R v Hartley-Kennett - [2021] ACTSC 88

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hartley-Kennett
Citation:	[2021] ACTSC 88
Hearing Date:	27 April 2021
DecisionDate:	30 April 2021
Before:	Burns J
Decision:	See [36]–[39]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – use carriage service to solicit child abuse material – use carriage service to procure person under 16 years of age to engage in sexual activity – pleas of guilty – where alleged child victim was in fact covert police officer – whether underlying mental health condition contributed to offending behaviour – whether rehabilitation likely to progress in custody – consideration of imposition of consecutive sentences under s 19(5) Crimes Act 1914 (Cth) – consideration of objective of rehabilitation under s 16A(2AAA) Crimes Act 1914 (Cth)
Legislation Cited:	Crimes Act 1914 (Cth) ss 16A, 16A(2AAA), 19(5), 20(1)(b) Criminal Code Act 1995 (Cth) ss 474.22, 474.26(1)
Parties:	The Queen (Crown) Brett Hartley-Kennett (Offender)
Representation:	Counsel D Bloomfield (Crown) S Whybrow (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Kamy Saeedi Law (Offender)
File Number:	SCC 23 of 2021

BURNS J:

Brett Hartley-Kennett, on 4 February this year, you entered pleas of guilty in the ACT Magistrates Court to one offence of using a carriage service to solicit child abuse material, contrary to s 474.22 of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code) (CC 8867/2020), and one offence of using a carriage service to procure a person under 16 years of age to engage in sexual activity

(CC 12491/2020), contrary to s 474.26(1) of the Commonwealth Criminal Code. Each of these offences carries a maximum penalty of 15 years' imprisonment.

You appeared before this Court on 27 April 2021 and adhered to your pleas of guilty. Evidence was placed before me on that day, and I heard submissions from your counsel and from the Crown. Now it is my responsibility to sentence you for these offences.

A comprehensive agreed Statement of Facts was tendered at the sentence hearing and I will not recite the facts in full. It is sufficient to note that the evidence establishes that between 16 July 2020 and 22 July 2020, you sent communications via Snapchat to an online covert person using the pseudonym “Amy”. Amy purported to be a

14 year old girl. You sent those communications with the intention of procuring Amy to engage in sexual activity. This is the basis of the charge of using a carriage service to procure a person under the age of 16 years to engage in sexual activity

(CC 12491/2020).

The evidence also establishes that you solicited child abuse material from Amy by asking her to send naked pictures of herself to you on 16 July 2020 and 22 July 2020. This is the basis of the charge of using a carriage service to solicit child abuse material (CC 8867/2020).

Objective seriousness

In assessing the objective seriousness of the offence of using a carriage service to procure a person under 16 years…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hartley-Kennett

Details

AGLC: R v Hartley-Kennett [2021] ACTSC 88
Case: [2021] ACTSC 88
Decision Date

CaseChat Overview and Summary

In the case of R v Hartley-Kennett, Brett Hartley-Kennett was sentenced in the Supreme Court of the Australian Capital Territory. Hartley-Kennett had pleaded guilty to two serious offences: using a carriage service to solicit child abuse material and using a carriage service to procure a person under 16 years of age to engage in sexual activity. Each offence carries a maximum penalty of 15 years' imprisonment. The court heard evidence and submissions from both the Crown and Hartley-Kennett's counsel. The key legal issues before the court were the objective seriousness of the offences, Hartley-Kennett's personal circumstances, and the appropriate sentence considering both punitive and rehabilitative objectives.

The court assessed the objective seriousness of the offences by considering factors such as the age of the victim, the age differential between the offender and the victim, and the nature of the communications sent. The court found the offences to be very serious due to the significant age difference and the explicit intent to engage in sexual activity with a minor. The court also considered Hartley-Kennett's personal circumstances, including his intellectual disability, history of mental health issues, and lack of previous criminal convictions. Despite these factors, the court concluded that his disability did not contribute to his offending behaviour but would make incarceration particularly burdensome for him.

In determining the sentence, the court balanced the need for deterrence and the rehabilitation of Hartley-Kennett. It considered the provisions of the Crimes Act 1914 (Cth) regarding the severity of sentences and the presumption of consecutive sentences. However, the court decided that imposing entirely consecutive sentences would result in an aggregate sentence greater than that required to reflect Hartley-Kennett's overall criminality. The court also noted the importance of allowing sufficient time for Hartley-Kennett to undertake a rehabilitation program, as required by s 16A(2AAA) of the Crimes Act. After weighing all relevant factors, the court imposed a sentence of six months' imprisonment for the offence of soliciting child abuse material and 10 months' imprisonment for the offence of procuring a person under 16 years of age to engage in sexual activity, with the sentences to be served consecutively for the first three months and then concurrently.

The court ordered that Hartley-Kennett serve six months in full-time imprisonment starting on 9 April 2021, and the remaining 10 months to be served concurrently with the first sentence for a period of three months, commencing on 9 July 2021. The balance of the sentence is suspended for two years, subject to conditions including supervision, participation in sex offender programs, and restrictions on travel. The court also directed that Hartley-Kennett be treated as a Prisoner at Risk in custody until a full psychological assessment is completed.

Orders