R v Fuller

[2010] NSWCCA 192

New South Wales
Court of Criminal Appeal

CITATION:	R v Fuller [2010] NSWCCA 192
HEARING DATE(S):	25 June 2010
JUDGMENT DATE:	22 October 2010
JUDGMENT OF:	McClellan CJatCL at 1; Hislop J at 49; Barr AJ at 50
DECISION:	1. Crown appeal upheld. 2. The sentence imposed in the District Court is quashed. 3. In relation to the offence contrary to s 474.26(1) of the Criminal Code Act 1995 (Cth) a term of imprisonment of 18 months to date from 24 February 2010 and expire on 23 August 2011, with the respondent to be released on or after 24 August 2010 upon entering into a recognisance of $1,000 to be of good behaviour for the remainder of the term of the sentence. 4. Order that the respondent’s Dell laptop computer and Bluetooth cable be forfeited pursuant to s 48(2) of the Proceeds of Crimes Act 2002 (Cth).
CATCHWORDS:	CRIMINAL LAW - Crown appeal against sentence - guilty plea - whether sentence manifestly inadequate - whether sentencing judge erred in finding that vow of celibacy imposed on Catholic priests by the Catholic Church was a mitigating factor - whether sentencing judge erred in finding that absence of actual victim created situation of entrapment and whether this was a mitigating factor
LEGISLATION CITED:	Criminal Code 1995 (Cth) Crimes Act 1914 (Cth) Crimes (Appeal and Review Act) 2001 (NSW) Proceeds of Crimes Act 2002 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194 R (Cth) v Poynder [2007] NSWCCA 157 R v Gajjar [2008] VSCA 268 R v Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69 Tector v R [2008] NSWCCA 151; (2008) 186 A Crim R 133 Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310
PARTIES:	The Crown (appellant) Robert McGregor Fuller (respondent)
FILE NUMBER(S):	CCA 2009/185763
COUNSEL:	P McGuire (Crown/appellant) G Walsh (respondent)
SOLICITORS:	Commonwealth Director of Public Prosecutions (appellant) Greg Walsh & Co (respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/185763
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ
LOWER COURT DATE OF DECISION:	24 February 2010

2009/185763

McCLELLAN CJ at CL
HISLOP J
BARR AJ

FRIDAY 22 OCTOBER 2010

R v FULLER, Robert McGregor

Judgment

: The respondent pleaded guilty in the Local Court to an offence contrary to s 474.26(1) of the Criminal Code 1995 (Cth) being that:

“Between about 21 July 2009 and 13 August 2009 at Liverpool, New South Wales, used a carriage service, namely the internet, to transmit a communication to another person believed to be under 16 years of age with the intention of procuring the recipient to engage in sexual activity with himself.”

2 The maximum penalty for the offence is imprisonment for 15 years and/or a fine not exceeding $99,000. The respondent was sentenced to a fixed term of imprisonment of 6 months commencing on 24 February 2010 and ending on 23 August 2010. The sentencing judge allowed the respondent a 25% reduction in his sentence to reflect the utilitarian value of his early plea of guilty.

The facts

3 The respondent is an ordained priest in the Roman Catholic Church. At the time of the offence he was the parish priest at All Saints Roman Catholic Church at Liverpool.

4 The respondent committed the offence when he engaged in online communications over the internet utilising a program known as Yahoo 7 Messenger. That program enables computer users to communicate with one another in real time. The process is colloquially referred to as chatting. It allows typed text messages, photographic images and live video recorded by a “web camera” to be communicated between users.

5 During the period 21 July 2009 to 13 August 2009, the respondent engaged in 13 online communications with a female person who was using an assumed online identity created by the police. The respondent believed that this fictitious female person was a 13 year-old girl. Each time the respondent communicated with the online identity, a profile photograph of her was displayed which depicted a young girl with the appearance of being 13 years of age.

6 The evidence includes a transcript of the various conversations between the respondent and the assumed identity. Some of the conversations were short, less than 10 minutes, some were of the order of half an hour and others were in excess of an hour. At various times throughout the conversations the respondent commented on the age of the online identity confirming his understanding that she was 13 years old. He also commented favourably on her profile photograph. During the conversations the respondent was told of the online identity’s naivete and sexual inexperience. The respondent initiated topics of conversation of an explicit and sexual nature. He instructed and encouraged the online identity to masturbate herself. On occasions he activated his web camera and transmitted live video images of himself exposing and masturbating his penis.

7 The respondent also introduced into the conversation a proposal that he and the online identity meet. An arrangement was made and the online identity confirmed the clothing she would wear. The respondent suggested to the online identity that when they met he might masturbate her, she would masturbate him and he might perform cunnilingus on her. The respondent indicated to the online identity that he had never dated someone as young as her and described her as his girlfriend. The respondent also indicated that he would give the online identity kissing lessons and during one of the conversations would like to take her to bed for a kiss and cuddle and so that she could rub her pyjamas against his naked legs.

8 Ultimately the respondent arranged to meet the online identity at a location in Parramatta. The police observed him circling the agreed location for approximately 20 minutes before he was arrested. He had in his possession a mobile phone which included details of the proposed meeting on its display screen.

9 The police carried out a search of the respondent’s residence and seized a Dell laptop computer and a Bluetooth cable which were determined to have been used by the respondent when committing the offence. The appellant seeks the forfeiture of these items.

The evidence of the respondent

10 The respondent gave evidence at his sentencing hearing. His counsel accepted on the appeal that the evidence confirmed that when the respondent first initiated contact with the assumed identity, he was aware of her approximate age. There can be no suggestion that it was by accident that he made the contact or that he was misled by the authorities into initiating the communication with the assumed identity.

11 The respondent said that he had in the past used the internet to contact adult women for sexual purposes, some of whom he had subsequently met. He said that on a number of occasions he had engaged in acts of sexually intimacy with these women but it would seem that he had not had penetrative penile sexual intercourse with them. He said that on occasions he had attended prostitutes for the purpose of sexual gratification.

12 The respondent confirmed that the assumed identity had described herself as a 13 year-old female and had “kept indicating that age.” He accepted that he believed that the person with whom he was communicating was a 13 year-old girl who was either pre-pubescent or going through puberty. He accepted that sexual topics of conversation had all been initiated by him and that when the online identity attempted to change the topic of conversation he would turn the conversation back to sexual matters. He accepted that his communications with the online identity were “driven by sexual desire.”

13 The respondent accepted that he had intended to meet the online identity. He had suggested a meeting during their first conversation and agreed that he had pursued that topic on a number of occasions during the period of the offence. He accepted that at the time he knew what he was doing “wasn’t a proper thing to do” and “wasn’t acceptable by society standards.” He accepted that what he was doing “was wrong and probably illegal.” He said that it was for that reason that he had encouraged the online identity to keep their communications secret.

Remarks of the sentencing judge

14 The sentencing judge recounted the relevant facts. He observed that there is “great alarm in the community of [sic] people sexually exploiting young children and it is described as disgusting, repulsive, repugnant.” His Honour observed that the offence was “a very serious matter evidenced by the maximum penalty being 15 years imprisonment.

15 His Honour then observed that in this case there was no actual child victim the respondent having communicated with an assumed identity. His Honour said:

“And indeed in the cases that have been put before me, only one involved an actual child being investigated by the police, the rest were policemen posing as children. This is not necessarily to condemn the behaviour of the Commonwealth and the police. In a sense they are seeking to be I suppose proactive, or I do not like to use that term so much, but they seem to try and forestall anyone with a proclivity to commit the acts of sexual exploitation of children from doing so. And in that regard, as the Crown read out the Act, they are certainly entitled to and it is in the public interest that they do search out for possible people acting in that way.
However, blind Freddy would expect that they would turn up with people like the offender here, who is a priest with a vow of celibacy, who is sexually frustrated after fifty-five years after becoming a priest straight after his HSC he has become a priest, that such an invitation or at least a willingness to continue a conversation with him would end up with the kind of charge and in the kind of conversations that I have just, with some reluctance, read out.”

16 His Honour later commented that “the police sting operation so to speak, worked.”

17 His Honour then discussed the fact that the respondent was a Catholic priest who had taken a vow of celibacy and was expected by the Church to eschew sexual activity. His Honour accepted a submission from the Crown that the respondent had groomed the assumed identity and observed that:

“He knew the child was 13 years of age, or he was told that information, or he says in his evidence that there is a degree of fakery in these things and some people still believe that there are people in Nigeria with bank accounts who want to give you four million dollars and they still answer them. But there are degrees of fakery in that and in that sense he was, so to speak, taking some of these matters as tongue in cheek, but nevertheless the chat logs were commenced or very shortly after they started, with sexual discussions. They were over a period of time and very graphic.”

18 The sentencing judge recognised that the respondent had pleaded guilty at the first available opportunity. He described the circumstances of the respondent as a tragedy and commented upon the temptations provided by the anonymity of the internet. His Honour said that he had given consideration to the matters in s 16A of the Crimes Act 1914 (Cth) and said that he had taken them into account with respect to the seriousness of the offence. He said:

“However, as to the objective seriousness, because in a sense there was no real victim, but a policeman, and I have heard of course, and the Crown concedes, that in those cases where there is no real victim then one has to take that into account. So in my opinion this falls at the lower end of objective seriousness.”

19 His Honour then considered the remarks of Rothman J in R (Cth) v Poynder [2007] NSWCCA 157 and said in relation to the present offence:

“There is no child participating in it at all. In my opinion, this is to the lower end of objective seriousness but some of the actions and speech of the offender are quite serious.”

20 His Honour concluded that the offence required a prison sentence but accepted that there was a low chance of recidivism. For this reason his Honour did not set a non-parole period.

The appeal

21 The Crown submitted that the sentence which his Honour imposed was manifestly inadequate. In support of that ground it was submitted that the sentence failed to adequately reflect the criminality of the offending, its nature and the role of the respondent. It was further submitted that his Honour failed to properly take into account the maximum penalty for the offence, resulting in “unjustifiable disparity” between the sentence of the respondent and sentences imposed in comparable matters. The Crown further submitted that the sentence failed to adequately reflect principles of general deterrence. A second ground of appeal alleged that his Honour erred by accepting that the respondent’s vow of celibacy was a mitigating factor. The third ground of appeal alleged that his Honour erred by considering the absence of a child victim and entrapment to be mitigating factors. Finally, it was pleaded that his Honour erred in failing to make an order under s 316 of the Proceeds of Crime Act 2002 (Cth) pursuant to which the Crown sought the confiscation of the respondent’s laptop computer which had been used in the offence.

22 The respondent concedes that the sentencing judge erred in not ordering the forfeiture of the laptop computer and Bluetooth cable and this ground of appeal will be upheld.

23 With respect to the sentence his Honour imposed, I am satisfied that a number of errors have occurred. I shall identify them although it is unnecessary to discuss them in detail.

24 It is important to appreciate that the offence is constituted by the use of a carriage service to transmit a communication to another person with the intention of procuring the recipient to engage in or submit to sexual activity, the recipient being a person whom the sender believes to be under 16 years of age. By reason of s 474.28(8) the offence will be committed even if it is impossible for the relevant sexual activity to take place. Furthermore, and of particular significance is subs 9 which provides that it “does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person.”

25 The internet has produced many benefits for the community but has also brought some problems. One of those problems is addressed by s 474.26 of the Commonwealth Criminal Code. The offence is made possible because the internet provides access to communicate with others anonymously. Tragically, experience has shown that it is not uncommon for immature persons, particularly females, to explore the internet and accept communications from adults who are seeking sexual encounters with children. Because a child can access and navigate the internet without the supervision of a responsible adult, the opportunity for a sexual predator to identify a potential victim is significant. If communication is made, the harm to the young person may be considerable, even if sexual activity does not ultimately occur. Of course, the potential for harm will be greater if sexual activity does take place.

26 It is for these reasons that the legislature has made it an offence to use the internet to procure a young person to engage in or submit to sexual activity. It is also apparent that the detection of the offence may be difficult. For this reason the legislature has determined that the law enforcement authorities should be empowered to identify persons who are seeking to communicate in the manner prohibited by the section by creating fictitious identities.

27 In the present case, unlike some others, the respondent communicated with only one person whose identity had been created by the law enforcement authorities. However, there were a number of exchanges which occurred on a number of occasions, some of which extended over a lengthy period of time. The respondent engaged in sexual activity and transmitted images of himself masturbating to the fictitious person. He both encouraged and instructed the fictitious person to masturbate herself. Ultimately he made arrangements to meet the fictitious person for the purpose of engaging in sexual activity.

28 During the course of the sentencing hearing his Honour commented that the insistence by the Roman Catholic Church of a vow of chastity by its priests was “a cruel requirement” which resulted in there being “no avenue for his normal sexual experience because he’s a priest.” His Honour further commented that “I think the celibacy which is imposed on people – I can’t understand why it is, because it suppresses normal human instincts.” His Honour said “it’s archaic” and “cruel, its cruel.”

29 These observations were unnecessary and inappropriate. His Honour’s remarks were as inappropriate as a judge remarking on a couple living together or having a child when not married. A judge should confine his or her remarks to matters relevant to the offence which has been committed without either criticising or expressing sympathy for the social attitudes or practices of others.

30 Although his Honour did not repeat these observations in his remarks on sentence, his Honour did say that the respondent “has the added burden of a vow of celibacy” and remarked that the obligations of celibacy would have the consequence that “blind Freddy would expect that they would turn up with people like the offender here.” I am satisfied that the sentiments which his Honour expressed during the sentencing hearing found their way into his reasoning with respect to the appropriate sentence.

31 The evidence established that the respondent had found avenues to release his sexual needs without breaching the law. The fact that he was a priest who had accepted the obligation of celibacy in no way mitigated the seriousness of the offence for which he was convicted. I am satisfied that his Honour erroneously allowed his personal views of the obligations of Roman Catholic priests to erroneously affect the sentencing process.

32 There was evidence that the respondent had used the internet to seek out sexual activity with adult women. This is not an offence. He has also visited prostitutes for the purpose of engaging in sexual activity. Although he may have personal difficulties in reconciling these actions with his vow of celibacy, that is of no concern to this Court. The difficulties which may be experienced by religious persons who accept a vow of celibacy are self evident. However, when those difficulties may result in crimes being committed against young children, the vow of celibacy cannot mitigate the seriousness of the offence. If a priest finds himself unable to refrain from any sexual activity although the Church may have concerns, society will not, provided that the activity is confined to adults. But when the sexual activity involves young children the priest must be dealt with in the same manner as any other offender.

33 I am satisfied from the passage of his Honour’s remarks on sentence which I have extracted at [15] that his Honour allowed his sympathy for the respondent to influence the sentence. This was an error.

34 It was submitted, and the sentencing judge accepted, that the respondent had been entrapped by the authorities. This finding was not open. As the respondent’s counsel properly admitted during the hearing of the appeal, the respondent was aware that when he first initiated communications with the fictitious person that she was under 16 years of age. This was not a case where an adult was deceived into communicating with a young person or engaged in that communication by mistake. The respondent knew what he was doing and continued to communicate with the fictitious young person, ultimately arranging to meet her to engage in sexual activities, notwithstanding her age.

35 The sentencing judge identified the lack of an actual victim as a mitigating factor. Although an offence may be more serious when communication is made with an actual child and harm is done to that child, the primary object of the legislature in creating the offence was to prohibit the use of the internet by persons intent upon communicating with young persons for sexual purposes. Although the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it.

36 Regrettably the offence committed by the respondent is not uncommon. Consequently there are previous decisions from which guidance can be obtained as to the appropriate range of sentence. By providing a maximum penalty of 15 years imprisonment the legislature has made plain the serious nature of the offence. Apart from the need to appropriately punish and deter individual offenders, there is a significant need in the interests of the community to impose a sentence that will, in so far as may be possible, effectively deter other would-be offenders. The offence is one which is difficult to detect and investigate and for this reason, special provision has been made so that offenders can be identified even where there is no actual victim.

37 His Honour makes no provision in the remarks on sentence for principles of general deterrence. I accept that the matter was referred to in the course of the hearing but the inadequacy of the sentence to my mind confirms that his Honour must have overlooked this aspect of the matter when determining the sentence.

38 I accept that, given the circumstances of the respondent, he is unlikely to reoffend. His public disgrace and discipline by the Church will be significant factors which may influence his future conduct. In these circumstances the need for a period of supervised release is diminished. However, there will be benefits from an additional term of his sentence if he knows that any further breach will involve him returning to custody.

39 This Court was referred to a number of previous decisions where offenders have been sentenced for this offence. There are 5 decisions of appeal courts.

40 In Poynder the offender was convicted of 2 counts of using a carriage service to procure a person under 16 years of age for sexual activity. He offered the young person money in return for sex. The sentencing court also had regard to two offences of using a carriage service to menace, harass or cause offence contrary to s 474.17(1) of the Criminal Code placed on a s 16BA schedule. The offender was sentenced to imprisonment for 3 years and released on recognisance after serving 1 year and 3 months. A Crown appeal was dismissed.

41 In Tector v R [2008] NSWCCA 151; (2008) 186 A Crim R 133 the offender was convicted of 3 offences contrary to s 474.26(1) of the Code. The offender had previous convictions relating to sexual misconduct with young children. The court at first instance found that he had been persistent in pursing his victim and had made a monetary offer for her to engage in sexual activity. He was imprisoned for 11 years with a 7 year non-parole period. On appeal to this Court, the sentence was quashed and he was resentenced to a term of 8 years imprisonment with a non-parole period of 5 years.

42 In Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310 the Court of Appeal in Western Australia considered the circumstance where an offender had used electronic communications to procure a person believed to be under 13 years of age for sexual activity. The offence was contrary to s 204B(3)(b)(1) of the Criminal Code Act 1913 (WA) for which the maximum penalty is 10 years imprisonment. He pleaded guilty. The offender was 24 years of age and had communicated via an online chat forum with an undercover police officer. He had encouraged the fictitious person to masturbate and ultimately arranged a meeting at which he was arrested. After a successful appeal he was sentenced to a term of 18 months imprisonment and was made eligible for release to parole after serving 9 months.

43 In R v Gajjar [2008] VSCA 268 the offender was convicted following a plea of guilty to one count contrary to s 474.26(1) of the Criminal Code 1995 (Cth). The offender had used an internet chat room entitled “Family Sex” to communicate with an undercover operative who was posing as a 14 year-old female. The offender initially pretended to be a 20 year-old female but later revealed that he was a male. A meeting was arranged at which the offender was arrested. Notwithstanding that the offence was of limited duration (2 days) with a relatively early plea, the offender was sentenced to a term of imprisonment of 2.5 years to be released to recognisance after serving 8 months.

44 In R v Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69 the offender was convicted of one count contrary to s 474.26(1) of the Criminal Code 1995 (Cth) and one count of possessing child pornography. He engaged in online chats on three occasions over the course of one day with an undercover operative who he believed was a 14 year old girl. He arranged to meet the fictitious person and sent her an email containing 8 adult pornographic images. He arranged a meeting and was arrested. The offender was initially sentenced to a term of imprisonment of 22 months imprisonment but was immediately released on a 4 year good behaviour bond. The Victorian Court of Appeal determined that a wholly suspended sentence was grossly inadequate and that the offender should have been required to serve a term of actual imprisonment. However, because of the principles applicable to Crown appeals the Court said that it was inappropriate to intervene and the appeal was dismissed.

45 As I have previously indicated, in my opinion the offence committed by the respondent was serious. Although it was not aggravated by the existence of an actual victim the legislature has made plain that when the offence is detected through the introduction of a fictitious person, a significant punishment is likely. In my opinion, notwithstanding the respondent’s guilty plea, remorse and good prospects of rehabilitation a more significant sentence was required. That sentence should both punish the respondent and be sufficient to deter others who may be contemplating similar conduct. Furthermore, a period of recognisance, which will operate as a sanction should the respondent be tempted to reoffend, should be imposed.

46 The respondent is to be dealt with following the abolition of the principles of “double jeopardy” on a Crown appeal by s 68A of the Crimes (Appeal and Review) Act 2001 (NSW). A majority of this Court determined in Director of Public Prosecutions vDe La Rosa [2010] NSWCCA 194 that s 68A applies to a Commonwealth offence and although the respondent submitted otherwise, I am satisfied that this Court should follow that decision. The sentence I propose takes that approach.

47 It will be apparent that the sentence originally imposed by the sentencing judge has now expired. In the exercise of this Court’s discretion when resentencing in a Crown appeal, I do not believe that a further period of incarceration is required. However, the overall term should be extended by twelve months both to mark the seriousness of the offence and to provide for a period of supervision for the respondent.

48 The orders I propose are as follows:

1. Crown appeal upheld.
2. The sentence imposed in the District Court is quashed.
3. In relation to the offence contrary to s 474.26(1) of the Criminal Code Act 1995 (Cth) a term of imprisonment of 18 months to date from 24 February 2010 and expire on 23 August 2011, with the respondent to be released on or after 24 August 2010 upon entering into a recognisance of $1,000 to be of good behaviour for the remainder of the term of the sentence.
4. Order that the respondent’s Dell laptop computer and Bluetooth cable be forfeited pursuant to s 48(2) of the Proceeds of Crimes Act 2002 (Cth).

49 HISLOP J: I agree with McClellan CJ at CL.

I agree with McClellan CJ at CL.

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