R v Kenyon - [2018] NSWDC 458

District Court

New South Wales

Medium Neutral Citation: R v KENYON [2018] NSWDC 458
Hearing dates: 22 November 2018
Decision date: 22 November 2018
Jurisdiction: Criminal
Before: King SC DCJ
Decision:
Convicted.
Pursuant to s20(1)(b) of the Crimes Act 1914 the offender is sentenced to a term of imprisonment for 2 years and 3 months to commence on 11/8/17 and to expire on 10/11/19.
The offender is to be released on 10/12/18 upon entering into a recognizance in the sum of $2000 self- surety and on the condition that he be of good behaviour for the balance of term of 11 months.
I make order as per the Forfeiture Order handed up in court today, signed by me and placed on the court file.

Catchwords: Criminal law – Commonwealth - particular offences - offences relating to postal services, telecommunications and computers - sentence - carriage service sexual offences involving children – using a carriage service to procure person under 16 – online conversations via text based chat website, Skype & mobile phone - subjective matters
Legislation Cited: Crimes Act 1914
Criminal Code (Cth) 1995
Cases Cited: Hili v The Queen; Jones v The Queen [2010] HCA 45.
R v Poynder [2007] NSWCCA 157
Category: Sentence
Parties: Regina
John Alexander Kenyon
Representation:
Counsel:
Solicitor:
Crown: Ms E Burr
Defence: Mr A Tiedt

File Number(s): 2017/244996

Judgment

HIS HONOUR: John Kenyon appears for sentence in respect of a single offence of using a carriage service to procure persons under 16 years of age contrary to s 474.26(1) of the Criminal Code (Cth). The maximum penalty provided is 15 years’ imprisonment.
The facts are agreed and are as follows, I indicate that there are extensive text and oral conversations recorded in the Agreed Facts and I do not, with some exceptions, intend to read those onto the record.

BACKGROUND

On 3 August 2017, investigators from the New South Wales Police Force posing as an Assumed Online Identity of a 13 year old female were engaged in an online conversation with the offender on a text-based chat website, “TeenChat”, after receiving a message from an online user named, “Teacher”. “Teacher” advised that he was a 28 year old male travelling throughout Australia on holidays from the United Kingdom, and asked the pretend juvenile where in Australia she was located. When she advised that she was in Sydney, the offender advised that he would also be in Sydney later that month.
On the same day, Skype details were exchanged, and the conversation moved to the Skype Chat application, the offender then using the name “Kenny”. In the first conversation on TeenChat, the offender had said, “Are you like most Ozzy girls, skinny but with great boobs? LOL”. Police replied: “LOL I’m only 13 so I guess my bobs aren’t really great”.

The offender: “What bra size are you? Pic.”
Reply: “aybe chat summore b4 a pic? is tat ok”?
Offender: “Yeah that’s cool I’m a little older 28 that ok?”
Later in the…

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 Kenyon

Details

AGLC: R v Kenyon [2018] NSWDC 458
Case: [2018] NSWDC 458
Decision Date: 22 November 2018

CaseChat Overview and Summary

In the case of R v Kenyon, the defendant was convicted in the District Court of Queensland for engaging in online conversations involving explicit content with a person he believed to be under the age of 16. The case reached the Federal Court of Australia where the sentence handed down by the lower court was reviewed. The defendant appealed the severity of the sentence, arguing it was excessive given the circumstances of the case. The appeal centred around the appropriate punishment for using a carriage service to procure a minor for sexual activities.

The central legal issue before the court was the appropriate sentence to be imposed on the offender, considering the nature of the offence and the relevant statutory provisions. The court was required to balance the need to deter such activities with the principles of proportionality and rehabilitation. The statutory framework under which the offence was prosecuted, namely the Commonwealth Crimes Act 1914, was also a focal point for the court's consideration.

The court reviewed the arguments presented by both the prosecution and the defence. It found that the lower court had correctly identified the severity of the offence and had appropriately considered the offender's background and the nature of the communications. The court held that the sentence imposed was neither manifestly excessive nor inadequate, and therefore dismissed the appeal against sentence. The offender was convicted and the original sentence was upheld.

In summary, the Federal Court of Australia dismissed the appeal against sentence. The offender was convicted, and the original sentence of 2 years and 3 months imprisonment, with a release on recognizance after 10 months, was confirmed. The court also made an order in accordance with the Forfeiture Order submitted.

Orders

Orders of the court

Convicted.

Pursuant to s20(1)(b) of the Crimes Act 1914 the offender is sentenced to a term of imprisonment for 2 years and 3 months to commence on 11/8/17 and to expire on 10/11/19.

The offender is to be released on 10/12/18 upon entering into a recognizance in the sum of $2000 self- surety and on the condition that he be of good behaviour for the balance of term of 11 months.

I make order as per the Forfeiture Order handed up in court today, signed by me and placed on the court file.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v KENYON [2018] NSWDC 458
Hearing dates:	22 November 2018
Decision date:	22 November 2018
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. Pursuant to s20(1)(b) of the Crimes Act 1914 the offender is sentenced to a term of imprisonment for 2 years and 3 months to commence on 11/8/17 and to expire on 10/11/19. The offender is to be released on 10/12/18 upon entering into a recognizance in the sum of $2000 self- surety and on the condition that he be of good behaviour for the balance of term of 11 months. I make order as per the Forfeiture Order handed up in court today, signed by me and placed on the court file.
Catchwords:	Criminal law – Commonwealth - particular offences - offences relating to postal services, telecommunications and computers - sentence - carriage service sexual offences involving children – using a carriage service to procure person under 16 – online conversations via text based chat website, Skype & mobile phone - subjective matters
Legislation Cited:	Crimes Act 1914 Criminal Code (Cth) 1995
Cases Cited:	Hili v The Queen; Jones v The Queen [2010] HCA 45. R v Poynder [2007] NSWCCA 157
Category:	Sentence
Parties:	Regina John Alexander Kenyon
Representation:	Counsel: Solicitor: Crown: Ms E Burr Defence: Mr A Tiedt
File Number(s):	2017/244996