R v JF

[2017] NSWCCA 217

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v JF [2017] NSWCCA 217

Hearing dates:

28 April 2017

Decision date:

06 September 2017

Before:

Hoeben CJ at CL at [1]
Fullerton J at [2]
Hamill J at [154]

Decision:

1. Crown appeal allowed.

 

2. Confirm the sentence imposed for the offence under s 474 of the Criminal Code Act (Cth) (being charge sequence 4).

 

3. Quash the aggregate sentence imposed by Toner DCJ on 30 November 2016 for the offences under the Crimes Act (NSW) (being charge sequences 1 (+ Form 1), 2, 31, 32, 5, 8, 33, 34, 11, 13, 14, 17, 22, 24, 26, 35, 36, 37, 38, 3).

 4. In lieu thereof, the respondent is sentenced to an aggregate term of imprisonment of 12 years with a non-parole period of 7 years commencing on 6 February 2016 and expiring on 5 February 2023 with a balance of term of 5 years expiring on 5 February 2028.

Catchwords:

CRIMINAL LAW – Crown appeal against sentence –thirteen offences laid under ss 66EB(2), 66C(3), 66C(1), 61N(1), 91D(1)(a) Crimes Act (NSW), s 474.27A(1) Criminal Code Act (Cth) – thirteen complainants aged 14 to 16 – manifest inadequacy of sentence – failure to assess objective seriousness – prospects of rehabilitation erroneously assessed – failure to apply totality principle

Legislation Cited:

Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth)

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CMB v Attorney General for New South Wales [2015] HCA 9
Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Doe v R [2013] NSWCCA 248
Gifford v R [2016] NSWCCA 302
JM v R [2014] NSWCCA 297
Jolly v R [2013] NSWCCA 76
Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
Mulato v R [2006] NSWCCA 282
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v Asplund; Asplund v R [2010] NSWCCA 316
R v Cortese [2013] NSWCCA 148
R v Crumpton [2016] NSWCCA 261
R v Fuller [2010] NSWCCA 192
R v Harris [2015] NSWCCA 81
R v Hemsley [2004] NSWCCA 228
R v King [2009] NSWCCA 117
R v MAK; R v MSK; [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Nahlous [2013] NSWCCA 90
R v Pogson; R v Lapham; R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225
R (Cth) v Poynder [2007] NSWCCA 157
Tector v R [2008] NSWCCA 151
ZA v R [2017] NSWCCA 132

Category:

Principal judgment

Parties:

The Crown (Applicant)
JF (Respondent)

Representation:

Counsel:
S Dowling SC (Crown)
T Gartelmann SC (Respondent)

  Solicitors:
Solicitor for Public Prosecutions (Crown)

File Number(s):

2013/356453; 2014/167889

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

30 November 2016

Before:

Toner DCJ

File Number(s):

2013/356453; 2014/167889

Judgment

1. HOEBEN CJ at CL: I agree with Fullerton J and the orders which she proposes.

2. FULLERTON J: This is a Crown appeal brought by the Director of Public Prosecutions pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed upon the respondent by Toner DCJ on 30 November 2016.

3. The notice of appeal was signed on behalf of the Director of Public Prosecutions on 10 January 2017 and served on the respondent on 11 January 2017.

The proceedings on sentence

4. On 30 June 2015 the respondent entered pleas of guilty in the Local Court to 21 sexual offences, 20 offences laid under the Crimes Act 1900 (NSW) and one under the Criminal Code Act 1995 (Cth). The offences involved thirteen male complainants aged between 13 and 15. The offending extended over two years between 2012 and 2014.

5. The offences are grouped as follows:

1. Thirteen offences (involving each of the thirteen complainants) of procuring a person between the age of 14 and 16 for unlawful sexual activity contrary to s 66EB(2) of the Crimes Act. This offence attracts a maximum penalty of imprisonment of 15 years when the child is under the age of 14 years at the time of the offence and, in any other case, a sentence of 12 years.

The indicative sentences for these offences ranged from 2 years, to 3 years and 6 months.

2. Three offences of sexual intercourse with a person between of the age of 14 to 16 years contrary to s 66C(3) of the Crimes Act involving three of the thirteen complainants. This offence carries a maximum penalty of imprisonment of 10 years.

A sentence of 4 years was indicated.

3. One offence of sexual intercourse with a person between the age of 10 to 14 years contrary to s 66C(1) of the Crimes Act. This offence carries a maximum penalty of imprisonment of 16 years.

A sentence of 4 years and 6 months was indicated.

4. One offence of inciting a person under 16 years to commit an act of indecency contrary to s 61N(1) of the Crimes Act. This offence carries a maximum penalty of imprisonment of 2 years. (Two further offences contrary to s 61N(1) of the Crimes Act were taken into account on a Form 1 in the indicative sentence for an offence against s 66EB(2) involving one of the complainants (TB).)

A sentence of 6 months was indicated.

5. One offence of causing a person under 18 years to participate in an act of child prostitution contrary to s 91D(1)(a) of the Crimes Act. This offence carries a maximum penalty of imprisonment of 10 years.

A sentence of 3 years was indicated.

6. One offence of possessing child abuse material contrary to s 91H(2) of the Crimes Act. This offence carries a maximum penalty of imprisonment of 10 years.

A sentence of 1 year and 6 months was indicated.

7. One offence of using a carriage service to send indecent material to a person under 16 years contrary to s 474.27A(1) of the Criminal Code Act involving the same complainant as in (3) above. This offence carries a maximum penalty of imprisonment for 7 years. Eight further offences under s 474.27A(1) of the Criminal Code Act, involving the same complainant, were also taken into account in accordance with a s 16BA Form under the Crimes Act 1914 (Cth) in the sentence imposed for this offence. This sentence is not the subject of appeal.

6. No standard non-parole period attaches to any of the Crimes Act offences.

7. For the twenty offences comprised in categories (1)-(6) above, an aggregate sentence of 7 years and 6 months imprisonment was imposed with a non-parole period of 3 years and 3 months to commence on 6 February 2016. The aggregate sentence was partially accumulated on the sentence for the Commonwealth offence resulting in a total effective sentence of imprisonment of 8 years.

8. After a finding of special circumstances, a non-parole period of 3 years and 9 months and a balance of term of 4 years and 3 months was imposed.

9. The following table sets out a tabulated form of the sentences indicated by the sentencing judge:

Victim	Sequence	Section	Indicative Sentence	Maximum Sentence
OD	1 + Form 1	66EB(2)	3 years and 6 months	15 years
2	61N(1)	6 months	2 years
10 TB	31	66EB(2)	3 years	12
	32	66C(3)	4 years	10
MC	5	66EB(2)	2 years	15
EW	8	91D(1)(a)	3 years	10
	33	66EB(2)	2 years	12
	34	66C(3)	4 years	10
DC	11	66EB(2)	3 years	15
BP	13	66EB(2)	3 years	15
CCD	14	66EB(2)	2 years	15
TOC	17	66EB(2)	2 years	15
LDB	22	66EB(2)	3 years	12
ADC	24	66EB(2)	3 years	15
KR	26	66EB(2)	2 years	15
EM	35	66EB(2)	2 years	12
	36	66C(3)	4 years	10
JG	37	66EB(2)	3 years	15
	38	66C(1)	4 years and 6 months	16
Rolled up	3	91H(2)	1 year and 6 months	10

The Crown appeal

10. The Crown’s primary contention is that the aggregate sentence is manifestly inadequate being “unreasonable and plainly unjust”.

11. Although the conclusion that the sentence is manifestly inadequate does not depend upon identifying specific error in the reasoning of the sentencing judge (see Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]), the Crown identified five sentencing errors which are said to have contributed to the imposition of a manifestly inadequate aggregate sentence in this case. By electing to prosecute the appeal in that way, it is for the Crown to demonstrate that what are said to be errors of fact or principle have likely contributed to a manifestly inadequate aggregate sentence not that the errors, if established, of themselves obligate this Court to re-sentence in accordance with the approach in Kentwell v R (2014) 252 CLR 601; [2014] HCA 37.

12. The errors identified by the Crown as likely to have contributed to a manifestly inadequate sentence are as follows:

1. The sentencing judge’s failure to properly assess the objective seriousness of the offending;

2. The sentencing judge’s failure to impose an aggregate sentence that reflected the objective seriousness of the offending;

3. The sentencing judge fixed an erroneously lenient aggregate non-parole period;

4. The sentencing judge’s erroneous assessment of the respondent’s prospects of rehabilitation; and

5. The sentencing judge’s failure to properly apply totality principles.

Facts for sentencing purposes

13. The agreed facts were reproduced in the sentencing judge’s reasons. The facts relating to the offences involving each of the thirteen complainants were extracted and set out seriatim in paragraphs 1 to 175 of the sentencing reasons.

14. In order to consider the sentencing errors said by the Crown to have contributed to an inadequate aggregate sentence, it will be necessary to refer specifically to some of the offending conduct involving some of the thirteen complainants, in particular the four complainants the respondent met after procuring them for sexual activity online, being those with whom he had sexual intercourse (TB, EW, EM and JG). It is not necessary, however, to reproduce the complex of facts underpinning the entire course of the respondent’s offending conduct against all thirteen complainants. In many respects his modus operandi in making and maintaining contact with the complainants was essentially the same.

The facts

15. On 26 November 2013 the respondent was arrested and charged with procuring a child under 14 years for unlawful sexual activity contrary to s 66EB(2) of the Crimes Act and inciting a person under 16 years to commit an act of indecency contrary to s 61N(1). The complainant, OD, was aged 12.

16. A mobile phone in the respondent’s possession at the time of his arrest was seized. Police executed a search warrant at his home from which a number of electronic devices were seized. All devices were forensically analysed by police and an extraction report generated. Data recovered from the devices was categorised according to chat logs, MMS text and SMS text.

17. The extraction report revealed a pattern of sexual offending against multiple male child victims over a two year period. A large amount of sexually explicit communication passing between the respondent and the complainants was recovered, including, in some exchanges with some complainants, images of the respondent’s genitals. Child abuse material was also recovered, predominantly photographs of the genitals of male children, including of the complainants.

18. On 4 June 2014 the respondent voluntarily presented himself to police at Chatswood Police Station in the company of his solicitor. He was arrested and charged with the balance of the offences listed above at [5] in respect of a further twelve complainants.

19. Over the course of his offending against all complainants the respondent used various fictitious online personae (both male and female) and utilised various social media sites including “Facebook”, “Kik”, and “Snapchat”, as well as “Skype”, SMS text and MMS text to initiate and maintain contact with the complainants. The respondent knew (or gauged) the age range of the children with whom he was communicating either from their social media profiles or, in some cases, because of photographs of them either at school or in their school uniforms uploaded to the social media platforms.

20. The respondent’s use of fictitious female online personae was designed to attract and then procure the male children for sexual activity by holding himself out to be an attractive female teenager who was desirous of sexual contact. The communication would typically be initiated by the respondent sending an unsolicited “friend request” via Facebook.

21. By representing to the complainant with whom he was communicating that “Ellen” or “Emma” was aged between 16 and 17 and that they either shared mutual friends or attended a nearby school, the respondent induced the complainant to reveal his age and the school he attended. Thereafter, on the pretext of being female, the respondent quickly sexualised his communication with that complainant in many instances representing that “Ellen” or “Emma” wanted to engage in sexual activity of some kind with them. By this subterfuge the respondent encouraged the complainant to send sexually explicit images of their genitalia. On other occasions, whilst utilising the fictitious female personae, the respondent engaged with the complainants on Skype and suggested that they activate their webcam whilst making an excuse for not being able to activate his webcam. The respondent would then use highly sexualised and graphic language to propose that “Ellen” or “Emma” was willing to engage in sexual acts of varying kinds in order to entice the complainant to masturbate in front of the camera naked.

22. On other occasions the respondent would introduce “Josh” or “John” (a fictitious male represented to be a Canadian exchange student aged 17) as a male friend of “Ellen” or “Emma” to enquire whether the complainant was “bi curious”, sometimes making any promised sexual activity with “Emma” or “Ellen” conditional on the complainant engaging sexually with her male friend.

23. If the complainant accepted some form of contact from “Josh” or “John”, the respondent would then commence a similar grooming process to the one he used when representing himself as “Ellen” or “Emma”, that is, by engaging in sexualised conversation and requesting sexually explicit images. In a number of instances the respondent requested images of the complainant’s erect penis after which he would send an image of his erect penis which he represented was from “Josh” or “John”.

24. The respondent induced one complainant (EM, aged 15) to agree to engage in fellatio and to meet with him on the street where the complainant lived. This meeting was the culmination of a large number of online conversations where “Emma” repeatedly offered to have sex with EM if he would first have sex with her friend “Josh” or “John”. These conversations eventually culminated in EM making direct contact with the respondent who he believed was a 17 year old male living in a neighbouring suburb. In the online communication that followed, the respondent sought full body photographs of the complainant with his penis erect on the pretext that this would facilitate a meeting with “Emma” for sex. This communication extended from late 2012 until the meeting in March 2013.

25. As an example of one of the conversations, on 28 February 2013 the respondent sent the following text messages to EM: “Hey man so wanna meet up?”; “What you want?”; “Gobbies and I can swallow?”; “Nah but I proffer giving blowing handi bit Boring no?”; “When we meet up wanna come to my house and just stay here? I’ll just pick u up”; “I wanna deep throat ur Cock and tongue then tip of ur Cock n suck ur balls one by one”; “Can I give u anal”.

26. On the same day, the respondent sent a colour photograph of his face to the complainant EM. In response, the complainant sent two colour photographs of himself to the respondent. The respondent also sent an image of his hand holding his erect penis. The following day the respondent sent another image of his hand holding his semi-erect penis.

27. On 1 March 2013, the complainant EM sent the respondent his address. The respondent asked if he could give him anal sex and to ask a friend to join them in “a threesome”.

28. In the late evening of 1 March 2013, the respondent drove to the address he had been given and parked his car on the street, near the complainant’s home. The respondent text messaged, “Ok come out”. The complainant got into the respondent’s car. The respondent then drove the complainant a block away from his home and performed fellatio on him in the front seat of the car to ejaculation. The complainant then performed fellatio on the respondent to ejaculation.

29. The respondent later text messaged the complainant: “U ok?” and “Ur Dick tasted good”. He continued to text message the complainant asking for a second meeting, saying that he wanted to do “it” on a bed and that he wanted to swallow. The complainant did not reply to the majority of these messages with all contact ceasing on 11 March 2013.

30. In another instance, the respondent gave the complainant (TB, aged 14) his phone number representing that it was “Emma’s” phone number. By text messaging he then persisted in using “Emma” to ask the complainant about his sexuality and whether he would meet with her friend “John” for sex. This conversation extended over a two-month period from about April 2013, two or three times a week. At a later point “John” messaged the complainant, claiming that he was using “Emma’s” account and said: “We could have some fun with our dicks. Can I suck you off?”.

31. In October 2013, TB met the respondent (who he had arranged to meet as “Josh”) in a car a short distance from his home in a carpark. The respondent represented that he was 17 and went to school.

32. Upon meeting the complainant, the respondent invited him into the rear seat of his car and commenced kissing him. He then placed his hand underneath the complainant’s shorts and underwear, touching his penis. The respondent commenced to masturbate the complainant. With his hand still around the complainant’s erect penis, the respondent leant down and inserted the complainant’s penis into his mouth and performed fellatio for between five and ten minutes. At this point, the complainant pulled the respondent’s head backwards and off his penis saying: “I’m sorry, I don’t feel comfortable with this … I have basketball training, I have to go”. The complainant left the car and returned home.

33. The respondent gave another complainant (EW, aged 15) $180 in exchange for fellatio in the complainant’s home. This meeting was also the culmination of a lurid course of communication by text messaging over many months. The complainant was born deaf and had a cochlear implant and attended a behavioural school. After the respondent was invited inside EW’s home he removed the complainant’s shorts and began performing fellatio on him. After approximately three minutes the complainant (who was looking at pornography on his phone) became uncomfortable and said: “See you later, it’s over now”. The respondent said it was not long enough and asked for half of his money back. The complainant did not return the money. The respondent left the premises. The respondent later messaged the complainant, saying: “I’ll do more than that. Just be fair otherwise just give the money back” and “send vid today”. He continued to pressure the complainant to engage in oral sex with him, including sending him a video of himself naked and with an erect penis, and offering him additional money to engage in sexual activity with him. All contact ceased in November 2013.

34. During March 2013, the respondent sent another complainant (JG, aged 13) a Facebook friend request using the persona “Emma”. The complainant noticed that he and “Emma” shared ten mutual friends. The complainant observed “Emma’s” profile picture to be of a 16 or 17 year old female. Believing “Emma” was a mutual friend, the complainant accepted the request and commenced communication with “Emma”.

15. The conversation became sexualised after the respondent made comments about “Emma’s” breasts. After initial contact, “Emma” continued communicating with the complainant throughout the following weeks, making promises to show her breasts to the complainant. During this time, “Emma” asked the complainant on a number of occasions for his mobile phone number. The complainant refused.

16. After about two weeks of online communication, “Emma” promised to show the complainant her vagina on the condition that the complainant take a number of photographs of himself. “Emma’s” requests started with photographs of the complainant’s face and progressed to asking him to send a naked photograph. The complainant sent a photograph of his face and a full naked photograph to “Emma” via Facebook. No images of “Emma” were sent to the complainant.

17. “Emma” then encouraged the complainant to create a Skype account. The complainant complied. He was initially suspicious as “Emma’s” profile name contained the name “Josh”. “Emma” informed the complainant that she was using a friend’s account.

18. The complainant contacted “Emma” a number of times via Skype but on each occasion he was unable to see “Emma” as the receiver’s side of the video was disabled. The complainant terminated these calls.

19. In late March or early April 2013, “Emma” messaged the complainant via Facebook and asked if he would be willing to meet her male friend, “Josh”. “Emma” told the complainant that “Josh” was unsure if he was homosexual or bisexual and that a meeting with the complainant would help him. “Emma” promised sex with the complainant after this meeting.

20. On 15 April 2013 “Josh” sent a text message to the complainant: “I’ll give u really good head”. The respondent sent the complainant photographs of his face, stomach and groin and a photograph of himself wearing boxer shorts. “Josh” then sent a text message saying: “Yea not full hard. U wanna see it”.

21. A few days later, the respondent sent a photograph of his hand holding his erect penis. He then sent a text message saying: “Haha. Wanna suck it?”.

22. The following day “Josh” and the complainant made plans to meet later that evening near the complainant’s home. The respondent called the complainant when he was nearby. The complainant then left his home and saw the respondent arrive in his car. The complainant thought the respondent was aged 17 to 18 years old.

23. The complainant and the respondent moved a short distance away to a secluded area where the respondent kissed the complainant for about a minute while lying on the ground. He then moved his head towards the complainant’s groin while removing the complainant’s pants and underwear, and began touching the complainant’s penis.

24. After a short time, the respondent performed fellatio on the complainant for about five minutes when the complainant ejaculated. The respondent said: “Thanks, are you ok?”. The complainant replied: “Yeah, I’m fine”. The complainant walked the short distance home.

25. After the assault, the respondent sent the following text messages: “I know but ur mum came out I had no choice. And I know I was shit. U can’t cummed yet can u”; “U can’t if u don’t know. Have u ever cummed before?”; “White stuff out of ur cock?”; “Was I bad at bjs”; “Can we meet again in the future but it a while from now when ur older?”.

26. About a week after the assault, the respondent made contact with the complainant via Facebook using “Emma’s” persona. “Emma” told the complainant that he had not sexually satisfied “Josh” and that he wanted to meet again. “Emma” told the complainant that she would uphold her part of the agreement and send the complainant nude photographs of herself if he agreed to meet “Josh” a second time. The complainant refused.

27. At one point, “Emma” informed the complainant that “Josh” was planning to kill himself. All communication between the complainant and the respondent ceased on 12 May 2013.

28. The respondent persisted in communicating or attempting to communicate with many of the complainants after either meeting with them as “John” or “Josh” or after attempting to meet with them using one of these personae. This occurred both by the respondent using the same female persona that he had used to initially engage the complainant in communication or by using a different female persona to engage the complainant in a new line of communication.

29. In instances where the respondent used a female persona to initiate contact, he typically persisted in pressuring the complainant both to continue sending sexually explicit material either by video messaging or by Skype and to meet with her male friend. In some instances this involved threats that “Emma” or “Ellen’s” male friend would visit the complainant’s home if he did not comply with the request to send sexually explicit photographs or sexually explicit videos. In at least three instances the respondent telephoned the complainant after sending a series of messages after trying to persuade the complainant to engage sexually with him.

30. In another instance the respondent offered the complainant KR money to engage in sexual activity despite the complainant telling him to stop contacting him. The respondent continued to contact the complainant offering him $500 if he and the friend he was with would masturbate him, promising that he just wanted “a hand-job then Ellen will fuck u”. The complainant eventually proposed a meeting but did not attend.

31. On one occasion a friend of one of the complainants agreed to give his mobile number to the respondent in an effort to relieve his friend of some of the pressure that the respondent was placing on him. The respondent then encouraged that young male to send phone numbers of other children he knew who might engage in sexual activity with him.

32. The respondent’s offending was revealed when the parents of one of the complainants (OD) learnt of their son’s predicament. This occurred after the respondent drove to where the complainant lived, where he waited outside with his car engine idling, making threats to come into his house if the complainant did not get one of his school friends to communicate with him. On the advice of his friends, the complainant told his parents of the situation and they contacted the police.

Balance of the evidence in the Crown case on sentence

53. In addition to the agreed facts, a pre-sentence report of Erin Wroblewicz of 28 September 2016 was tendered by the Crown. It attached case note reports from the Department of Corrective Services. A psychiatric report of Dr Gordon Elliott of 23 September 2016 was also tendered by the Crown.

Evidence in the respondent’s case on sentence

54. The respondent tendered a compendium of documents which included a letter from his sister of 7 November 2014; a report of Pamela Pye and Michelle Campigotto of Family and Children’s Services of 18 November 2014; a Plan for Services and Closing Summary dated 8 May 2002 by Pathways for Children and Youth; a psychological report of John Bartram of 25 August 2014; and a discharge referral from Manly Hospital dated 6 August 2015. A psychiatric report of Dr Andrew Ellis of 27 November 2016 was also tendered.

The respondent’s subjective circumstances

55. The respondent was born in Canada in 1987. At the time of sentence he was 28 years old. He had no criminal history.

56. The respondent had a difficult childhood. He was one of four children. His father had an alcohol abuse disorder and left the family home when the respondent was aged 12. His mother had mental health issues and was unable to maintain paid work. The respondent’s sister referred to the negative effect her mother’s illness had on her brother as a young boy in that he became very destructive. According to records held by the Family and Children’s Services (Canada), the respondent was taken into foster care when he was 13 because of the neglect within the family home.

57. Whilst under the foster care regime in Canada the respondent was reported to have engaged in sexually inappropriate conduct with the 5 year old son of one of his foster parents on at least two occasions. He was subsequently removed from their care.

58. In 2003, when aged 15, Family and Children’s Services were informed that the respondent had been accessing sexual websites masquerading as a teenage girl and asking men to send naked pictures to him. An employee of Family and Children’s Services spoke to the respondent about this behaviour. He reportedly did not appear to understand the seriousness of his actions.

59. These reported incidences of sexual misconduct during the respondent’s youth were consonant with the history he provided to Dr Elliott and Dr Ellis.

60. The respondent informed Dr Elliott that his sexual offending started when he adopted an alias to engage in online sexual activity when he was aged 15. He told Dr Ellis that this behaviour became routine up until his arrest in 2013.

61. Despite his unsettled childhood, the respondent completed high school and obtained some post-school qualifications. In 2008 he moved to Australia where he married and had a child. That relationship ceased in 2012 when his wife became aware of his online criminal activities. He has not had contact with his daughter since his arrest.

62. Throughout the period of his offending the respondent worked as a retail manager supplementing his income with work as a commercial cleaner. After his marriage failed he lived in shared accommodation.

Mental state examinations

Mr Bartram

63. Mr John Bartram, psychologist, counselled the respondent on 20 occasions between 21 December 2013 and 22 July 2014, that is, in the period after his arrest and release to bail and before he forfeited his bail in August 2015 after he was evicted from his shared accommodation due to non-payment of rent whilst he was a patient in a psychiatric unit at Manly Hospital after he self-presented with suicidal thoughts. Mr Bartram noted the respondent had been prescribed antidepressant and antipsychotic medication in the past. I note that he continues to be maintained on this medication in custody.

64. In his report, Mr Bartram described the respondent as follows:

[The respondent] is a socially isolated individual who has few, if any, interpersonal relationships that could be described as close and warm. His family of origin reside in Canada. His parents separated when he was thirteen years old due to his mother suffering from an undiagnosed psychiatric condition believed to be schizophrenia. Unfortunately for the family, his mother repeatedly refused treatment resulting in the Canadian Social Services placing [the respondent] and his siblings into foster care. As a consequence of having being emotionally, spiritually and morally neglected during early childhood, [the respondent] did not learn from his primary carers how to regulate intense emotional states.

Dr Elliott

65. Dr Gordon Elliott, consultant psychiatrist, assessed the respondent on 20 September 2016 at the request of the sentencing judge. Dr Elliott was provided with the agreed facts, the respondent’s criminal record and medical records from Justice Health and Forensic Mental Health Network.

66. Dr Elliott reported that the offender denied a significant medical history, although he had taken antidepressant medication and had self-presented to psychiatric facilities on two previous occasions due to suicidal ideation and on one occasion following an overdose on paracetamol. The respondent reported a history of cannabis use which he believed assisted with his anxiety.

67. In relation to his sexual proclivities, the respondent admitted that he had been sexually interested in adolescent males, particularly around the ages of the complainants of his index offending, for many years. He confirmed that he remained sexually interested in adolescent males but denied more extreme paraphilic behaviour.

68. He recognised that his sexual interest in young males was problematic. He claimed that he was driven to offend by the need for instant sexual gratification. He said:

I was looking for intimacy with young people. I did whatever I could possible to make that happen. I put all my troubles onto these young people. … I was just after instant gratification. … [The offending] became a bit like a fantasy, not real because it was all through a computer.

69. The respondent admitted to Dr Elliott that he knew, at the time of his contact offences, that his behaviour was wrong.

70. The respondent told Dr Elliott that he hoped that he would have the opportunity to complete sexual offender treatment programs in custody and thereafter in the community.

71. Dr Elliott diagnosed the respondent with paedophilia, with his dominant sexual attraction being to adolescent males around the age of 14 years, and a mildly severe cannabis use disorder. In relation to the offender’s risk of reoffending he concluded:

[The respondent’s] offending behaviour gives cause for concern with regards to his risk for recidivist offending. Taking into account the pattern of his offending, including both contact and non-contact sex offences with unrelated stranger victims, all of whom were male, suggests he would fall into a group of offenders considered a moderate risk of re-offending…

72. In light of the conclusions concerning the respondent’s moderate risk of reoffending and his stated interest in receiving appropriate treatment for his paedophilia, Dr Elliott considered that the respondent was a good candidate for sexual offender treatment programs offered by the Department of Corrective Services, such as the EQUIPS program or the CUBIT program. He added that the respondent would benefit from further assessment by a forensic psychiatrist with specialist expertise in treating child sex offenders. In relation to the suitability of anti-libidinal treatment Dr Elliott stated:

… Although [the respondent] does not describe a hyper-libidinous state, if he continues to be aroused by sexual fantasies about adolescent males, then he warrants consideration for anti-libidinal treatment. He is able to access such an assessment in custody through the Justice Health and Forensic Mental Health Network…

Dr Ellis

73. Dr Andrew Ellis, forensic psychiatrist, was retained by the respondent’s solicitors. He prepared his report after an interview with the respondent on 15 November 2016. Dr Ellis had Dr Elliott’s report, the agreed facts and the pre-sentence report of Ms Wroblewicz.

74. In relation to the respondent’s psychosexual history, Dr Ellis also reported that the respondent admitted his sexual interest in peri-pubescent and post-pubescent boys. The respondent told Dr Ellis that he is homosexual but that he did not acknowledge his sexual orientation for many years. He expressed a desire to cease altogether the sexual activity and grooming behaviour with peri-pubescent and post-pubescent boys. He reported consensual sexual activity with male inmates. He acknowledged the adverse emotional impact of his offending on the complainants and that he had pressured them into contact with him in circumstances where they were not sexually or emotionally mature enough to engage sexually with him.

75. The respondent expressed a similar attitude to his offending in the pre-sentence report. He accepted that the “victims would feel angry, embarrassed and he thought that he had hurt them emotionally … The [respondent] acknowledged that the community would be outraged by his offending”. The author of the pre-sentence report remained of the view, however, that the respondent appeared to justify his offending behaviour by claiming he could not control himself. She considered that on an actuarial assessment the respondent had a moderate risk of reoffending. A risk assessment prepared by a CSNSW Psychologist assessed the respondent as having a moderate to high range risk of sexual reoffending relative to other male sex offenders.

76. Dr Ellis also diagnosed the respondent with paraphilic disorder and substance abuse disorder relating to his cannabis use. He opined that anti-libidinal medication, as part of a sex offender treatment program, would be appropriate to treat the paraphilic disorder, subject to the respondent having a full physical examination and relevant investigations into his suitability for participation in the pharmacological treatment program. The respondent indicated a preparedness to undertake anti-libidinal treatment together with group or individual psychological treatment.

77. In relation to risk management, Dr Ellis observed that it was not possible to predict whether an individual would reoffend but only to identify risk factors associated with reoffending and to target those factors for treatment and management. He identified the following risk factors as present in the respondent’s case: deviant sexual arousal (diagnosis of paraphilia); substance abuse (cannabis and opioids); relationship dysfunction or absence; mental disorder (depression and anxiety); and poor planning and self-awareness. Historical (unchangeable) factors included: the chronicity of the respondent’s offending; the multiple victims; the psychological coercion used in the offences; and a history of child abuse. Factors which were considered positive included: stable employment; stable accommodation; no evidence of antisocial personality style; election to participate in mental health treatment.

78. To manage the identified risk factors Dr Ellis recommended:

In order for there to be a significant reduction in risk, treatment with antilibidinal medication would be the most effective strategy. This treatment has the most evidence for reduction in risk of repeat sex offending. This should be delivered alongside treatment and monitoring for substance use, psychological programs for sexual offending, treatment of anxiety, depression and personality disorder symptoms and identification of suitable vocational and recreational activities.

The respondent’s evidence

79. The respondent gave evidence at the sentence hearing. He confirmed the accuracy of the information he provided to Dr Elliott, Dr Ellis and Ms Wroblewicz concerning his personal circumstances and background. He said that Dr Ellis had explained to him that the side effects of anti-libidinal treatment would decrease his libido. When asked by his counsel whether Dr Ellis told him the treatment was permanent or reversible, the respondent answered: “I believe he said it was permanent”.

80. He also gave evidence acknowledging that he pressured the complainants into engaging with him by manipulative behaviour of various kinds. He said he had tried to limit his urges for sexual contact with pubescent boys but was unsuccessful. He said he believed that, with help, he could stop the cyclical nature of his offending behaviour having gained an insight into the impact of what he had done because of his arrest and the sentence proceedings. He said he knew what he was doing was wrong but did not realise at the time the extent of its impact on the complainants.

The sentencing judge’s findings on objective seriousness

81. Of the thirteen s 66EB(2) offences of procuring a child under 14 years and 16 years for unlawful sexual activity, the sentencing judge found that offences involving seven complainants (together with the s 91D(1)(a) offence of causing a child under 18 to participate in an act of child prostitution as it involved one of the complainants, EW) were in the middle of the range of relative seriousness. The remaining six s 66EB(2) offences involving the remaining six complainants were evaluated as falling somewhat below the mid-range of objective seriousness.

82. In dealing with the objective seriousness of these offences his Honour said:

Some of the offences could be said to involve planning as an aggravating factor of the offence, I have considered that carefully. The Crown, in useful submissions to me, identified a number of matters particularly a number of the procure cases being those which were sequences 1, 11, 8, 13, 37, 24, 22 and 31 where it could be said that it involved characteristics of planning and persistence which constitute an aggravating feature. I am not at all sure that that is right. True it is that there was a degree of planning involved in all of these offences to a greater or lesser extent but I am not persuaded that they constitute a sufficient body of material to represent an aggravation of the offences charged, particularly those I have identified. There are features of those particular matters which make them somewhat more serious in my view than other procure offences, for the reasons that the Crown identifies, but not such as to represent formal findings of aggravation per se, they are simply more serious renditions of the crime.

It is always important I think to identify where these offences lie in the broad scheme of things and to that effect I reflect upon the maximum penalties that the Parliament fixed in relation to each as I identified those maxima earlier in these reasons. Those sequences that I have nominated in relation to the procure offences I think comfortably fall at about the middle of the range of relative seriousness of those types of crimes. The other procure offences, I am of the view, are somewhat below that. Some of the offences are collateral to others as can be seen from the facts as I have found them. …

83. On the issue of general deterrence he said:

When reflecting upon questions of deterrence it is important to note, as I did during the course of submissions, that the mechanisms that were employed by the accused in this case revolved around utilisation of social networking sites. It is either famous or notorious, I suspect notorious, that young people particularly substantially communicate with each other, using social networking sites and albeit that vulnerability is perhaps a characteristic of all these types of offences, I am mindful in utilising that term within the context of deterrence not to double count in the sense that in relation to the State offences there is a specific statutory provision in relation to vulnerability aggravating an offence. I should emphasise now that my consideration of this topic does not involve that factor but rather a general observation in relation to these types of offences and the vulnerability of those young people who use social networking sites to people who are so minded as was this offender to commit the crimes he has thus in part deterrence in that context is an important consideration.

84. In relation to the four offences contrary to ss 66C(1) and 66C(3), involving sexual intercourse with four complainants, the sentencing judge said:

… I am of the opinion that the most serious of the offences are the sexual intercourse offences, albeit that the maximum penalties for that particular offence are not similar to the maximum penalties fixed for procure for instance. It seems to me that factually the sexual intercourse matters are more serious. I should note that in each instance the sexual intercourse alleged was oral, fellatio, which the Courts have found to be somewhere in the middle of the range of relative seriousness for sexual intercourse as it is defined by the Legislation. Beyond that there does not appear to me to be any aggravating features of these crimes which are either not elemental or inherent in the elements of the offences charged.

The sentencing judge’s findings on the respondent’s subjective case

85. The sentencing judge referred to the remarks of Dr Bartram at [65] herein and the reports of Dr Ellis and Dr Elliott. Based on those reports he concluded the respondent had “at least a moderate risk of recidivism [if] untreated”.

86. In relation to the respondent’s willingness to take anti-libidinal medication and his prospects of rehabilitation, his Honour stated:

The offender has indicated that he is prepared to undertake such a process [a course of anti-libidinal medication] as I understand it, once it is undertaken it is irreversible and the effect of it is largely to reduce his libido and a consequence of his being treated in that way will be to very substantially reduce the prospect of recidivism, thus he would fall from somebody who represents presently untreated a moderate risk of recidivism to somebody who, if I understand it, would constitute a low risk of recidivism. I take the view in determining his prospects of rehabilitation that he will undertake that anti-libidinal course and produce that result and thus represents excellent prospects of rehabilitation…

[Emphasis added.]

87. The sentencing judge found that the respondent’s deprived background, in particular the emotional and social deprivation he suffered as a child, had application in the sentencing process by reducing his moral culpability for the offending (see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37).

88. Although the sentencing judge accepted that the respondent’s psychiatric condition played some part in the commission of the offences, he determined that the need for general and specific deterrence had continued application in the sentencing exercise, in large part because the respondent was aware at all times that his offending was unlawful (cf R v Hemsley [2004] NSWCCA 228 at [34]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]).

89. After taking into account the respondent’s early pleas of guilty and what his Honour found was the respondent’s active attempt to seek treatment for his offending behaviour prior to sentence, and a willingness to continue treatment in a custodial setting and on his release, he accepted that the respondent was contrite and that he accepted responsibility for his offending.

90. A finding of special circumstances was made on the basis that it was the respondent’s first time in custody and he would need ongoing assistance with treatment upon his eventual release.

The Crown appeal

91. I propose to deal first with what the Crown submits is an error in the sentencing judge’s approach to the assessment of the respondent's prospects of rehabilitation as excellent, since it is conceded by Mr Gartelmann, senior counsel for the respondent, that at least one aspect of his Honour’s approach to that question was based upon a factual error.

The sentencing judge’s assessment of the respondent’s prospects of rehabilitation was erroneous

92. The Crown submitted that the sentencing judge’s assessment of the respondent’s prospects of rehabilitation as excellent was predicated on factual findings which were not reasonably open to him, there being no evidence that the effects of anti-libidinal medication were irreversible or that the medication was capable of treating the offender’s sexual disorder such as to render him at a low risk of recidivism.

93. The Crown also submitted that the sentencing judge’s evaluation of the respondent’s prospects of rehabilitation as excellent was inconsistent with the unchallenged evidence that he was at a moderate to high risk of reoffending, and inconsistent with his Honour having apparently accepted that evidence when finding the respondent had at least a moderate risk of recidivism if he did not receive treatment.

94. It was conceded by Mr Gartelmann that there was no evidence in the sentence proceedings that anti-libidinal treatment was irreversible (other than the respondent’s belief that was its effect). It was the agreed position on the appeal that the treatment does not have a permanent effect upon a person's libido. Rather, it reduces the production of testosterone and by blocking the effects of that hormone on target cells in the body it can have the effect of suppressing libido and, in that way, have some efficacy in reducing recidivism in sex offender populations, but only so long as the treatment continues. Further, it was also the agreed position on the hearing of the appeal that the respondent will not be able to commence anti-libidinal treatment (or be medically assessed for that treatment) under the auspices of the Justice Health and Forensic Mental Health Network as that service is no longer offered to inmates. An inmate desirous of commencing treatment is now obliged to find a private practitioner who is willing to visit him in custody and to undertake the assessment and treatment at his own expense.

95. Mr Gartelmann accepted that his Honour’s mistaken belief that anti-libidinal medication was productive of irreversible effects was material to his evaluation of the respondent’s prospects of rehabilitation as excellent.

96. He submitted, however, that treating the effects of anti-libidinal treatment as irreversible and invariably efficacious, coupled with what seemed to be an assumption that the treatment was available as part of a custody based treatment program, was not the only factor material to his Honour’s evaluation of the respondent’s prospects of rehabilitation. In Mr Gartelmann’s submission, there was other evidence which supported a finding that the respondent had at least reasonably good prospects of rehabilitation, including Dr Elliott’s view that he was a good candidate for other sexual offender treatment programs (being group or individual treatment programs) available in a custodial setting; that he was willing to take anti-libidinal treatment on his release; and that he had taken steps to address the issues underlying his offending by seeking counselling from Mr Bartram after his arrest.

97. In short, Mr Gartelmann submitted that despite the sentencing judge’s error in treating anti-libidinal medication as irreversible and his assumption that the respondent had access to that treatment thereby reducing his risk of recidivism, the balance of evidence in the sentencing proceedings warranted a favourable finding as to the respondent’s prospects of rehabilitation and that this Court should make that finding on re-sentence in the event that the Crown appeal succeeded.

98. In addressing the Crown’s further submission that the sentencing judge’s findings as to the respondent’s prospects of reoffending and his prospects of rehabilitation were inconsistent, Mr Gartelmann submitted that an assessment of the risk of reoffending is not determinative of an evaluation of the prospects of rehabilitation. The concepts are discrete. In this regard, he submitted that observations of McClellan CJ at CL and Johnson J in R v Pogson; R v Lapham;R v Martin (2012) 82 NSWLR 60; [2012] NSWCCA 225 at [122] (with whom Price, R A Hulme and Button JJ agreed) are apposite:

[122] Although it is common for judges, when considering the subjective characteristics of an offender, to evaluate the prospects of the person reoffending and to express an opinion as to whether the person is unlikely to reoffend, it could never be said that a person who has once offended would never reoffend. Furthermore, a person who has offended will always be in need of the opportunity to establish themselves as a law abiding and productive member of the community. Rehabilitation is a concept which is broader than merely avoiding reoffending.

Consideration

99. In my view, the conclusion is unavoidable that the sentencing judge’s findings concerning the irreversible and efficacious effects of anti-libidinal treatment were unsupported by the evidence and that this was a factual premise central to finding that the respondent’s prospects of rehabilitation were excellent. That being so, it follows this was a finding not reasonably open to him. I am not persuaded, however, that the sentencing judge’s approach to the assessed risk of the respondent reoffending necessarily admits of the inconsistency of the kind the Crown complains. Since I am satisfied that the Crown appeal should succeed for other reasons, it is unnecessary to express any concluded view about that matter.

100. I would not have concluded from the sentencing judge’s mistaken view concerning the irreversible and efficacious effects of anti-libidinal treatment alone that a manifestly inadequate sentence has resulted. However, for the reasons which follow I am driven to the conclusion that the aggregate sentence is “unreasonable and plainly unjust” because of what I regard as an unacceptable disparity between the aggregate sentence and the criminality comprehended by the respondent’s overall offending. Accordingly, the Crown’s submission that the aggregate sentence reflects a failure to apply totality principles, and that an erroneously lenient non-parole period has been fixed against the aggregate sentence as a result, should be accepted.

The sentencing judge’s failure to properly apply totality principles

101. Mr Gartelmann acknowledged that the non-parole period of 3 years and 3 months set against the aggregate sentence of 7 years and 6 months reflects a substantial degree of leniency, with the minimum period the respondent is required to spend in custody only marginally greater than the sentences indicated for some of the s 66C offences and marginally less than the sentences indicated for some of the s 66BE offences. Mr Gartelmann maintained the submission, however, that the Crown had failed to demonstrate that the aggregate non-parole period is inconsistent with a legitimate exercise of the sentencing discretion in circumstances where his Honour was entitled to give significant weight to the respondent’s subjective case.

102. This Court is not called upon to analyse with mathematical precision the extent of accumulation or concurrence when an aggregate sentence is under challenge as being manifestly inadequate. Neither is it required to scrutinise the indicative sentences for error since they are not amenable to the appeal in themselves. The question whether the sentence in this case is manifestly inadequate is whether the aggregate sentence reflects the total criminality involved in the commission of all offences (see JM v R [2014] NSWCCA 297). I have come to the conclusion that the aggregate sentence of 7 years and 6 months with the non-parole period of 3 years and 3 months is manifestly inadequate in that sense.

103. By providing a maximum penalty of imprisonment of 15 years and 12 years for procuring a child for unlawful sexual activity under s 66EB(2) depending on the age of the child; 16 years and 10 years for having sexual intercourse also depending upon the age of the child; and 10 years respectively for the possession of child abuse material under s 91H(2) and causing a child to participate in an act of prostitution under s 91D(1)(a), the legislature has provided sentencing courts with a yardstick against which the seriousness of sexual offences committed against or involving children are to be treated (see Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]).

104. Unlawful sexual activity is defined for the purpose of the procure offences in s 66EB as any offence under Division 10A, 15 or 15A of the Crimes Act including, in this case, procuring acts of indecency with children in a virtual or cyber world and procuring a child for sexual intercourse in the real world. I accept that where the procure offences culminated in sexual intercourse (as it did with four of the thirteen complainants) the indicative sentences for the s 66BE and s 66C offences involving those complainants had to ensure against the risk of double counting aspects of the objective seriousness in each offence.

105. It would seem that the sentences indicated by the sentencing judge in respect of the grouped offences involving those four complainants does reflect an awareness of the need to avoid double counting, despite the fact that he made no express reference to that risk as a reason for indicating those sentences. However, when regard is had to the fact that in respect of two of the four children procured for sexual intercourse (being EW and JG) additional offences of possession of child abuse material and causing a child to participate in an act of prostitution were involved (offences which are also serious as reflected in the maximum penalties of 10 years), the conclusion is unavoidable that a significantly longer aggregate sentence was called for to achieve a reasonable proportionality between the overall sentence imposed and the objective gravity of the full complement of the respondent’s offending and to meet the sentencing objectives embodied in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (see ZA v R [2017] NSWCCA 132 at [84] citing R v MAK; R v MSK; [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [70]-[71]).

106. I accept that the respondent’s subjective circumstances were worthy of weight in mitigation of sentence. However, despite the sentencing judge making express reference to the need to avoid the respondent’s subjective case overwhelming the sentencing exercise, this was not translated into the sentencing result.

The sentencing judge’s failure to properly assess the objective seriousness of the offending

107. On the hearing of the appeal the Crown pressed the submission that errors in his Honour’s approach to the assessment of the objective seriousness of the procure offences under s 66EB and the sexual intercourse offences under s 66C have also led to the imposition of a manifestly inadequate aggregate sentence. Although I am satisfied that the aggregate sentence is manifestly inadequate for the reasons already expressed, it is necessary to deal with the Crown’s complaint about the assessment of objective seriousness of the s 66EB and s 66C offences, in summary at least.

The Crown’s submission

108. The Crown identified several errors in the sentencing judge’s approach to the assessment of the objective seriousness of the s 66EB offences and the ss 66C(1) and 66C(3) offences.

109. First, the Crown submitted that the classification of the s 66EB offences as either at the middle of the range of objective seriousness or somewhat below the mid-range was not reasonably open in all the circumstances, in particular because no explanation was given for the distinction between the relative seriousness of the two tranches of offences. The Crown contended that the sentencing judge’s assessment of the objective seriousness of the s 66EB(2) offences, both between and within the two groups, failed to account for the different circumstances in which the offending occurred, including: the respondent’s high level of persistence in procuring some of the young males for sexual activity with communication persisting over weeks and months; the different ages of the complainants (with 13 year olds in both groups); and that many offences involved offering money for oral and/or anal sex. The Crown submitted that the range of indicative sentences between 2 years and 3 years and 6 months for these offences does not reflect the range or the extent of the objective gravity of the individual s 66EB offences.

110. The Crown further submitted that comparing the objective seriousness of the s 66C(3) offences with the s 66EB offences was an error in principle (see R v Crumpton [2016] NSWCCA 261 at [40]). Further, assessing the objective seriousness of the s 66C offences according to the type of sexual act involved in their commission was also an error in principle, being contrary to the repeated observations of this Court that the mechanism or type of intercourse was not a defining feature of objective seriousness (see R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [24]; Doe v R [2013] NSWCCA 248 at [48]–[54]; Jolly v R [2013] NSWCCA 76).

111. The Crown submitted that these errors of principle resulted in an erroneous evaluation of the objective seriousness of both the s 66C(1) and s 66C(3) offences.

112. The fourth error identified by the Crown was the sentencing judge’s failure to make any finding at all as to the objective seriousness of the offences contrary to ss 61N(1), 91H(2) and 91D(1)(a) of the Crimes Act.

The respondent’s submissions

113. Mr Gartelmann submitted that the separation of the thirteen s 66EB(2) procure offences into two tranches was apparently responsive to the approach of the Crown on sentence that the seven offences in the first group (sequences 1, 11, 13, 22, 24 ,31 33 and 37) were of a higher level of seriousness relative to the six offences in the second group (sequences 5, 14, 17, 26 and 35). Mr Gartelmann submitted that his Honour apparently accepted the Crown’s submission with the sentences in the first group attracting an indicative sentence of 3 years and those in the second group an indicative sentence of 2 years. (Sequence 1 attracted an indicative sentence of 3 years and 6 months because two offences contrary to s 61N(1) were taken into account on the Form 1.)

114. Mr Gartelmann also submitted that it is not open to the Crown on the appeal to submit that the s 66C(3) offences are “very serious examples of their kind” if that submission is taken to suggest (even if only in some notional sense) that the offences were above mid range offending given that the position of the Crown on sentence was that his Honour should approach the appointment of indicative sentences for those offences as within that precise range. Further, in Mr Gartelmann’s submission the sentences indicated for both the s 66C(1) and s 66C(3) offences are an appropriate recognition of the relative seriousness of that offending against the different statutory maxima of 10 and 16 years. In his submission, all of the sentences indicated are consistent with the reasonable exercise of a sentencing discretion after applying the discount for the respondent's pleas of guilty and allowing his subjective circumstances to be afforded the considerable weight they were entitled to be afforded.

Consideration

115. An assessment of the objective seriousness of an offence is fundamental to the sentencing exercise. It is to be undertaken referable to the facts that are agreed for sentencing purposes, facts otherwise established by the evidence tendered by the parties and any legitimate inferences drawn from those facts. The assessment of objective seriousness calls for the exercise of a broadly based discretion. This Court should be slow to intervene and substitute its own views (see Mulato v R [2006] NSWCCA 282 at [32] per Spigelman CJ).

116. Despite the brevity with which his Honour dealt with the objective seriousness of the thirteen s 66EB offences, in my view the appointment of the relative seriousness of the offending between the two groups of s 66EB offences per se was open to him. However, the failure to record any reasons for indicating the same sentence for some of the offences within the two groups, despite the offences within each group involving quite different offending conduct and of differing duration, leads to the conclusion that his Honour has made a blanket assessment of the individual breaches of the section intra group, and then a blanket assessment of the differences between the two groups.

117. In addition, while the facts relating to the offences committed against all thirteen complainants were extracted in full in the sentencing reasons, his Honour made no attempt to assess the objective seriousness of any of the offences individually for the purposes of indicating an appropriate sentence before imposing the aggregate sentence and non-parole period. That has not only contributed to a misapplication of the principle of totality, but the failure to assess the criminality involved in each of the s 66EB and s 66C offences separately (and the remaining offences for that matter) has deprived the various complainants and the public of an understanding of the level of seriousness of each individual offence and how that has been treated for sentencing purposes.

118. I am also satisfied that his Honour’s approach to assessment of the objective seriousness of the ss 66C(1) and 66C(3) offences reflects error of a different kind. This Court has emphasised on numerous occasions that there is no hierarchy of sexual acts constituting intercourse against which the objective seriousness of a particular offence may be gauged. The type of sexual act involved in an offence involving sexual intercourse is one factor to be considered along with all the circumstances of the offending to determine its objective seriousness (see R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 at [24]–[25] per Simpson J; R v King [2009] NSWCCA 117 at [36] per McClellan CJ at CL). Mr Gartelmann submitted that when the sentencing judge said at the passage extracted above at [85], “It seems to me that factually the sexual intercourse matters are more serious” [emphasis added], a statement which immediately preceded the statement concerning “oral, fellatio” being “found to be somewhere in the middle of the range of relative seriousness”, he was not treating the nature of the sexual act as determinative of the objective seriousness of the s 66C(3) offences but making an assessment of relative seriousness of the particular offences committed by the respondent.

119. I am unable to accept that submission. His Honour’s finding of objective seriousness of the s 66C offences as in the middle of the range of objective seriousness seems to me to be directly related to his attribution of oral intercourse as in the middle of the range as a matter of judicial determination. I am reinforced in that view by the absence of any reference to the circumstances surrounding the commission of any of the s 66C offences, otherwise than to compare their objective seriousness with the seriousness of the procure offences in s 66EB(2) offences, both approaches being contrary to sentencing principle.

120. The respondent conceded that the sentencing judge’s failure to make any finding of objective seriousness of the offences contrary to ss 61N(1), 91H(2) and 91D(1)(a) was an error of sentencing principle and that the sentencing discretion miscarried in respect of those offences for that reason. He submitted, however, that of itself it was not an error which has been productive of an erroneously lenient aggregate sentence. That submission might have had force were the other errors relied upon by the Crown as contributing to a manifestly inadequate sentence not made out.

Residual discretion

121. The Crown bears the onus of negating any reason why the exercise of the residual discretion not to intervene and re-sentence is warranted (see CMB v Attorney General for New South Wales [2015] HCA 9).

122. In this case, I am satisfied that interference with the aggregate sentence is warranted and that the sentencing discretion should be exercised afresh. The leniency of an aggregate sentence which has a full-time custodial component of 3 years and 3 months in the context of the respondent’s persistent pursuit of young males by the variety of means he employed to achieve his own sexual gratification over a two year period, and the range of his offending conduct comprehended by the multiple charges for which he was to be sentenced, fails to reflect the proper application of a range of sentencing principles. For that reason, in my view, the sentence cannot be permitted to stand.

123. I note that there has been no relevant delay in the institution of the Crown appeal and that the respondent is at an early stage of his sentence (see R v Harris [2015] NSWCCA 81 at [65] and R v Cortese [2013] NSWCCA 148 at [68]-[69]). I accept that upon being notified of the Crown’s intention to appeal against the inadequacy of the aggregate sentence the respondent has suffered a relapse in his pre-sentence state of depression and anxiety. I also accept that as a result of being re-sentenced and what will be a significant increase in sentence that he is likely to be reclassified, further delaying his access to custody based treatment programs. After taking those matters into consideration, I remain firmly of the view that the exercise of the residual discretion to dismiss the Crown appeal would not be appropriate in this case.

Evidence on re-sentence

124. The sentences indicated for each of the twenty offences are the terms of imprisonment that his Honour must be taken to have regarded as an appropriate reflection of the objective seriousness of the particular offending and the respondent’s subjective case (including the discount for the guilty plea as provided by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act). As I have already observed, none of the indicated sentences were accompanied by adequate reasons for their appointment. Although the Crown does not submit that the indicated sentences are themselves necessarily suggestive of error, on this appeal this Court must undertake the appointment of appropriate indicative sentences for all offences on re-sentence.

The thirteen s 66EB offences (being sequences 1, 31, 5, 33, 11, 13, 14, 17, 22, 24, 26, 35, 37)

125. The s 66EB offences were committed in different ways, in the sense that there were some differences in the nature of unlawful sexual activity the respondent was intent on procuring from some of the complainants and the duration of the offending. In addition, as the offences involved young males of different ages, different statutory maxima applied.

126. There are, however, some features of the offending common to all thirteen s 66EB offences. First, they were all committed via electronic media of some kind. Secondly, the communication with each of the complainants featured explicit vernacularised language to describe unlawful sexual activity, including in most cases fellatio and/or anal intercourse, and invariably involved either the electronic transmission of images of male genitalia (the respondent’s, the complainant’s or on occasions a downloaded photograph from an internet site) or a request for the same. Thirdly, all offences included the respondent’s use of fictitious personae to lure the complainant into a false belief that he was communicating with a male or female teenager about a consensual sexual exchange, and involved the respondent using various tactics to solicit the complicity of the complainant in homosexual or bisexual activity, including falsely representing to some complainants that he was a 17 year old school boy. Finally, all offences evinced a determination on the part of the respondent to achieve sexual gratification at the expense of the complainant’s dignity and privacy.

127. The differentiating factors include the duration of contact, extending from days to weeks with some complainants and extending over months with others. They also include the extent to which the respondent persisted in making contact after a complainant had signalled a lack of interest in pursuing any proposed arrangements to meet and the methods the respondent used to coerce or cajole continued communication and contact (including offers of money and sometimes passive threats of self-harm), frequently after the child had indicated an unwillingness to escalate the sexual contact into a physical encounter or when the complainant wanted no renewed physical contact after meeting the respondent.

128. This Court has addressed the offending constituted by the allied offence of procuring a child under 16 for sexual activity using a carriage service under s 474.26(1) the Criminal Code Act (Cth) in a number of judgments (Gifford v R [2016] NSWCCA 302; R v Fuller [2010] NSWCCA 192; R (Cth) v Poynder [2007] NSWCCA 157; R v Nahlous [2013] NSWCCA 90; R v Asplund; Asplund v R [2010] NSWCCA 316; Tector v R [2008] NSWCCA 151). To date, the Court has not had occasion to consider the approach to sentencing for the offence under s 66EB of the Crimes Act where the use of a telecommunications service is not an element of the offence.

129. The collected researches of the parties produced a number of judgments of superior courts of other States and Territories where sentences for offences similar to the procuring offence under s 66EB have been under consideration. However, in each case, the use of a telecommunications service or carrier was implicated as an element of the offence. That said, although a breach of s 66EB need not involve the use of a carriage service, given the ubiquity of electronic media generally and its obvious utility as a means of making anonymous contact with children, there is every likelihood that a person who is intent on procuring a child for unlawful sexual activity will seek to initiate and maintain contact by those means.

130. The authorities were of some use in identifying the factors relevant to an assessment of the objective seriousness of offending of a similar kind to the offence in s 66EB although it is not necessary to refer to any of them in detail.

131. It suffices for present purposes to refer to the oft quoted passage from R v Fuller [2010] NSWCCA 192 where McClellan CJ at CL said at [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.

132. His Honour went on to observe at [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.

133. I note that in that case (and others to which this Court was referred) no victim was involved in the offence. The offending was detected by police introducing a fictitious child.

134. In R v Asplund [2010] NSWCCA 316 (a judgment delivered four months after Fuller) in another successful Crown appeal against manifest inadequacy (on this occasion for two breaches of s 474.27(1) where a child victim was involved), McClellan CJ at CL emphasised as follows:

[50] The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity.

135. These observations have obvious application in the sentences to be indicated on re-sentence and in the appointment of an aggregate sentence and non-parole period.

136. I accept that the respondent’s prospects of rehabilitation are not unfavourable. I am not, however, prepared to re-sentence him on the basis that they are of the high order his Honour ascribed to them. I accept that at the time of sentence a sex offender’s willingness to seek assistance and undertake treatment programs might signal insight into their offending and that they are genuinely contrite. I also accept that the respondent does appear to have that insight and an appreciation of the ramifications of his offending behaviour on others. I also accept that his contrition is genuine. However, because pharmacological treatment options designed to assist in a sex offender’s rehabilitation in a custodial setting are no longer available unless the inmate is able to fund the cost of the treatment and because, as the respondent has made clear in his affidavit read on sentence, he is without the means to fund any course of treatment or any prospect of being able to do so in the future, when measured against actuarial assessments of risk he must be considered at this time as being at least at a moderate risk of reoffending. As a consequence, the sentence to be imposed by this Court must reflect the need to protect the community from that risk as provided for in s 3A(c) of the Crimes (Sentencing Procedure) Act.

137. That said, the steps the respondent took of his own volition before sentence, consistent with his evidence on re-sentence, allows for a finding that his commitment to seek assistance in the future is not a cynical expression of self-interest. This evidence must be given some weight in mitigation of sentence to ensure that the sentencing principle of rehabilitation in s 3A of the Crimes (Sentencing Procedure) Act is accorded appropriate weight as one of the objectives in the exercise of a sound sentencing discretion. The principles of general deterrence and denunciation must also carry significant weight in the appointment of an aggregate sentence and non-parole period in this case.

138. The respondent’s pleas of guilty and the evidence which allows for his offending to be viewed in the context of a dysfunctional upbringing and his underlying psychosocial profile will also be taken into account in the appointment of the indicative sentences, although it does not, in my view, diminish his moral culpability to any marked degree or the weight to be attributed to general deterrence in the re-sentencing exercise.

139. The indicative sentences that I propose are reflected in the table below. It mirrors the way in which the sentences indicated at first instance were tabulated in [9] above.

Victim	Sequence	Section	Indicative Sentence	Maximum Sentence
OD	1 + Form 1	66EB(2)	3 years and 6 months	15 years
2	61N(1)	6 months	2 years
141 TB	31	66EB(2)	2 years	12
	32	66C(3)	4 years	10
MC	5	66EB(2)	2 years	15
EW	8	91D(1)(a)	3 years	10
	33	66EB(2)	2 years	12
	34	66C(3)	4 years and 6 months	10
DC	11	66EB(2)	2 years	15
BP	13	66EB(2)	2 years	15
CCD	14	66EB(2)	2 years	15
TOC	17	66EB(2)	2 years	15
LDB	22	66EB(2)	4 years	12
ADC	24	66EB(2)	2 years	15
KR	26	66EB(2)	2 years	15
EM	35	66EB(2)	2 years	12
	36	66C(3)	4 years	10
JG	37	66EB(2)	3 years	15
	38	66C(1)	5 years	16
Rolled up	3	91H(2)	1 year and 6 months	10

140. Dealing first with the offences involving the three complainants in respect of whom charges were laid against both s 66EB(2) and s 66C(3), being TB (aged 14), EW (aged 15), and EM (aged 15). After taking into account the objective seriousness of the respondent’s conduct in the commission of the procure offences involving those three complainants, in each instance involving a high degree of manipulation and persistence and with graphic and lewd references to the sexual intercourse that the respondent proposed, and after taking into account the pleas of guilty and the respondent’s subjective case, I would indicate the same sentence of 2 years for each, being sequences 31, 33 and 35.

141. I am conscious of the need to avoid double counting when moving to indicate sentences for each of the three s 66C(3) offences involving those three complainants (including, in EW’s case, that an offence against s 91D was also implicated).

142. The three breaches of s 66C(3) involving the same three complainants involved fellatio of differing degrees in terms of intensity and duration (with the assault on TB and EW proceeding to ejaculation) in circumstances where the complainant was either lured into a park or a parked car and, in EW’s case, where intercourse took place in his family home. In each case, a sentence of 4 years is indicated against the statutory maximum of 12 years (sequences 32, 34 and 36).

143. The sentences to be imposed for the s 66EB and s 66C(1) offences involving JG will need to be different to those imposed upon the other three complainants given his age and the need to take into account the increased maximum penalties that apply for that reason. The s 66C(1) offence involving JG is of greater objective seriousness with the respondent informing him that he would kill himself unless there was further sexual contact. I propose indicated sentences of 3 and 5 years respectively for that reason (sequences 37 and 38).

144. The offence against s 91H(2) concerned the respondent’s possession of a video recording of an unknown child masturbating for a few seconds and images of complainants EW, TB and CCD. It is not clear from the evidence before the sentencing judge or this Court why that has been connected with JG. In any event, I consider an indicative sentence of 18 months as an appropriate reflection of the criminality inherent in that discrete offending after taking into account the respondent’s plea of guilty and his subjective circumstances.

145. In respect of the balance of the s 66EB offences involving the remaining nine complainants I regard the offending involving LDB (aged 14), DC (aged 13) and ADC (also 13) of the greatest objective seriousness, given the respondent’s attempts over several months to procure them for sexual activity including, in LDB’s case, procuring him for anal intercourse and in ADC’s case, sexual intercourse in a nearby park, and that in respect of the complainants LDB and DC the respondent offered them money for sexual intercourse. In each case the respondent transmitted sexually explicit photographs of himself, whilst soliciting sexually explicit photographs of the complainants. Different sentences between these three complainants have been indicated to take account of the differences in their ages and the different maximum penalties that apply for that reason (sequences 22, 24 and 11).

140. In respect of BP, TOC, KR, MC, CCD and ADC (all aged 13) the nature and extent of contact with the respondent was of similar duration and intensity, although of a lesser order than with other complainants, in part because contact was initiated with three of the complainants (CCD, TOC and KR) after another complainant, DC, introduced them to the respondent. It would appear that those three complainants were apparently drawn to participate in an exchange of photographs with the respondent, although TOC sent random photographs downloaded from the internet and KR made only bogus plans to meet the respondent with contact ceasing very soon thereafter. CCD did send and receive explicit photographs.

141. MC was in communication with the respondent for only a week. Whilst he inquired whether the respondent would pay for sex (apparently being led to believe from one of his friends that the respondent would pay for sex), the communication did not progress with the respondent discontinuing contact.

142. BP was introduced into online communication with the respondent via OD who had by that time been groomed by the respondent. No sexually explicit photographs were exchanged with the respondent, although he did send a colour photograph of his face, and invited BP to join in a homosexual liaison. BP rejected that advance and the communication did not progress further. The respondent and BP were only in contact for a week.

143. It is in those circumstances with a relativity of objective seriousness between the complainants in this group and, after taking into account the respondent’s plea of guilty and his subjective circumstances, I propose an indicative sentence of 2 years for each of sequences 5, 13, 17, 26, 14 and 24.

144. The s 66EB offence involving the last complainant, OD (aged 12), included two offences against s 61N(1) on the Form 1. In my view, this warrants an indicative sentence for the breach of s 66EB of 3 years and 6 months. A further offence against s 61N(1) was laid substantively. In my view, this warrants an indicated sentence of 6 months against a maximum sentence of 2 years.

145. The Crown accepted that it was open to this Court to make a finding of special circumstances. I am prepared to maintain that finding but I am not prepared to reduce the proportion of the sentence represented by the non-parole period by the same extent as allowed by the sentencing judge. While there is value in the respondent being supervised in the community upon his release to parole to minimise the risk of him reoffending, I consider the period of parole incorporated in the aggregate sentence that I propose will be sufficient for that purpose.

146. After taking into account the course of the respondent’s offending over a two year period, the number of complainants involved and the nature of the offending against each of them, I propose an aggregate sentence of 12 years with a non-parole period of 7 years be imposed.

Orders

153. I propose the following orders:

1. Crown appeal allowed.

2. Confirm the sentence imposed for the offence under s 474 of the Criminal Code Act (Cth) (being charge sequence 4).

3. Quash the aggregate sentence imposed by Toner DCJ on 30 November 2016 for the offences under the Crimes Act (NSW) (being charge sequences 1 (+ Form 1), 2, 31, 32, 5, 8, 33, 34, 11, 13, 14, 17, 22, 24, 26, 35, 36, 37, 38, 3).

4. In lieu thereof, the respondent is sentenced to an aggregate term of imprisonment of 12 years with a non-parole period of 7 years commencing on 6 February 2016 and expiring on 5 February 2023 with a balance of term of 5 years expiring on 5 February 2028.

154. HAMILL J: I agree with Fullerton J.

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Decision last updated: 06 September 2017