R v Nahlous
[2013] NSWCCA 90
•18 April 2013
Court of Criminal Appeal
New South Wales
Case Title: R v Michel NAHLOUS Medium Neutral Citation: [2013] NSWCCA 90 Hearing Date(s): 18 April 2013 Decision Date: 18 April 2013 Before: Hoeben CJ at CL at [1];
Davies J at [2];
Adamson J at [3]Decision: Appeal dismissed
Catchwords: CRIMINAL LAW-Crown appeal against sentence-manifest inadequacy- whether grooming offences require a custodial sentence in all cases -sentence to reflect seriousness of particular conduct-remarks on sentence ought be read as a whole-meaning of 'victim' under s 16A(2)(d) Crimes Act (Cth) in the context of offence charged-does not extend to family of victim of grooming offences Legislation Cited: Crimes Act 1914 (Cth), s 16A, s 16A(2)(d), s 16BA
Criminal Appeal Act 1912, s 5D
Criminal Code Act 1995 (Cth), s 474.26(1), s 474.27, s 474.27A
Crimes (Sentencing Procedure) Act 1999, s 28, s 28(4)Cases Cited: Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33
DPP v John Francis O'Reilly [2010] VSC 138
DPP v Rodriguez [2012] VCC 1216
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Elliott v Harris (No 2) (1976) 13 SASR 516
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
R v Anderson [2012] NSWCCA 175
R v Asplund; Asplund v R [2010] NSWCCA 316; 216 A Crim R 48
R v Burdon; Ex parte Attorney-General (Qld) [2005] QCA 147; 153 A Crim R 104
R v David Wayne Budd (District Court, 2 October 2007, Charteris DCJ, unreported)
R v Fuller [2010] NSWCCA 192
R v Rampley [2010] NSWCCA 293
R v Zamagias [2002] NSWCCA 17
R v Zhu [2013] NSWSC 127
Tector v R [2008] NSWCCA 151; 186 A Crim R 133
Western Australia v Collier [2007] WASCA 250; 178 A Crim R 310Texts Cited: House of Representatives, Parliamentary Debates (Hansard), 4 February 2010 Category: Principal judgment Parties: Regina
Michel NahlousRepresentation - Counsel: Counsel:
S McNaughton SC and J Roy (Crown)
S Stanton (Respondent)- Solicitors: Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Thomas Booler & Co (Respondent)File Number(s): 2011/294151 Decision Under Appeal - Before: Nicholson DCJ - Date of Decision: 15 June 2012 - Court File Number(s): 2011/294151
JUDGMENT
HOEBEN CJ at CL: I agree with Adamson J.
DAVIES J: I agree with Adamson J.
Introduction
ADAMSON J: Pursuant to s 5D of the Criminal Appeal Act 1912, the Director of Public Prosecutions (Commonwealth) (the Director) appeals against what he asserts to be the manifest inadequacy of sentences imposed upon the respondent by Nicholson DCJ in the District Court, on 15 June 2012.
The respondent pleaded guilty to one count of using a carriage service at North Rocks between 31 August 2011 and 5 September 2011 with the intention of grooming the recipient under the age of 16 years for sexual activity (Criminal Code Act 1995 (Cth) s 474.27) and five matters on a Commonwealth schedule under s 16BA of the Crimes Act 1914 (Cth) of using a carriage service to send indecent material to a person aged less than 16 years (Criminal Code Act s 474.27A(1)) which were said to have been committed on 1, 2 ,3, 4 and 5 September 2011.
The maximum penalty for an offence under s 474.27 is 12 years imprisonment and for an offence under s 474.27A is 7 years imprisonment.
Nicholson DCJ sentenced the respondent to imprisonment for 18 months, which was fully suspended on condition that he entered into a recognisance release order of three years' duration to be of good behaviour and to be supervised by Probation and Parole.
The Director contends that, in all of the circumstances, the order that the sentence be wholly suspended rendered it manifestly inadequate (ground 1). He also contends that the sentencing judge failed to give due regard to specific deterrence (ground 2) and the victim impact statement of the victim's mother (ground 3) and that, accordingly, the sentencing discretion miscarried and should be re-exercised by this Court.
The facts
A detailed statement of agreed facts was put before the sentencing judge, as was a schedule of the Facebook messages which were, largely, the subject of the offending behaviour.
The victim was, at the time of the offending, a 14-year old girl who lived across the road from the 31-year old respondent. The victim invited the respondent to be her Facebook friend in late August 2011. There were also communications between them by phone and text message.
Early in the communications, on 31 August 2011, the respondent and the victim asked each other's age and each responded truthfully. The respondent used his real name. The Facebook photograph he used was apparently contemporary. After the revelation about their respective ages, the respondent sent the following messages (to each of which the victim responded):
"yes u look older but u look good lol...u r beautiful as well ... if ur not comfortable chatting with me bcos of my age I do understand u .. I jst want u to b comfortable that's all .. friends sounds good ... till u grow up another 5 years lol".
On the same day 31 August 2011, the respondent impressed upon the victim the need for secrecy in the following messages (to each of which the victim responded):
"does [your parents] know u talking to me? ... kool we talk here on chat or by inbox k ... ur parents not to know is that k with u we r friends on facebook no big deal."
The content of the messages began as social chat but soon developed a sexual element. The respondent referred to kissing, kissing involving tongues, French kissing and the victim being sexy and hot. He asked the victim whether she wanted to kiss him in the morning, whether she wanted help showering, whether there might be "sexual things" between them, whether the victim has seen a penis "in life" and if so whether she touched it and where this took place. He also expressed a desire to kiss and hug her, see her and touch her "arse".
The respondent continued to encourage the victim to keep their communications secret. Examples include:
"make sure but u dnt tell anyone bout us- that we r talking."
"Make sure that no one know that we talk together dnt trust no one."
"cos I dnt want u to b in troublr [sic]
u look great and so beautiful"There are a few instances when a meeting is referred to. On one occasion when the victim expressed a wish to meet the respondent he responded:
"it will work but not now
maybe in 4 to 5 years"On another occasion he responded to such a suggestion in the following terms:
"I do like u
We will talk face to face but no now
In the right time"The high point of a suggested meeting appears in the following message from the respondent:
"I AM ALONE AT HOME COME SO I CAN KISS U
LOL
HEHEHEHE"There are exchanges about what time the victim plans to leave for school and when the respondent plans to leave for work on particular days and what they will do if they see each other. The plan is to wave at each other, unless there are others around in which case they will not.
During the online communications of Thursday 1 September 2011 the respondent and victim conversed about having an arm wrestle with the respondent stating (pp 14-15):
"if u win kiss me and if I win I kiss u ... but not on the cheek ... I am sure u wont mind to kis me ... of course I am sure cost u wont let me stop ... mmmmmm I would be able to taste ur lips and ur tongue."
In that communication the respondent further stated:
"- will u like to kiss me;
- u cute yes I wana kiss u and hug u;
- ur r hot and so sexy;
- ur r so hot ... I am serious, ill kiss u anytime, I like ur type u r so hot and sexy I am serious
- u r so hot no lie, do u like to kiss me? b honest; and
- ...I like u ... or I wouldn't look at u and keep showing u that I am looking at u."In continuing this conversation the respondent said (p 19), "its not embarrassing, what time u leave home". The victim asked: "why do you wanna now?" to which the respondent replied, "cos I want to know ... to see u and see me". The respondent then reminded the victim, "make sure but u dnt tell anyone bout us that we r talking ... and if we r outside and lots of people out dnt have to say hi if there is people outside we pretend we dnt know each other?
Further the respondent asked the victim whether she was in bed (to which he stated "mmm nice") and what she wears to bed. The victim replied that she wears a bra and undies to which the respondent said:
"wow it's a turn on ... sexy ... is so hot ur body u have a sexy bum ... u r all sexy and hot" (p 21).
The victim asked the respondent:
"do you feel weird that your like 16 years older than me? or have you done this before?" and he replies: "no it's the 1st time, I dnt feel weird dnt know why cos I dnt think bout the age between u and me, I have young heart, do u feel weird?".
The respondent then brought the conversation back to the topic of the victim's undergarments stating:
"do u wear normal undies ... mmm so hot, ur undies, r u wearing a bra ... well you have a sexy breast by the way ... hot tits and when I see u cos u always wear sexy tops, thy showed ... what size urs lol" (pp 24-25)
The victim appears to be offended by these questions, stating: "omg, did you really just ask that?"
Mobile telephone numbers were exchanged during this communication on 1 September 2011 and the respondent then offered to purchase credit for the victim's phone. Subsequent to the exchange of numbers, they also communicated by text message and telephone conversations.
During online communications on Friday 2 September 2011, the respondent continued to converse with the victim in a sexual context stating, "...r u slow when u kiss as well; p ur tongue is long by the way mmmmmm ;p ... I want ur tongue ;p ...Do u want my tongue; p?"
The respondent re-engaged in further communications with the victim inquiring about her intentions and stated ( p31): "I wana kiss u 1st if u dnt mind ... do u wna kiss me, french kiss ... do you wana try it, up to u, its k if u don't want :O". He later told the victim that there was no rush. On 3 September 2011 he asked her if she might fall in love with him.
During online communications on Sunday 4 September 2011, the respondent engaged the victim in conversation about her and her friends' sexual behaviour in the following terms:
"relationship ... serious of for fun ... for fun as sexual relation ... like how sexual ... jst asking, so ur not into that stuff like ur friends ... u will only do that in a serious relation?"
The victim responded by saying:
"umm I'm only 14 so not at the moment".
They also engaged in conversation about the victim cleaning her bedroom:
"...if I am helping u we might end up in bed lol ... of course I will keep u warm".
Further into the conversation the respondent stated:
"what r u wearing ... do u need help [showering] ... [I'm] naked ... have you seen a guy thing ... have u see a guy thing in life? ... a dick?"
This conversation continued for some time with the respondent asking the victim specific details such as whether she touched the penis that she saw, whether the individual asked the victim to touch it and where this took place.
The conversation then again returned to the respondent inquiring about what underwear the victim is wearing and what colour. The respondent then reminded the victim to keep their communications secret:
"make sure that no one know that we talk together/dnt trust no one ... cos I dnt want u to b in troublr".
On Monday 5 September 2011 communications continued with the respondent again making sexually inappropriate comments, such as:
- Ur voice is so sexy;
- kiss me, on my mouth; and
- how was the sexual class today.Between 30 August and 5 September 2011 there were 1,712 online communications between the respondent and the victim and an indeterminate number of instant chat messages. The sentencing judge found that there was no evidence of any suggestive or pornographic material passing from the respondent to the victim during telephone conversations
The police became aware of the communications and applied for a search warrant which was executed at about 6.45 am on 9 September 2011. The respondent's laptop and mobile phone were seized. He was arrested and charged and released on bail. He complied with bail conditions up until the sentence. From the date of sentence he has complied with his conditions of parole.
The respondent's personal circumstances
In the sentencing proceedings, the respondent gave oral evidence and tendered reports of Tim Watson-Munro, consultant forensic psychologist, and an array of testimonials as to his character.
The respondent, who was born in Lebanon in July 1980, is now almost 33 years old. He completed his secondary eduction in Lebanon and obtained trade qualifications as an electrician. He first came to Australia on a tourist visa in 2005 for about three months. He met his now former wife and married, which permitted him to stay in Australia. He obtained two jobs and worked seven days a week with a view to buying a house as soon as possible.
In about 2007 his wife was diagnosed with bowel cancer which metastasised. She was treated with surgery and chemotherapy. After her initial treatment she returned to Lebanon for about a month. On her return to Australia she informed him that she no longer wished to be with him and that she planned to return to Lebanon to live with her parents. She withdrew $70,000 from their joint bank account, leaving a balance of $15,000.
The respondent has a cousin and an uncle who live in Sydney but otherwise his family lives in Lebanon. His isolation from his country of origin made it more difficult for him to cope with the separation from his wife and his loss of hard-earned savings.
He worked harder to compensate for his social isolation. In 2010 he purchased a mobile franchise to supply whitegoods for a particular manufacturer in the northern beaches suburbs of Sydney. He works 12-hour days making $5,000-$7,000 monthly. He is interested in sport including football and cycling. He has done some charity rides.
According to Mr Watson-Munro, at the time of the offending, the respondent:
"...was in a parlous frame of mind with him suffering chronic anxiety, depression, a substantial diminution in his self esteem and in exacerbation of the adjustment issues referable to his emigration. The primary diagnosis in this case is chronic anxiety integral to an Adjustment Disorder. He acknowledged in this context his judgment faltered and attendant to his loneliness he then established contact with the victim over the internet."
Although the respondent has told his uncle and cousin of the offending, he has not told his family in Lebanon, because of a desire to protect them from the trauma.
Mr Watson-Munro's unchallenged assessment of the respondent appears from the following passage in his report of 11 May 2012:
"When seen Mr Nahlous was well oriented in time, place and person with no indications of gross psychiatric disturbance such as delusions of reference, formal thought disorder or auditory or visual hallucinations. Equally so notwithstanding the context of the charges beyond his offending itself, there was nothing to suggest an innate propensity towards abhorrent sexual activity and in every other respect he presents as an essentially pro social individual who has worked very hard to extablish a life in Australia. It is further apparent that his self esteem has been dramatically affected by what has occurred in relation to his criminal activity."
The sentencing proceedings
As noted above, the sentencing proceedings were heard in May 2012. The respondent gave evidence and was cross-examined. He explained the offending in the following terms:
"I was feeling- I had breakdown marriage [sic], I was feeling lonely and I needed company to talk to but that was so wrong."
He described his conduct as "very wrong and very ugly". He said on oath:
"I feel sick and ashamed for myself. When I try to read it, I really can't. I start shaking and crying, that's so wrong, I should not have done that."
"I feel sorry for the victim and her family and I understand how hard it's been. I'm really sorry."The respondent readily agreed in cross-examination that he had asked the victim to keep the communications secret, that he had initiated discussions of a sexual nature and that it was inappropriate to tell a 14-year old girl that she was "hot and sexy".
The Crown provided the sentencing judge with detailed written submissions, together with references to, and copies of, previous authorities concerning penalties for such offences. The Crown expressly, both in writing and orally, and forcefully urged that the only appropriate sentence was one of full time custody. Counsel for the respondent did not accept that proposition and submitted that a sentence of imprisonment ought be imposed but suspended.
The sentencing judge sought the Crown's response to the proposition that any sentence should be suspended. The Crown restated, with considerable emphasis, the proposition that any sentence that did not involve full time custody would reflect appellable error because of the need for the sentence to contain a significant element of general deterrence. For that reason, the Crown opposed the continuation of bail. However, when the sentencing judge reserved his decision and indicated that he had not yet decided whether the sentence would involve full-time custody, bail was continued on the same conditions.
The Remarks on Sentence
The Remarks on Sentence were made on 15 June 2012. His Honour recounted the offence charged and the schedule offences before referring to s 16A of the Crimes Act 1914 (Cth) which lists the matters to be taken into account when sentencing for a Commonwealth offence. The sentencing judge addressed so-called grooming offences and identified the statutory purpose of s 474.27 and s 474.27A by reference to the Explanatory Memorandum and the Second Reading Speech to the Bill (Hansard, Parliamentary Debates, 4 February 2010) that introduced those offences to the Criminal Code.
His Honour found that the period of grooming was confined to six days of intense interchange, which was relatively short compared with other cases referred to. The sentencing judge noted that the respondent did not seek to rely on anonymity, was frank about his age and knew of the victim's identity because she was his neighbour. His Honour found that their proximity was a feature of aggravation because of its potential for menace, although the respondent neither sought, nor intended menace. His Honour found that the respondent had scrupulously complied with the personal violence order which the victim had obtained. His Honour also found:
"The content of the sexually enticing material before me is not lurid or graphic, no pornographic material was communicated to her or sought by him from her."
The sentencing judge noted the escalation in sexual innuendo and found:
"He was increasing his own prospects of sexual activity with the girl from the impossible to the remote and then to the non-repulsive status, hoping to reach the possible and then the probable."
Nonetheless his Honour noted that it was "still very early days" and that there had been no talk of pursuing sexual activity while they talked or any attempt to set up a meeting. His Honour referred to the respondent's requests for secrecy, with which the victim complied. The sentencing judge considered that the objective seriousness of this offence would be lower than all other cases to which he was referred except R v David Wayne Budd (District Court, 2 October 2007, Charteris DCJ, unreported) (Budd) which was distinguishable because although there was only one contact by internet, the interchange was far more sexual and graphic than in this case.
His Honour made reference to the victim impact statements from the victim and her mother. He reproduced the victim's statement in full in the Remarks on Sentence. His Honour referred to the purpose of such statements.
His Honour then addressed subjective matters and made findings about the respondent which largely correspond with those set out above. His Honour found that his current depression and anxiety were caused by his separation from his wife, his loss of self-esteem resulting from the unlawful grooming and his fear of the outcome of the sentence proceedings.
His Honour noted that the respondent became an Australian citizen in January 2012 and that he has no prior convictions. He found the respondent to be a person of good character within the community who appeared to have insight. He acknowledged his guilt from the outset and has been willing to be held accountable for it. His Honour referred to his strong work ethic.
His Honour referred again to the checklist in s 16A of the Crimes Act. He emphasised the need for general deterrence which required that a term of imprisonment be imposed. His Honour specifically referred to the plea of guilty and contrition and found that there was no need for personal deterrence. He said:
"The criminal justice processes from charging to sentence appear to have had a very profound effect upon the offender."
The sentencing judge considered Budd in detail because in that case the sentence imposed was suspended.
His Honour's reasons for suspending the sentence in Budd were:
"The offender has not been in full-time custody before. It is now well-recognised prison is counter productive to rehabilitation. Its best, and it seems to me, primary use is incapacitation and also for punishment. I wish to make it clear I regard some level of punishment as being desirable. But I think that can be achieved by demanding conditions on a recognisance release order. I have determined that the sentence will be suspended."
The term of imprisonment was 18 months and the duration of the recognisance release order was three years. Its terms are that the respondent be of good behaviour, accept supervision by Probation and Parole and that he attend a professionally qualified sexologist or sexual assault counsellor for at least nine sessions and thereafter until both the professionally qualified sexologist and his case manager are satisfied that he no longer represents any danger to any member of the community.
The Crown Appeal
The grounds of appeal are:
(1) The sentence is manifestly inadequate;
(2) His Honour erred in failing to give due regard to specific deterrence; and
(3) His Honour erred in failing to give due regard to the victim impact statement of the victim's mother.
Ground 1: manifest inadequacy
The Crown submitted that the sentence was manifestly inadequate, in substance, because the respondent was not required to spend any time in full-time custody.
It referred to various decisions in which offenders had been sentenced to custodial sentences for offences under these provisions. It referred to Tector v R [2008] NSWCCA 151; 186 A Crim R 133 at [85] (Tector) where this Court identified the mischief to which the provisions were directed by setting out the following extract from the Explanatory Memorandum:
Proposed sections 474.26-474.29 contain an offence regime targeting adult offenders who exploit the anonymity of telecommunications services (for example, the Internet) to win the trust of a child as a first step towards the future sexual abuse of that child. The practice is known as 'on-line grooming'.
The Crown also referred to R v Asplund; Asplund v R [2010] NSWCCA 316; 216 A Crim R 48 (Asplund) at [50] where this Court said:
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.
The principal judicial statements on which the Crown relied in support of its contention that a custodial sentence was required in the instant case appear in Western Australia v Collier [2007] WASCA 250; 178 A Crim R 310 (Collier):
[43] . . . Anything less than an immediate term of imprisonment does not take sufficient account of the seriousness of the respondent's offending behaviour or of the need to deter him, and others, from committing offences of this kind in the future. It is important to say, as clearly as one can, that adult persons who make use of the internet to locate, and make contact with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment. As with offences concerning possession of child pornography . . . there is a paramount public interest in protecting children from sexual abuse.
. . .
[47]. . . [T]his is a case in which it is necessary to impose a sentence of imprisonment to be served immediately. Anything less would significantly undervalue the seriousness of the appellant's offending behaviour and the need for a deterrent sentence. However, in the light of the considerations to which I have referred, and taking into account that this is a State appeal, it is appropriate to impose a lesser sentence than that which would otherwise have been merited for offending of this kind.
The Crown also highlighted the need for general deterrence and submitted that the suspended sentence did not have sufficient regard to that factor, although it conceded that the sentencing judge had addressed that factor in his reasons.
The Crown relied on the circumstance that the victim was a real 14-year old girl rather than, as in other cases, an undercover police officer posing as a child, as well as the physical proximity between the respondent and the victim. It contended that the respondent's conduct ought not be regarded as less heinous because he adopted a rather more romantic approach than other offenders, since this technique was more insidious and likely to be more effective when applied to a 14-year old girl than less subtle attempts at grooming.
The Crown also submitted that the sentence did not reflect the gravity of the schedule offences although it accepted that his Honour had expressly taken them into account.
The Crown addressed comparative sentences imposed for offences under these sections and noted that there had been relatively few cases where a non-custodial sentence had been imposed for such offences.
The respondent sought to distinguish the authorities relied on by the Crown and submitted that no error had been demonstrated.
Reasons
The statutory offence to which the respondent pleaded guilty and the schedule offences are unquestionably serious. There is a significant public interest in protecting children from conduct that inappropriately sexualises them at an age where they are ill-equipped to protect themselves or respond either appropriately or in their own interest. The respondent's conduct fell within the statutory provisions. He has acknowledged his guilt.
Sentencing is a matter of discretion and judgment. The objective seriousness of the offence or offences actually committed by the offender, as well as subjective circumstances, each play their part. The public mischief which the statutory amendments that introduced the offences and made such conduct criminal is a serious and substantial one. However that, of itself, does not have the consequence that every sentence imposed on every offender must reflect the general seriousness of such offences, as distinct from the particular crime committed by the particular offender. Nor does the potential for the offending conduct to escalate, had the police not intervened to prevent it, mean that it would be just to impose a sentence on the basis of what might, but would not necessarily, have occurred, but for their intervention.
Comparative sentences
Having regard to the emphasis placed by the Crown on comparable sentences that have recently been imposed I propose to address such sentences. However, I do so in the light of what the High Court said in Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520, at [54] about the limitations of such an analysis and the need to consider the whole of the circumstances that have given rise to each sentence.
In Asplund McClellan CJ at CL set out the details of eight appellate and first instance decisions at [20], all of which involved sentences of full-time custody. In Asplund itself, the Crown appeal was allowed, and the custodial sentence was increased.
In addition to the cases referred to in Asplund, the Crown referred to R v Fuller [2010] NSWCCA 192 at [32], a Crown appeal against a sentence imposed for a procuring offence. The offender was a Catholic priest who pleaded guilty to one count contrary to s 474.26(1) of the Criminal Code. Over a period of three weeks he engaged in 13 online communications with a female person who was using an assumed identity as a 13-year-old girl. He initiated topics of conversation of an explicit and sexual nature, and instructed and encouraged the online identity to masturbate herself. On occasions he activated his web camera and transmitted live video images of himself exposing and masturbating his penis. A meeting was arranged and he was arrested near the proposed meeting place. The offender was sentenced to fixed term of imprisonment of six months. The Court found that notwithstanding the plea of guilty, remorse and good prospects of rehabilitation, a more significant sentence was required. By the time of the Crown appeal, the original sentence had been served. In the exercise of the Court's discretion, no further term of incarceration was imposed, but the overall term was extended to 12 months, with a period of supervision for the offender.
In R v Rampley [2010] NSWCCA 293, this Court refused the offender's appeal against a custodial sentence (2 years and 9 months to be released on recognisance after serving 1 year and 6 months). The facts involved sexually explicit chats with a police officer posing as a 12-year-old girl. The offender was 33 years old with no prior convictions.
In DPP v Rodriguez [2012] VCC 1216, the Victorian County Court imposed a custodial sentence, even though it involved the lesser offence of using a carriage service to cause offence, for which the maximum penalty was three years' imprisonment.
There are few cases where a non-custodial penalty has been imposed for offences of this type, including, R v Burdon; Ex parte Attorney-General (Qld) [2005] QCA 147; 153 A Crim R 104 (Burdon). However, as noted in Tector at [70] - [71], the sentence imposed in Burdon should be understood in light of:
(i) The maximum penalty of five years imprisonment.
(ii) The prosecutor's submission to the sentencing judge to impose a term of imprisonment of 18 months suspended after three months.
(iii) The offender's early plea of guilty and co-operation with the authorities.
(iv) The medical and psychological evidence that support a low risk of re-offending and the offender having embarked on his own rehabilitation.
(v) The medical evidence that, at the time of the offence, the offender had been devastated and overwrought by the death of his father.
(vi) The offender's unblemished record in the community.
(vii) The fact that the offender had completed 240 hours of community service in an exemplary manner, and the fact that the matter was still hanging over him with resultant public notoriety since arrest.
The objective seriousness of the offences
In Tector this Court said, at [85]:
"There are two steps routinely taken by adult offenders leading up to a real life meeting between adult and child victim that results in child sexual abuse:
(i) The adult wins the trust of a child over a period of time. Adults often use 'chat rooms' on the Internet to do this. They may pose as another child, or as a sympathetic 'parent' figure. Paedophiles reportedly expose children to pornographic images as part of this 'grooming' process. It is proposed to specifically criminalise this practice. Specific offences would remove any doubt about whether 'on-line grooming' of a child before actual contact is 'mere preparation' (ie, not a criminal offence) or an unlawful attempt to commit child sexual abuse.
(ii) With the child's trust won, adults often use telecommunications services to set up a meeting with the child. Although this step is more likely to be characterised as an attempt to commit child sexual abuse, than step (i), it is desirable to provide a firm justification for police action by enacting specific 'procurement' or 'solicitation' offences. This is consistent with the underlying rationale for the new offences: to allow law enforcement to intervene before a child is actually abused."The respondent's conduct did not fall within the typical pattern. The victim knew who the respondent was and where he lived when she invited him to be her Facebook friend. The respondent used his actual name and disclosed his actual age. Although he referred to sexual topics he did not send any images to the victim or refer to any sexual conduct of his own while they were communicating. No meeting was actually arranged. At times the respondent referred to the need to wait because of her age. Although the respondent once initiated the prospect of a meeting, it is not clear whether the suggestion was made in jest. That he rebuffed the victim's suggestions that they meet is another indication that he does not conform to the typical pattern.
The passages which are set out above from Collier that are relied upon by the Crown in support of its submission that a custodial sentence was required were made in the context of very different circumstances than the present case.
In Collier the respondent, a 24-year old man, engaged a police officer, posing as a naïve 12-year-old girl ('Amy'), in an on-line 'conversation' in an internet chat room. He subsequently communicated with her on-line again the following day, then a fortnight later and the following day. In the course of the second conversation the respondent told her how to masturbate and, so far as he knew, persuaded her to do so. A fortnight later there was a further sexually explicit on-line conversation in the course of which the respondent explained the nature of sexual intercourse and encouraged 'Amy' to meet with him so that he could have sexual intercourse with her. The following day, the respondent again instructed 'Amy' how to masturbate and thought she was doing so. In the course of this on-line conversation, he also arranged to meet 'Amy' (who reminded him that she was 12 years old) at a nearby park that afternoon. He went there at the appointed time and was arrested by police.
In these circumstances it can readily be understood why the Crown appeal was allowed in Collier and the statements were made to the effect that anything less than an immediate custodial sentence would have been inadequate.
The objective seriousness of the offences committed by the respondent in the instant case was considerably less than those committed in Collier. The purpose of general deterrence would not be enhanced by requiring a custodial sentence to be imposed in every case, regardless of the objective seriousness of the offence under consideration.
Subjective Matters
Further, the sentencing judge, having heard and seen the respondent give evidence, was satisfied of his contrition and his shame. These observations are entitled to weight: R v Anderson [2012] NSWCCA 175 at [4] per Allsop P and [56] per Davies J. There were substantial subjective factors which militated against a custodial sentence, including the respondent's acceptance of the wrongfulness of his conduct, his sympathy for the victim and her family, his work history, the disclosure he had made of his wrongdoing to those he knew in the Australian community and the substantial disruption to his life and his business which would be caused by requiring him to spend time in custody.
This Court has consistently emphasised that a suspended sentence is a sentence in its own right and ought not be regarded as no punishment at all: R v Zamagias [2002] NSWCCA 17 at [31]. As Bray CJ, (Bright and Zelling JJ agreeing) said in Elliott v Harris (No 2) (1976) 13 SASR 516 at 527, that view:
"... reveals an entirely mistaken and wrong-headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency."
I am not persuaded that the sentence imposed was manifestly inadequate. Indeed the sentencing judge's Remarks on Sentence and the terms of the recognisance release order show a careful consideration of the relevant factors, including the need for general deterrence and the harm that was done by the respondent's conduct.
A custodial sentence will be required in many cases involving offences against s 474.27 and s 474.27A. However, it is not always required. This case was, in my view, one in which a proper exercise of the sentencing discretion did not require the imposition of a custodial sentence.
Ground 2: failing to give due regard to specific deterrence
Specific deterrence requires a consideration of whether the offender is likely to re-offend. As referred to above, the sentencing judge was impressed by the respondent and in particular his early acknowledgement of guilt and sincere expression of remorse. His Honour imposed conditions on the recognisance release order which were designed to ensure that the respondent will never re-offend.
The foundation of the Crown's submission appears to be the following passage from the Remarks on Sentence:
"In this case there is no need for personal deterrence. The criminal justice processes from charging to sentence appear to have had a very profound effect on the offender."
[Emphasis added.]The Crown submitted that this so-called "finding" that there is no need for personal deterrence was an error since the respondent had not had any psychological treatment because of work commitments although Mr Watson-Munro considered that he required such counselling.
There is, in my view, no substance in this ground. It is apparent from a reading of the Remarks on Sentence as a whole that the sentencing judge was concerned about specific deterrence. Although his Honour was satisfied of the respondent's remorse and contrition he nonetheless made specific provision for counselling in the extensive terms provided for in the release recognisance order. These matters demonstrate the weight and consideration that was given to specific deterrence.
It is undesirable that a pedantic or semantic approach be taken to Remarks on Sentence, which must be read as a whole. I regard the sentence emphasised by the Crown as falling into the category of "verbal infelicities" which, as Kirby J said in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [65] "should generally be ignored".
Ground 3: failing to give due regard to the victim impact statement of the victim's mother
At the sentence hearing the Crown tendered two victim impact statements, the victim's and her mother's, both of which set out the effect of the offending on the victim. The latter also addressed the harm that had been done to the whole family, and in particular to the victim and her mother. The harm to the victim is a mandatory relevant consideration in determining the sentence to be imposed under s 16A(2)(d) (the personal circumstances of any victim of the offence) and (e) (any injury, loss or damage arising from the offence) of the Crimes Act.
His Honour referred to the victim impact statements as not being sworn and not being subject to cross-examination.
In the Remarks on Sentence his Honour also said:
"As to the mother's statement I have read it. I note that she speaks of it having a great effect upon both of her daughters. Unfortunately those who have advised her, assuming she was so advised, have failed to ensure that the statement was confined to the impact upon her. She has expressed views in this statement that she is perfectly entitled to hold but have no relevance to the criminal proceedings between the Director of Public Prosecutors and the offender. For that reasons I note those matters that are consequence of the offender's conduct, but I shall not be reading her statement as a secondary victim.
I should also indicate that this statement, that is the mother's statement does not constitute evidence against the offender. But what comes from her statement is that the emotional and psychological damage went beyond the child to include her mother and the other sister."
The Crown submitted that the Remarks indicated that the sentencing judge had not applied s 16A, but that rather he had adopted the approach prescribed for State offences.
Although there are differences between the statutory provisions that apply to sentencing for State and Federal offences, the Crown has not identified the relevance of any such difference. The sentencing judge was obliged to take into account under s 16A(2) the personal circumstances of any victim of the offence and any injury, loss or damage arising from the offence.
Section 28 of the Crimes (Sentencing Procedure) Act 1999 which applies to state offences specifically provides that victim impact statements may be received by the court and considered at any time between conviction and sentence. Section 28(4) relevantly provides that a court:
(a) must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and
(b) must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so.The first matter to note is that the provision expressly refers to "a family victim", thereby extending the class of victims from those that might be regarded as "primary victims".
Furthermore, the law applicable to victim impact statements tendered in sentence hearings for state offences has the effect that a person can only make a statement about the impact on the maker of the statement, as distinct from some other primary or secondary victim. There is no such limitation in the law governing Federal offences. His Honour may have been under the misapprehension that such a limitation was apposite in the instant case.
The question whether the term "victim" in s 16A(2)(d) is confined, in the instant case to the 14-year old girl herself or whether it comprehends her mother as well is a matter of statutory construction which also requires a consideration of the subject offence. The expression plainly includes the person who is being groomed. The question is whether it is apt to include the family, or in this case the mother, of that person.
There are Commonwealth offences where the categories of victims may be large, diffuse groups of people. For example, in R v Zhu [2013] NSWSC 127, Hall J, when sentencing an offender for insider trading offences, accepted at [203] the Crown submission that there were at least three classes of victims: the market, including the investing community at large; the offender's employers; and those who traded with the offenders who were not privy to the inside information. Statements to a similar effect were made in DPP v John Francis O'Reilly [2010] VSC 138 at [19]. Customs offences have similarly been regarded as having the community as a whole as a victim: Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33, [27].
The offences committed by the respondent are not, in my view, apposite to include a class of victims beyond the person being groomed. In this context I consider that the word "victim" in s 16A(2)(d) means the primary victim herself and not the loved ones of the victim, who may also suffer by reason of their feeling for the primary victim. Unlike the state legislation, s 16A does not introduce the concept of "family victim".
It follows from my view of the meaning of "victim" in the context of these offences is that, if his Honour took into account the harm to the mother, this was more than he was required to do under s 16A. If his Honour did not take such harm into account, there was no error because he was not obliged to do so by s 16A.
His Honour plainly took into account the harm to the victim herself to which the victim deposed in her own victim impact statement, which was admissible since the respondent neither objected nor required her for cross-examination.
When the sentencing judge observed that the victim's mother's statement "does not constitute evidence against the offender", his Honour was, in my view, saying no more than that the statement was not evidence, because it was not sworn and the victim's mother did not give oral evidence which would have subjected her to cross-examination.
I am not satisfied that there has been any error in the exercise of the discretion. Accordingly this ground has not been made out.
At the conclusion of the hearing of the appeal, this Court ordered that the appeal be dismissed. The foregoing are my reasons for my concurrence with that order.
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