R v McKeay

[2020] NSWDC 408

District Court

New South Wales

Medium Neutral Citation:

R v McKeay [2020] NSWDC 408

Hearing dates:

6 July 2020

Date of orders:

31 July 2020

Decision date:

31 July 2020

Jurisdiction:

Criminal

Before:

Weinstein SC DCJ

Decision:

For use carriage service to procure person under 16 years for sexual activity, I impose a head sentence of 2 years, 3 months.

For possess child abuse material, I make an order under s10A of the Crimes (sentencing Procedure) Act 1999.

For orders see [49].

Catchwords:

Sentence- use carriage service to procure person under 16 years for sexual activity- possess child abuse material - no prior criminal history - online advertisement for an Asian teen girl – police assumed online identity of a 14 year old female

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

DPP (Cth) v Boyle (A Pseudonym) [2016] VSCA 269

DPP (Cth) v Haynes [2017] VSCA 79

DPP (Cth) v Singh [2017] VSCA 146

Hili v the Queen; Jones v the Queen [2010] HCA 45

Markarian v The Queen [2005] HCA 25

Minehan v R [2010] NSWCCA 140

Muldrock v The Queen (2011) 244 CLR 120

Power v R [1974] 131 CLR 623

R v Asplund [2010] NSWCCA 316

R v De Leeuw [2015] NSWCCA 183

R v Gajjar (2008) 192 A Crim R 76

R v Hutchinson [2018] NSWCCA 152

R v Porte [2015] NSWCCA 174

Tector v The Queen (2008) 186 A Crim R 133

Category:

Sentence

Parties:

Regina (Crown)
Jamie McKeay(Offender)

Representation:

Mr Kangasabapathy (Crown)
Mr Steward (Offender)

File Number(s):

2019/183582

Judgment

1. The offender Jamie McKeay, born in 1987, is before the court for sentence for the offence of use carriage service to procure person under 16 years for sexual activity contrary to s 474.26(1) of the Criminal Code (Cth) for which the maximum penalty is 15 years imprisonment, and possess child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW) for which the maximum penalty is 10 years imprisonment. There is no standard non-parole period for either offence.

2. The agreed facts are as follows:

Sequence 1: Use a carriage service to procure person under 16 years for sexual activity

1. On 4 June 2019, NSW Police located an advertisement on the website “Locanto” which allows users to post classified advertisements.

2. The advertisement was posted by an individual located in Cabramatta who used the username “Icy56” and stated:

“reward for teen girl

looking to reward an asian girl for some fun. reward will be $1000 but you must be in your teens”

3. Shortly after locating the advertisement, investigators from the NSW Police Child Exploitation Internet Unit (CEIU) began communicating with the accused utilising the assumed online identity of a 14 year old female (CEIU30).

4. The following conversation took place on Locanto:

CEIU30   hey im thai n im 14 my names Kim :) $1000 would be awesome!!

ACCUSED   Hi there, what things are you willing to do?

CEIU30   What wud u want me to do?

ACCUSED   Bj, sex and let me cum on your face?

CEIU30   Ok but I haven’t done any of that b4

ACCUSED   I can teach you if you are willing

CEIU30   K if u want to

ACCUSED    What do you look like

CEIU30   Im skinny n have long black hair n im thai

ACCUSED   Got a photo?

CEIU30    Im on my mums comp right now n don’t hav 1 on here

ACCUSED    Oh ok, how do you want to meet up then?

CEIU30   Umm dunno do u hav skype? We can msg on there

5. The accused then sent CEIU30 an invitation to communicate with him via Skype.

6. Between 4 June 2019 and 17 June 2019, the accused and CEIU30 communicated via the messaging system on Skype. Excerpts from the chats are as follows:

4 June 2019

CEIU30   So were u serious about the 1000?

ACCUSED    Depends on what you are willing to do for it

CEIU30   What wud u want me to do?

ACUSED   Hmmm

ACCUSED   Start off with sucking my cock

…   

ACCUSED   Don’t worry I’ll lick you to

…   

CEIU30   What else do u want me to do?

ACCUSED   How you feel about sex

…   

ACCUSED   I’ve never had a virgin before

…   

ACCUSED   You wont mind doing that with an older guy?

11 June 2019   

ACCUSED   When would you want to meet up

CEIU30   Where would you wanna go

ACCUSED   My place?

ACCUSED   Maybe

CEIU30   Where u live again

CEIU30   Id be heaps nervous

ACCUSED   Cabramatta

…   

ACCUSED   You will be ok with learning to suck on my cock?

…   

ACCUSED   What about sex?

CEIU30   Would that hurt

ACCUSED    Maybe a little since its your first time

ACCUSED   But it usually feels good

…   

ACCUSED   But I’ll start with licking you there and using my finger

ACCUSED   I wont cum inside

CEIU30   Wud u wanna do that at ur place

ACCUSED   Bj

ACCUSED   Sex

ACCUSED   And I’ll either cum in your mouth or face

…   

CEIU30   When would you wanna meet up

ACCUSED   When would be best

ACCUSED    During school hours?

CEIU30   Yeah I could probably just miss school

ACCUSED   I’ll just need to take a day off work

ACCUSED    I’ll let you know when I do

ACCUSED   Hey what made you want to do this?

ACCUSED   Didn’t think girls like you were on that site

CEIU30   Idk a friend told me about it then I saw your ad and I could use some money to go shopping

CEIU30   Then we started chatting and u seem really nice

ACCUSED   Oh ok

ACCUSED    Happy to of met you

CEIU30   J

ACCUSED    Do you have your boobs yet?

12 June 2019

ACCUSED   When did you want to meet up

CEIU30   Wish I culd b4 the weekend…but I cant

ACCUSED   Why is that

ACCUSED    I kinda cant to, work would be to busy

CEIU30   Bummer I rly need the cash

ACCUSED   Why cant you meet before then?

CEIU30   Jst cant get away from mu and skool

ACCUSED   Oh

ACCUSED   When would you think you could

CEIU30   Maybe nxt week?

ACCUSED    Yeah that would be fine

CEIU30   Cool

ACCUSED   We’ll work on what day

…   

ACCUSED   Hey when we meet will you be in uniform?

…   

ACCUSED   Just use your tongue lots and you’ll be fine

CEIU30   Like how?

ACCUSED   Like start off by licking the tip and down to the balls

CEIU30    What else?

ACCUSED   When you take it into your mother cover your bottom teeth with your tongue

CEIU30   Ok

CEIU30   Will it taste gross?

ACCUSED   I keep mine clean

CEIU30   Cool

ACCUSED    I’ll shower before we do anything

CEIU30    Sounds good

CEIU30   Wuld we do anything else

ACCUSED   Its big though

ACCUSED   I’ll lick your pussy to

ACCUSED   And suck on your boobs

ACCUSED   Have sex if your comfortable with it

…   

ACCUSED   I’ll want to cum on your face to if that’s ok

CEIU30   That’s ok I guess

ACCUSED   Not happy with that?

CEIU30   I dunno

CEIU30   Sounds a bit gross

ACCUSED   It’s a little messy is all

CEIU30   Ok

ACCUSED   Maybe you’ll like it

13 June 2019

CEIU30   Did u really wanna meet up or were u just joking

ACCUSED   I do want to meet

ACCUSED    It may sound weird but I have had a fantasy about a girl like you

CEIU30   Like what do you mean

ACCUSED   A schoolgirl

CEIU30   Like 14 like me

ACCUSED   Um yea

…   

ACCUSED   How do you feel about the age difference

…   

CEIU30   Send me a selfie J

ACCUSED   The accused sent CEIU30 a picture of himself.

…   

ACCUSED   It is pretty big though if that is ok

CEIU30   Omg rly?

CEIU30   How big?

ACCUSED   8 inches when hard

CEIU30   Is 8 inches big I dont know inches lol

CEIU30   Ive neva seen 1 close up b4

ACCUSED   Between 17 to 20cm long

…   

ACCUSED   You don’t have to put the whole thing inside, just as much as you can

CEIU30   Ok I don’t think that wuld fit

ACCUSED   Up to you if you want to try

ACCUSED   Which part wont it fit in?

CEIU30   If it doesn’t fit will I still get money

ACCUSED   I’ll think about it

…   

CEIU30   Do you rly have that much money

ACCUSED   I do

…   

ACCUSED   The accused then sent CEIU30 a picture of his bank account balances as proof that he could pay her $1000 if they met up.

17 June 2019

CEIU30   when do u think well meet

ACCUSED   Was going to do today

ACCUSED   But didn’t hear from you

CEIU30   Whaty if I skip next Monday

ACCUSED   Sure

ACCUSED   That would be ok

ACCUSED   What do you want to do

CEIU30   Cool

CEIU30   Did you wanna do that stuff u spoke about

ACCUSED   Sure

ACCUSED   If its ok with you

CEIU30   Where do u want me to meet u

ACCUSED   Want me to pick you up

ACCUSED    Or meet in Cabramatta

CEIU30   Don’t really know Cabramatta if you can meet me

ACCUSED   Yeah I will

CEIU30   So meet at the station

…   

ACCUSED   There anything you want to try with me

CEIU30   Wanna meet at like 1030 or something

ACCUSED   Alright

CEIU30   Idk what did u want for the 1000

ACCUSED   Would you suck on my cock and have sex

ACCUSED   Let me cum on you a couple of times

…   

ACCUSED   You don’t mind having someone touch your ass to

…   

ACCUSED   I’ll be gentle with you

CEIU30   Thnx

ACCUSED   Anywhere you want to be touched?

CEIU30   Where ever you think would feel good for me

ACCUSED   Ok

ACCUSED    I’ll probably be touching your boobs, ass and pussy

CEIU30   That sounds ok

ACCUSED   Want me to lick those places to

…   

ACCUSED   Btw if I cum in your mouth do you mind swallowing it

CEIU30   Would you want me to

ACCUSED   Be sexy if you could

Search Warrant and Arrest

7. On 21 June 2019, CEIU investigators attended the work address of the accused and spoke to him. He indicated that he had thought he had been communicating with a fake account. The accused was then escorted by CEIU investigators from his workplace to Bankstown Police Station.

8. The accused agreed to participate in an electronically recorded interview where he stated to police that he thought his conversation with CEIU30 was suspicious and that he spoke to her about sexually explicit things because he wanted to “scare her off”. He stated to police that he kept communicating with her to see how far it would go but that he had no intention of meeting her.

Sequence 2: s 91H(2) of the Crimes Act 1900 (NSW) Possess Child Abuse Material

9. During the execution of the search warrant at the accused’s residential premises, CEIU investigators seized the following electronic devices:

1. 1 x Lexar USB;

2. 1 x Computer tower “Deep cool” brand;

3. 1 x black laptop “Alienware” brand;

4. 2 x hard drives;

5. 1 x HTC mobile phone;

6. 1 x Apple Mac;

7. 1 x “colour turn” USB;

8. 1 x Silver Apple iPhone; and

9. 1 x Sandisk 16gb USB.

10. Material identified by CEIU investigators as child pornography is classified into categories as per the Interpole Baseline Categorisation System. This categorisation system makes reference to the activity depicted in the child pornography material as follows:-

Category

Type

ISB 1

Image or video depicting a real pre-pubescent child:

Involved in a sex act;

Witnessing a sex act; or

Whose anal or genital region is the focus of the depiction

ISB 2

All other material which falls within the definition of child abuse material but which is not Category 1.

11. By virtue of the definition of ‘child abuse’ in section 91FB of the Crimes Act 1900 (NSW), material classified as child pornography material is, by extension, identified as child abuse material.

12. On about 6 January 2020, each of the electronic items seized from the accused was reviewed by CEIU investigators and the State Electronic Evidence Branch (SEEB) using the Interpol Baseline Scale (the IBS). Of those items, child pornography material was located on one of the electronic devices.

The “Deep cool” Computer Tower

13. The accused’s computer tower was reviewed. Seven images contained on this device were classified as ISB2.

14. In relation to the image files, the images include depictions of a pre-pubescent female, who is wearing a bra, underwear and a fishnet shirt. The images progress through the removal of the fishnet top. The images focus on the buttocks, breasts and vagina of the child. There is no nudity in the images.

Antecedents

15. The accused is a 33 year old male and is a New Zealand citizen. He has one daughter who is 14 years of age.

16. The offender has no prior criminal history. The offender has been in custody since his arrest on 21 June 2019.

Evidence

3. Before me are two exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:

1. The indictment;

2. Agreed facts (which are noted above);

3. Criminal and custodial history;

4. Comparative sentencing schedule; and

5. Forfeiture order.

4. Exhibit 2 is a psychological report by Bradley Jones dated 21 May 2020 together with his curriculum vitae and an expert certificate.

Exhibit 1

5. The offender has no prior criminal history.

Exhibit 2

6. Mr Jones assessed the offender via audio-visual link on 15 May 2020. The offender was raised in a relatively loving and supportive home environment in New Zealand. He experienced a history of emotional dysregulation and engaged in solitary online gaming in order to achieve some form of social connection. In Mr Jones’s opinion, Mr McKeay is experiencing some symptoms of anxiety as a result of the current criminal proceedings. However, in Mr Jones’s view, he is not suffering from a diagnosable condition.

7. At the time of the offending, Mr McKeay said he was feeling depressed and lonely. His daughter lived at home but she spent her time in her bedroom, socialising online with friends. His (female) partner lived in the Philippines. He reported that he had placed an online advertisement for an Asian teen girl as he wanted company and some form of companionship. The offender indicated that the advertisement and subsequent contact with the ‘girl’ reminded him of his first sexual experience with his first partner. He indicated that he had not thought of the consequences of his behaviour and that he was feeling increasingly anxious and uneasy with the contact he was having with the ‘girl’. Notwithstanding the unease, he was unable to stop having contact. The offender stated that he was relieved that the ‘girl’ was in fact a police officer, that he was arrested and that a child was not hurt as a result of his behaviour. He acknowledged that what he did was wrong. He expressed guilt and remorse. He stated to Mr Jones:

“I regret doing that. I should never have done that. I should never had placed the ad or responded to her. I’m glad it was a police officer and not actually a child.”

8. Mr McKeay’s parents divorced when he was aged 15 and he believed that he was responsible for, or at least significantly contributed to their break-up. The offender indicated that most of his friends are online friends that he met through gaming. He denied experiencing any significant trauma or sexual abuse during his childhood.

9. Mr McKeay migrated to Australia in December 2009 in search of better work opportunities. He reported having two long-term intimate relationships. He began dating his first partner at age 18 and they had a daughter together, now aged 14. However, his partner was unfaithful to him and their relationship ended after four years. He met his current partner through an online dating app. She resides in the Philippines and he has visited her twice. The offender stated that since being placed on remand, their relationship has become closer and she remains supportive of him.

10. Mr McKeay first began consuming alcohol at age 17 and would drink on most weekends at social gatherings to the point of intoxication. He stopped drinking when his ex-partner conceived their child, but following the end of their relationship he recommenced drinking as he was depressed and engaging in self-harming behaviours. He stated that he would binge drink alone most weekends until he lost consciousness but ceased this behaviour at about age 25. The offender also smoked cannabis as a recreational activity but ceased when he was aged 22.

11. The offender indicated that he was diagnosed with Attention Deficit Disorder (ADD) at the age of 13 and was prescribed Ritalin. He ceased taking the medication when aged 16. He further recalled being diagnosed with Asperger’s as a teenager. He was also prescribed the antidepressant drug Aropax in high school. He stated that after the break down of his first relationship, he became increasingly depressed and engaged in deliberate self-harm behaviours, namely the cutting of his arms. Mr Jones observed that the scars from that behaviour are still evident on the inside of both of his arms, predominantly to his left arm. The offender stated that the more online gaming he engaged in, the more online friends he made which helped him reduce and later cease his cutting behaviours. Mr McKeay reported that he first began to experience passive suicidal thoughts at the age of 16. When his first relationship ended, his suicidal ideation significantly increased and at age 23 he took an overdose of Panadol and Nurofen tablets and alcohol in an attempt to end his life. He believes that meeting his current partner has improved his mood and resulted in a reduction of suicidal ideation. After his arrest, his suicidal ideation increased while in custody which he reported to Corrective Services. He consulted a mental health nurse and had follow up psychological treatment. He has completed a mood management course whilst in custody, and he believes that he is now in a relatively stable mental condition.

12. The offender’s mother confirmed that the offender was isolated as a youth, and that he suffered ADD and Asperger’s disorder which affected his educational years. She believed that his offending was totally out of character.

13. The offender indicated that both his sexual partners have been of Asian appearance and that he is attracted to the facial features and the petite bodies of Asian females as he finds them less threatening then western females. He admitted having sexual fantasies and a sexual attraction to 18-21 year old Asian girls who dress up in school uniforms and has engaged in similar role-play. He denied sexual attraction towards preteen children and denied sexually deviant behaviours including rape scenarios and BDSM.

14. When questioned about the offence, Mr McKeay was self-critical and expressed shame and regret with respect to his behaviour. He was unable to state that he would not have attempted to meet with the ‘girl’. He understood communicating with the ‘girl’ was wrong and said that he had experienced internal conflict about wanting to continue contact. He said that a lack of emotional and intimate bonding with his partner, and feelings of isolation and loneliness were an underlying factor for his need for some form of sexual intimacy. He also wanted to ‘re-live’ his past sexual experiences with his initial partner during their school years, which he reported was a significant driving factor for placing the advertisement.

15. Mr Jones noted that the offender’s affect was flat. Mr Jones administered a number of tests in assessing the offender’s risk, and concluded that he poses a low risk for committing further offences relative to other offenders and presents a low risk of engaging in sexual offending behaviour. He proposes a treatment plan including cognitive behavioural therapy, vocational education and social skills training, stress management and psycho-education, communication and relationship training and relaxation training.

16. I note here that I have been greatly assisted by the able oral and written submissions of both the Crown and Mr Steward.

Objective Seriousness

17. With respect to the Commonwealth offence, the Crown submits that the factors set out in Tector v The Queen (2008) 186 A Crim R 133 at [94] and R v Asplund [2010] NSWCCA 316 must be considered when assessing the objective gravity, a submission with which Mr Steward on behalf of the offender does not disagree.

18. The Crown submits that the offender is highly culpable and notes the following:-

1. The offender spoke with CEIU30 over the Locanto and Skype messenger systems. The offender’s communication with CEIU30 was persistent with numerous messages being sent over a two week period;

2. The offender knew from the outset that the victim was 14 years of age when they commenced communicating;

3. The offender initiated the offending by posting an advertisement offering a monetary reward for a teen girl the amount of $1000;

4. The offender reiterated to CEIU30 that she would receive money for sexual activity and sent her a copy of his bank balance to prove his ability to pay her;

5. The text messages were sexually explicit and suggest that the offender's intention was to engage in sexual activity and in particular sexual intercourse;

1. The messages demonstrate the offender's communications with a view to procuring CEIU30 for his own sexual gratification; and

2. There was power imbalance created by the age difference between the offender and CEIU30.

19. I accept that those matters are important when assessing the objective gravity of the offending.

20. Mr Steward submitted that the time over which the offending occurred was relatively short being 13 days, that the accused sent multiple messages to the victim, that the messages were sexually explicit, that there was no attempt by the offender to disguise his intention, that he sent pictures of himself, his bank details and conceded his age difference to the victim, that the putative age of the victim was relatively close to the threshold age of 16 years, that the offender made a monetary offer to the victim, and that the offence is not aggravated by actual harm because of the use of an imposter victim. So much is true, and I take these matters into account. I note that the while the presence of an actual victim may aggravate the offending, the absence of a victim will not mitigate it: DPP (Cth) v Singh [2017] VSCA 146 at [44].

21. In my opinion, noting the maximum penalty of 15 years imprisonment as a yardstick, the circumstances of the offending places it somewhere just below the middle of the range of objective seriousness.

22. With respect to the State offence, the Crown points to the circumstances relevant to the determination of objective seriousness set out in Minehan v R [2010] NSWCCA 140 at [94], R v Hutchinson [2018] NSWCCA 152 at [45] and R v Porte [2015] NSWCCA 174, all of which are well known to the court. Of particular significance is a recognition by the courts that the possession of child pornography is not a victimless crime, as the harm is ongoing because the material remains in circulation on the internet.

23. In this matter, the Crown says that the offender possessed seven images which were located on his computer hard drive, being a series of images depicting a pre-pubescent female victim. He submitted that the offending is objectively serious and demonstrative of the offender’s sexual interest in children.

24. Mr Steward notes that there is no nudity in the images and the classification assigned to the images is ISB1, which is the less serious category. He further submits that an actual child is portrayed, that there is no cruelty or physical harm depicted, only one child is depicted, there is no suggestion other than that the images were for the personal use of the offender, the proximity of the offender to the producers of the images is unknown, the offence lacks any apparent sophistication, the offender acted alone and there does not appear to be any discernible risk of the material being inadvertently discovered by other vulnerable persons.

25. In my opinion, taking into account the written and oral submissions of both the Crown and Mr Steward, the objective seriousness of this offending sits at the low end of the range.   

Subjective Circumstances

Plea of Guilty 16A(2)(g) of the Crimes Act

26. The offender pleaded guilty to both counts on the indictment. He did so at the earliest opportunity and is entitled to a discount for the utilitarian value of his plea. I assign a discount of 25%.

Deterrence and Punishment s16A(2)(j) and s 16A(2)(k) of the Crimes Act

27. The Crown submits that general deterrence must be taken into account in determining the appropriate sentence for both the Commonwealth and NSW offences. There is no doubt that general deterrence and denunciation is of paramount importance in sentencing for these offences and must reflect the public interest in protecting children from sexual exploitation and abuse. In sentencing, courts must also bear in mind that offending involving the “grooming” and “procuring” of children has become increasingly prevalent with the advent of the internet as a means of allowing predators to act anonymously: see R v De Leeuw [2015] NSWCCA 183 at [72 (e) and (f)], and DPP (Cth) v Boyle (A Pseudonym) [2016] VSCA 269 at [91] – [94].

28. The sentence to be imposed must make clear to other like-minded persons that these types of offences are abhorrent, and will be met with punishment of a severity reflecting the community’s attitude to the exploitation of children.

Personal Deterrence s16(2)(ja) of the Crimes Act

29. The Crown submits that there is a real need for the sentence to reflect an appropriate level of personal deterrence to reduce the offender’s risk of similar predatory offending in the future.

30. Notwithstanding that submission, I note the opinion of Mr Jones in his report of 21 May 2020 that the offender is at a low risk of reoffending. He reached that conclusion after administering a battery of tests. As to the weight that I should accord the report of Mr Jones, whilst I accept that it is untested and I note that the offender did not give evidence, there is objective evidence of his self-harming (in the form of scarring), and the offender’s mother corroborated at least some of the offender’s history. I observe, without so finding, that it is likely that the offender has significant undiagnosed and untreated mental health issues.

31. In my opinion, personal deterrence has some, albeit limited, role to play.

Rehabilitation s16A(2)(n) and Remorse s16A(2)(f) of the Crimes Act

32. Where the motivation to commit these offences arises from some degree of sexual deviance, successful rehabilitation will depend on the extent to which an offender recognises a disorder and has taken steps to overcome it. Where an offender has sought counselling, and particularly where therapy reveals that his primary or basic sexual drive is not paedophilic, there is likely to be a lower risk of re-offending. In the context of sentencing offenders for child sex offences, a person who has sought and is undergoing treatment and evinces an intention to continue with treatment is usually viewed by the courts as having greater prospects of rehabilitation. Here, Mr Jones records the offender’s remorse, which I accept.

33. In assessing the offender’s prospects for rehabilitation, it is submitted by the offender that the court could make a positive finding after considering;

1. His remorse;

2. His assessed low risk of reoffending;

3. His family support in New Zealand;

4. His productive lifestyle characterised by full-time employment prior to his arrest;

5. The treatment plan devised by Mr Jones; and

6. The offender’s lack of any prior criminal history.

34. I take these matters into account. In my opinion, the offender has reasonable prospects of rehabilitation, particularly if he engages in the treatment plan as set out by Mr Jones.

Personal Circumstances of Accused 16A(2)(m) of the Crimes Act

35. The offender is a 33 year old male with a 14 year old daughter. He migrated to Australia from New Zealand in 2009.

Prior Criminal History

36. The offender is entitled to some leniency on account of his prior good character and his lack of a prior criminal history, but less weight is to be accorded in offending of this kind: R v Gajjar (2008) 192 A Crim R 76.

Time in Custody

37. The offender has been in custody for this offending since 21 June 2019. I will backdate the sentence to that date.

Comparative Cases and Statistics

38. I have been provided with very helpful comparative cases by both the Crown and Mr Steward. In DPP (Cth) v Haynes [2017] VSCA 79 at [33] – [34], the court said:-

Comparable cases play an important role in advancing the underlying value of equality under the law and the search for unifying principles in the task of sentencing. Gleeson CJ, in Wong v The Queen, emphasised that the criminal justice system must be systematic and fair and that this systematic fairness necessitates reasonable consistency.

Commonwealth Sentencing Provisions

39. In sentencing an offender, the court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914 which provides procedural guidance on sentencing offenders who commit Commonwealth offences. In particular, the court must have regard to the matters set out in Section 16A. Part 1B is not intended to cover the field and is not intended to operate as a code.

40. Pursuant to section 16A(1) of the Crimes Act, any sentence that I impose must be of a severity appropriate in all of the circumstances. In doing so, I have had regard to all the matters referred to above, including those contained in section 16A(2) of that Act as are relevant and known to the court. I have also been guided by the approach of McHugh J in Markarian v The Queen [2005] HCA 25 at [51] and have had regard to the general principles identified by the High Court in Power v R [1974] 131 CLR 623.

41. In Hili v the Queen; Jones v the Queen [2010] HCA 45, the High Court made clear that a sentencing judge should, in Commonwealth matters, determine the minimum term to be served in accordance with Part 1B of the Crimes Act, together with the application of principles identified in Power.

42. Where the sentence of imprisonment imposed is more than three years, the court must fix a single non-parole period: s19AB.

43. Having regard to section 17A(1) of the Crimes Act, and after having considered all other available sentences, I am satisfied that no penalty other than imprisonment is appropriate in all of the circumstances of this case. No submissions were put otherwise.

44. In determining an appropriate sentence, I have kept in mind the legislative guidepost of the maximum penalty, which is 15 years, and the fact that there is no standard non-parole period for this offence.

45. After applying a 25% discount for the plea of guilty, I impose a head sentence of 2 years 3 months. Without the 25% discount, I would have imposed a sentence of 3 years. The sentence is backdated to commence on 21 June 2019, the date on which the offender was taken into custody. The offender is to be released on 20 September 2020 upon entering into a recognizance in the sum of $1000 without surety, with a further condition that he be of good behavior for the period of the recognizance order until 20 September 2021.

NSW Sentencing Provisions

46. I have taken into account the various purposes of sentencing under s3A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender’s rehabilitation, making an offender accountable for his or her actions, denouncing an offender’s conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions – especially given in my opinion the offender’s need for psychiatric review and ongoing rehabilitation, the former of which weighs heavily upon me in the sentencing exercise for this offence.

47. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:

The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.

48. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender’s subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances.

49. In determining an appropriate sentence I have kept in mind the maximum penalty of 10 years and I note the plea of guilty. I note that the offender has no prior criminal history. I observe that there are seven images only, and I note the description of them in the agreed facts. In my opinion, the s 5 threshold has not been crossed, and I am not satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. In my opinion, an order pursuant to s10A of the Sentencing Act is appropriate. I observe that the Crown and the offender’s counsel did not dispute that such a result was appropriate in all of the circumstances of the offending.

Orders

50. Mr McKeay, please stand.

51. I convict you of:

1. The offence of using a carriage service to procure a person under 16 years of age for sexual activity contrary to s 474.26(1) of the Criminal Code (Cth); and

2. The offence of possess child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW).

52. For the offence contrary to s 474.26(1) of the Criminal Code (Cth), I sentence you to a term of imprisonment of 2 years, 3 months. I backdate your sentence to 21 June 2019, the date you were taken into custody. The offender is to be released on 20 September 2020 upon entering into a recognizance in the sum of $1000 without surety, with a further condition that he be of good behavior for the period of the recognizance order until 20 September 2021.

53. For the offence contrary to s 91H(2) of the Crimes Act 1900 (NSW), I convict you, but find it expedient to impose no further penalty.

54. Pursuant to s 23ZD of the Crimes Act 1914 (Cth), upon the application of the Director of Public Prosecutions, the Black Computer Tower “Deep Cool” brand (exhibit number: X0003300284), is forfeited to the Commonwealth.

55. Mr McKeay, do you understand the orders that I have made?

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Decision last updated: 31 July 2020