psychologist, dated 9 July 2019.
In response to terms of reference for the report, Dr Clout’s conclusions included the following:
(a)The offender (provisionally) meets the diagnostic criteria for a Schizoaffective Disorder and the symptoms described, both on examination and at the time of the offending, impaired his ability to exercise appropriate judgment and positive symptoms at the time of the offending such as auditory hallucinations likely impaired his judgment further. The symptoms also likely impaired his ability to make rational choices and impacted his level of disinhibition.
(b)The offender had insight into the wrongfulness of the conduct, although lacked an awareness of the seriousness of the conduct.
(c)The symptoms experienced by the offender likely “obscured his intent to commit the offence”.
(d)It is likely the nature and severity of his condition “significantly contributed to his offending behaviour”.
(e)The offender’s general cognitive ability is impaired to the extent of difficulty recalling new information, forgetfulness and impaired concentration.
(f)A custodial setting is likely to have an adverse effect on his mental health. Dr Clout noted particular concern with respect to periods of suicidal ideation by the offender. The offender would likely find imprisonment more onerous than a person without a serious mental illness, and he is likely to be particularly vulnerable within the prison population.
(g)“Given the need for further psychiatric assessment, and long-term psychiatric monitoring and psychological treatment, the range of treatment options and professionals available in the community is likely to be advantageous.”
Dr Clout was cross-examined by the prosecution when the matter was before me on 29 August 2019. Dr Clout accepted that the diagnosis of the offender was a provisional one, that is, there is a presumption that the diagnostic criteria will be fulfilled but certain further testing is required. Dr Clout considered it possible, but unlikely, that the offender would be diagnosed with something other than a schizoaffective disorder (T 9.10).
Given the absence of a reference to the procurement offence in the report, Dr Clout accepted that she would have questioned the offender about that offence had she been made aware, but gave evidence that sexual offending assessments would nevertheless not have been applied as they are generally more relevant to circumstances where there is “more contact” with the victim (T 11.5-9).
Counsel for the offender submitted that the conclusions of the report attract the principles from R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins), specifically that “this matter is one which is a less vehicle for general deterrence and that the moral culpability of the defendant may be lessened somewhat in the circumstances” (T 16.25-28).
The prosecution submitted that the report should be afforded limited weight given it was based purely on the oral history of the offender; it contained inconsistencies; it did not address the procure offence; and it contained only a provisional diagnosis.
It was accepted by the prosecution that the offender suffers from some form of mental disorder and that it may reduce moral culpability to a limited extent. However, by reference to the decision of DPP (Cth) v Boyles [2016] VSCA 267 at [43] (Boyles), it was submitted that because the symptoms arose from the offender voluntarily ceasing to take his medication, moral culpability should not be reduced. Counsel for the offender distinguished Boyles on the length of time medication had been taken, and the awareness of the implications of ceasing to take that medication. However, it was also noted that there was evidence of a degree of planning and rational forethought.
The prosecution did accept that there was some form of mental disorder, though the diagnosis of psycho-affective disorder was provisional. I accept that the moral culpability is reduced somewhat, though to a limited extent on the basis of the evidence relating to the mental condition. Similar considerations apply in relation to the question of general deterrence and hardship in custody.
Remorse
Counsel for the offender submitted that, while accepting responsibility for the offending, the degree of insight by the offender into his behaviour was “mixed”. It was submitted this related to feelings of shame and the complex issues referred to by Dr Clout. Ultimately, it was submitted it is (T 15.26):
[P]ossible for people to express complex and contradictory feelings about their own behaviour while still accepting responsibility and being profoundly remorseful.
I accept that any remorse expressed is circumscribed by the limited insight that has been expressed.
References
In evidence before me are a number of references in support of the offender.
First, a letter from the offender’s sister-in-law, dated 4 May 2019, which included the following:
I have known [the offender] for approximately 13 years…he has never strayed off the right path. He has always been a very quiet and shy person who is respectful of his family and those around him. Since meeting him I have watched him grow as a person, stepping out of his comfort zone and opening a café shop with his mother, that he was extremely proud of…I am aware he knows the seriousness of his actions and the consequences they have had, have made him retreat both mentally and physically…
In my opinion, I believe [the offender] is remorseful and would like to take responsibility for his actions and move forward in a positive direction with his life.
Second, a letter from the offender’s father, dated 12 August 2019, which included the following:
[The offender] is a harmless individual, he truly is harmless and will never mean to put anyone in that situation that could make them feel anything else because he knows for himself what it feels like to be placed in that harm. If anything, [the offender] has always attempted to better himself but every time he feels like [he’s] moving forward [he’s] been constantly been put down by others or by his own family. I know [the offender] never meant any harm to anyone and he understands what has occurred was wrong and you can see how remorseful he is.
[The offender] is not the individual that can hurt someone else like this. He is kind, caring and such a loving person. [The offender] is filled with life and joy, [the offender] is still in the learning process as he never got the chance when he was a child and a teenager.
Third, a letter from a cousin of the offender, dated 12 August 2019, which included the following:
[The offender] is such a harmless individual, he so kind and so caring for those around him and has always been so loving of those around him. He is honestly filled with life and he will do anything to help those around him. I know for a fact … [that he] never had the intent to harm anyone or place anyone in such an uncomfortable situation.
…
When I found out [the offender] is suffering from depression and anxiety, it truly damaged me. You can always sense the factors are there but all you could do is [assume] he has someone to talk to…[he has] always been ashamed to seek for help because he was afraid if other family members knew, it will cause him more pain than it should…I know how damaging this is to [the offender] and how much this will weigh on him.
Fourth, a letter from another cousin of the offender, dated 28 July 2019, which included the following:
I have grown up with [the offender] and know him very well he has been the type who wouldn’t do any harm to anyone a very shy and respectable young man, as a previous employer [the offender] was a great worker and had great work ethi[c] and was always proud of him.
…
[The offender] understands the seriousness of his own actions which led him to losing his shop which was his pride and joy and in all honesty he deeply regrets what he has done, no one is proud of his actions and we can all see how ashamed he feels of himself, so much he has secluded himself from his family and always retreats to his room.
Fifth, a letter from the offender’s uncle, undated, which included the following:
After moving to Canberra there were a few passings in the family which we all thought affected his mental health. [The offender] understands the seriousness of the situation he is in from his action and is very remorseful for what he has done…I hope [the offender] can move on from this in a positive manner and take this on board a lesson in his life…he is a very respectable young man and it was to all our surprise what had happened he had never done anything like this before.
Sixth, a letter from the offender’s mother, dated 12 August 2019, which included the following:
As a family we all understand what he did was wrong, and he truly is remorseful about it and did not understand how the intent could have been misunderstood…[the offender] has been placed in such a dark place, he does not know how to function anymore. He truly is ashamed of his actions and how this has been interpreted, [the offender] has been waking up every morning feeling ashamed and useless because of this situation.
He knows how much the business meant to the both [of] us and due to this we have lost everything. [My] son is suffering a lot as it is, all he needs is better attention and care.
I take these references into account on sentence.
Intensive Correction Order Assessment Report
When this matter originally came before me on 29 August 2019, I determined that I should give serious consideration to the sentence being served by way of Intensive Corrections Order (ICO). To that end I referred the offender for assessment.
The ICO assessment report dated 16 December 2019 confirms much of the material contained in the PSR. In addition, the author expresses concerns over the attitude of the offender to the offending, recording he thinks the charges are “unjust” and his actions were “just words”. The author notes he was medicated when expressing such views. It is also noted the offender is prohibited from seeing his brother’s children as a result of the offending.
The assessment concludes that the offender has been assessed as suitable for an ICO.
The prosecution drew the Court’s attention to references in the report to the minimising of the offending by the offender and similar statements made by his family members, but noted the importance of a stable family. The prosecution also drew the Court’s attention to the recommended additional conditions for an ICO: referral to a forensic mental health service, referral and assessment for a sex offenders treatment program, and no contact with the victims. Counsel for the offender submitted against any further conditions such as urinalysis as not being relevant.
Criminal History
The offender has no criminal history. The prosecution submitted that prior good character should be given less weight in offences against children of a sexual nature: R v Gajjar [2008] VSCA 268; 192 A Crim R 76 at [27]-[29] (Gajjar).
I take into account the fact that the offender has no prior criminal record and I also take into account the discussion in Gajjar in relation to general deterrence.
Plea of Guilty
The offender entered pleas of guilty in the Magistrates Court on 12 July 2019, being the fourth mention of the matter. The prosecution accepted that the offender entered an early plea and also submitted the Crown case was strong.
In sentencing for Commonwealth offences, a plea of guilty may be taken into account in mitigation of a sentence only where it is evidence of some remorse on the part of the offender, it indicates an acceptance of responsibility, or it shows a willingness to facilitate the course of justice: see Cameron v The Queen [2002] HCA 6; 209 CLR 339 at [11]-[15] (Gaudron, Gummow and Callinan JJ). The prosecution submitted that, in sentencing for Commonwealth offences, the Court is not permitted to reduce a sentence on account of the utilitarian value of any plea: see R v Harrington [2016] ACTCA 10; 11 ACTLR 215 at [38] (Murrell CJ); at [132] (Refshauge ACJ and Gilmour J) (Harrington); cf DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237; 53 VR 546. In NSW, the position as to utilitarian value is different to the ACT. In Xiao v The Queen [2018] NSWCCA 4; 96 NSWLR 1, a five judge bench concluded at [278]: “… it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing.”
Taking into account the current state of the law in the ACT as articulated in Harrington, I allow a discount of between 20% and 25% for the pleas of guilty.
Extra-Curial Punishment
An offence under s 474.26 of the Criminal Code is a registrable offence under the Crimes (Child Sex Offenders) Act 2005 (ACT). Counsel for the offender submitted that the registration of the offender would amount to extra-curial punishment, citing R v CV [2013] ACTCA 22; 233 A Crim R 67 (CV), R v Carney (No 2) [2014] ACTSC 61, TMTW v The Queen [2008] NSWCCA 50 for the proposition that this is not an irrelevant consideration. It was submitted that, as the content of the messages sent to a number of victims of a number of ages, it could be inferred the offender has no particular sexual interest in children.
It was submitted that, taking extra-curial punishment into account, the sentence for the s 474.26 offence could be imposed by way of a lengthy good behaviour order with no supervision.
The prosecution submitted that registration would not be extra-curial punishment but rather an incident of sentencing, citing DPP v Ellis [2005] VSCA 105; 11 VR 287. The caveat in that decision for exceptional circumstances at [16], was submitted not to apply in this case. In particular, it was noted the assessment in the PSR was that the offender is of a medium to high risk of sexual reoffending.
Registration is not an irrelevant consideration on sentence though in this case it has not been established that it is extra-curial punishment in accordance with the authorities, see: CV; R v Goboly [2016] ACTSC 322 at [56]; R v TW (Supreme Court of the ACT, Burns J, 15 November 2013).
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 Act1914 (Cth) (Crimes Act) that I must have regard to current sentencing practices throughout the Commonwealth: see R v Pham [2015] HCA 39; 256 CLR 550 at [18]; [23]-[24] (Pham). 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].
I was referred to the following cases by the prosecution.
In DPP (Cth) v Singh [2017] VSCA 146, the offender pleaded guilty to one s 474.26 offence. The offender had communicated with an undercover officer posing as a 14-year-old girl online. The graphic nature of the communications increased and ultimately the offender arranged to meet with the girl. The offender was 25 years old, had no prior convictions, and risked being deported. The offender was sentenced to a Community Corrections Order (CCO) for three years with a number of conditions, including community service and treatment programs. The Crown appeal against the inadequacy of the sentence was dismissed.
In Boyles, the offender pleaded guilty to one s 474.26 offence and one offence of soliciting child pornography material. The offender was working as the 15-year-old victim’s supervisor at a not-for-profit organisation. On her first day, the victim was sent 51 messages online requesting pictures and asking if she would engage in sexual activity. The victim continued to receive similar messages, totalling 311 messages over the next month. The offender also sent the victim a naked picture of himself. The offender was 26 at the time of the offending, had no prior convictions and was highly remorseful. The offender received a two and a half year CCO with a number of conditions. On appeal, the Court of Appeal exercised its residual discretion not to intervene after finding error in the application of Verdins principles.
In R v Fuller [2010] NSWCCA 192, the offender pleaded guilty to one s 474.26 offence, resulting from communications with an undercover officer posing as a 13-year-old girl. The communications were sexually explicit in nature and the offender transmitted images of himself masturbating. The offender arranged a meeting and proposed sexual activity. The offender was 55 years old at the time of the offending and held the position of a Catholic priest, but was found to be of a low chance of recidivism. Following a discount of 25%, the offender received a sentence of imprisonment for a period of six months. The sentence was found to be manifestly inadequate by the Court of Criminal Appeal and the offender was resentenced to 18 months’ imprisonment, released after six months to be on good behaviour for 12 months.
In R v Poynder [2007] NSWCCA 157; 171 A Crim R 544, the offender pleaded guilty to two s 474.26 offences. The offender had utilised a telephone chat service to contact a male purporting to be 15 years of age and an uncover officer posing as a 15-year-old girl. The offender offered the girl money for sexual activity and arranged a meeting. The offender was 50 years old at the time of the offending, had no prior convictions and had good prospects of rehabilitation. After a discount of 25%, the offender was sentenced to three years’ imprisonment to be released after one year and three months, upon entry into supervision for two years and a good behaviour bond for three years. The Crown appeal against the inadequacy of the sentence was dismissed.
Statutory and Other Relevant Considerations
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.
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 section 16A of the Crimes Act which pertains to matters to which the court is to have regard when passing a sentence. By reference to the matters referred to in s 16A, the prosecution submitted on a number of matters, including the following: the offending was a course of conduct (s 16A(2)(c)); that for procuring offences general deterrence is a primary consideration and specific deterrence must play a significant role (s 16A(2)(j) and (ja)); and that regard must be had to the offender’s risk of reoffending, prospects of rehabilitation (s 16A(2)(n)) and the harm to the victims (s 16A(2)(d) and (e)). I have taken into account those matters under s 16A(2) that are relevant to the offender’s sentence.
In determining a sentence, the Court is required to impose a sentence of appropriate severity in all the circumstances of the offence: s 16A(1) of the Crimes Act.
The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Rehabilitation is also an important consideration having regard to the offender’s prior good character.
The sentencing process also requires an examination of s 16E of the Crimes Act and alternatives to full-time imprisonment. Counsel for the offender submitted that the offences were not such that a term of imprisonment is inevitable. The prosecution submitted a term of imprisonment is the only appropriate sentence, but that the sentence could be served by way of alternatives to full-time imprisonment. When the matter returned before me on 19 December 2019, the prosecution maintained its position that alternatives to full-time custody would be within range.
With respect to the possibility of an ICO, counsel for the offender submitted it was important that the Court not impose a “crushing” sentence.
In my view, a term of imprisonment is appropriate but an ICO ought to be imposed.
When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
Sentence
It must be recognised by the Court that the offences committed against the victims have had a serious and significant impact upon them all. Both the short and long-term consequences of being the victim of these offences must be acknowledged.
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 offences and the subjective matters.
The appropriate sentence for the offence of using a carriage service to cause offence (CC19/4587) is 1 month and 10 days reduced to 1 month on account of the discount for the plea of guilty.
The appropriate sentence for the offence of using a carriage service to cause offence (CC19/4821) is 4 months reduced to 3 months on account of the discount for the plea of guilty.
The appropriate sentence for the offence of using a carriage service to cause offence (CC19/4347) is 4 months reduced to 3 months on account of the discount for the plea of guilty.
The appropriate sentence for the offence of using a carriage service to cause offence (CC19/4588) is 5 months reduced to 4 months on account of the discount for the plea of guilty.
The appropriate sentence for the offence of using a carriage service to procure a person under 16 years (CC19/5853) is 8 months reduced to 6 months on account of the discount for the plea of guilty.
Orders
I make the following orders:
(a)I record convictions in relation to the offences.
(b)In respect of the offence of using a carriage service to cause offence (CC19/4587) the offender is sentenced to a term of 1 month of imprisonment, commencing on 20 December 2019 and ending on 19 January 2020.
(c)In respect of the offence of using a carriage service to cause offence (CC19/4821) the offender is sentenced to a term of 3 months of imprisonment, commencing on 5 January 2020 and ending on 4 April 2020.
(d)In respect of the offence of using a carriage service to cause offence (CC19/4347) the offender is sentenced to a term of 3 months of imprisonment, commencing on 5 February 2020 and ending on 4 May 2020.
(e)In respect of the offence of using a carriage service to cause offence (CC19/4588) the offender is sentenced to a term of 4 months of imprisonment, commencing on 20 March 2020 and ending on 19 July 2020.
(f)In respect of the offence of using a carriage service to procure a person under 16 years (CC19/5853) the offender is sentenced to a term of 6 months of imprisonment, commencing on 20 June 2020 and ending on 19 December 2020.
(g)The sentence is to be served by way of an intensive correction order pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT), by way of s 20AB(1AA)(a)(ix) of the Crimes Act 1914 (Cth). I impose the following additional conditions:
(i)The offender be referred for assessment and treatment to a forensic mental health service and sex offenders treatment program, as directed by the Director-General; and
(ii)That the offender not contact [redacted].
| I certify that the preceding [91] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: |
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