R v PN

[2009] NSWDC 120

CITATION:	R v Shashank Singh [2009] NSWDC 120
JUDGMENT DATE:	19 May 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Sentence of 4 years imprisonment. Non-parole period of 2 years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Commonwealth offence - using carriage service to procure person under sixteen to engage in sexual activity - online chat room discussions - purpose of legislation - objective seriousness - prior criminal history - unsuitable for community service and periodic detention - offence committed while on good behaviour bond - evidence of remorse
LEGISLATION CITED:	Criminal Code 1995 s 474.26(1) Crimes (Sentencing Procedure) Act 1999
CASES CITED:	The Queen v Gajjar [2008] VSCA 268 R v Poynder (2007) 171 A Crim R 544
PARTIES:	R Shashank Singh
FILE NUMBER(S):	2008/10794
COUNSEL:	Mr Hancock (def)
SOLICITORS:	Mr Williams (NSWDPP)

JUDGMENT

1. I am sentencing Shashank Singh for a crime created under the laws made by the Australian Parliament. Section 474.26 of the Criminal Code 1995 of the Commonwealth creates an offence of using carriage service to procure persons under sixteen to engage in sexual activity. The offence is committed by a person who is an adult, namely someone over eighteen. Parliament has fixed a maximum penalty of fifteen years imprisonment to that crime.

2. It is important to set out briefly what happened that brought about Mr Singh’s conviction for this offence. He used a computer to enter an online chat room. In the chat room he commenced communicating with a person that he understood to be a fourteen year old girl. In fact the person was an undercover operative with the Australian Federal Police. That makes no difference to the person being able to commit the crime.

3. Over a period of a week or two he had online discussions with this person he understood to be a fourteen year old school girl. There were three significant discussions. In the first, which occurred on 3 April 2008, it was made clear to him that the person that he was dealing with was a fourteen year old girl. After about half an hour of commencing the communication he asked this person he thought was a fourteen year old girl what she thought about sex. She replied that she had never done sex before. He proceeded to immediately ask her about girls being sucked or their genitals being fingered or kissed. At the same time he enquired of the girl whether she was free to meet. He added that he liked girls’ breasts and indicated a desire to meet her.

4. The next extensive communication was on 7 April 2008. When I refer to the girl that is an expression which I use to encompass the fact that Mr Singh thought that he was communicating with a girl but it also encompasses the fact that it was an undercover police operative. The girl told him that she was in class and had been “busted big time” by her teacher for using a mobile phone text message in class. She repeated that she was fourteen years old. Mr Singh proceeded to ask her about whether she had seen any sex movies, she said “not really.” In response to a question about whether she had held a dick in her hand, she repeated that she had never been engaged in sex before. Mr Singh, later in the communication, asked whether the girl would like it if he sucked her in the nude and kissed her around her vagina and fingered it as well. During the same communication he asked her to do something for him at that very time. He asked her to remove her bra and to try to suck her nipple and he also encouraged her to masturbate herself. He repeated a request for a desire to meet with the girl.

5. The final extensive communication was on 11 April 2008. Early in the communication he raised the issue of meeting on that very day. He was reminded that she was fourteen years old. He asked her questions such as whether she had hair in her genital area. He also repeated his question about whether she had seen a sex movie and he was told by the girl “not really.” He then directed her to what appears to be a porn site and encouraged her to watch. It is then apparent - so far as he was concerned – that the girl was watching what was displayed on this porn site that he had given her the reference to. For example she responded when he asked what she could see on her screen “lot of naughty sex pics.” He encouraged her to watch one which he described as “a girl sucking dick.” He added a short time later “now ya know how to suck dick.” Then he encouraged her to “watch other one in which guy sucking girl’s pussy.” The girl asked questions which were obvious references to images of semen displayed on whatever it was that she was watching. The question suggested that she did not know what it was. Mr Singh proceeded to try to explain what it was.

6. Later on in the same communication he suggested that the two of them have a shower together and when she said that she was not sure because she had not done it before, he said for her not to worry because it was great fun and there was nothing wrong with it, adding that she should just have faith in him.

7. Before he could meet with this fictitious girl Mr Singh was arrested on 14 April 2008 and charged with this offence. He was charged after quite an extensive interview. The transcript of the interview discloses that Mr Singh acknowledged the communication between himself and the girl but he insisted that he did not know that she was fourteen, or at least did not accept her assertion that she was fourteen. His view was that what was wrong was actually engaging in sex with a fourteen year old without clearly acknowledging that what he had been doing online was also criminal.

8. After he was charged Mr Singh pleaded not guilty. After a trial before me and a jury the jury found him guilty and, if I did not do so at the time, I now convict him of the offence of using a carriage service to procure a person under sixteen for sexual activity against s 474.26(1)of the Criminal Code of the Commonwealth.

9. He has spent some one hundred and thirty-eight days in custody up till now. Mr Williams who appeared as Crown Prosecutor and Mr Hancock who appeared at the trial and on sentence for Mr Singh both agree that if I elect to sentence him to a period of custody - which I add both parties acknowledge is an appropriate sentence - and to backdate the sentence to take into account the time he has spent in custody, then the sentence should be dated from 2 January 2009.

10. It is important to make findings about the objective seriousness of this crime. I regard as significant that as part of the exchanges Mr Singh actually directed this person he thought was a fourteen year old school girl to open and view a website containing pornography. In addition, I regard it as serious that he was urging her to engage in sexual activity with herself.

11. Mr Williams, in his helpful written submissions, has pointed to a number of factors which demonstrate the objective seriousness of the offence. The difference in age was some fifteen years between Mr Singh’s age of twenty-nine and the age of the fictitious girl of fourteen. That is not as wide a gap as the gap in some other cases, but it is in my opinion a significant one. So far as Mr Singh was concerned he was over ten years into his adult life and the person that he was dealing with was some four years short of becoming an adult and still at school.

12. I accept the submission that what Mr Singh engaged in was a “sustained, persistent and calculated course of predatory conduct.” I think that submission is well founded so far as the evidence which I have referred to of the communication between Mr Singh and the girl. He was particularly persistent in his attempts to arrange a meeting.

13. I find that, as was submitted, the communications establish a willingness on the part of Mr Singh to corrupt someone who was sexually inexperienced. This is demonstrated in my opinion not only by his sexual references but in particular by his taking the girl to the porn site and encouraging her to masturbate. He has proposed specific sexual activity between them, namely that they should shower together.

14. On the other hand Mr Hancock who appears for Mr Singh draws my attention to aspects of the behaviour which indicate that its seriousness might be lessened somewhat. He points out, which is true, that this is not a case where a real fourteen year old girl has in fact been corrupted. The crime has still been committed but it would be far worse if the crime involved a real fourteen year old girl. Mr Hancock points out that there was no offer of money involved nor was his client’s computer found to have illegal or inappropriate material on it. Nor did he, the client, have with him any items when he was arrested which might have been used in sexual activity with the girl.

15. I think these are factors which do take the edge off - a little - the seriousness of the offending behaviour. But nevertheless I do regard the behaviour, in this case, as very serious. I think that it falls within the middle of the range of objective seriousness for this kind of offending but at the lower end of that range.

16. It is important to mention some personal features about Mr Singh himself. He was born in India and came to Australia to study. He is well qualified with university qualifications from India and he was undertaking a Master of Information Technology course at the University of New England in this State when he was arrested. He was not able to complete that course, although he had almost finished it, because of his time in custody. His student visa has been revoked and it is likely that he will be deported.

17. This is his first time in custody. When he went into custody after he was arrested he went on to protection after he had been assaulted a few days after going into gaol. He has since been on protection and therefore has limited time outside his cell. He only has a few hours rather than the eight hours which are normally allocated for prisoners to spend outside the confines of their cells.

18. He is one of a family of three and, as the son, is expected to look after his parents, one of whom, namely his mother, is not well. The presentence report which was tendered as part of Exhibit SB referred to a previous conviction which Mr Singh had. On 15 February 2008 he was in fact convicted of three offences. He received a Community Service Order for a common assault and another Community Service Order for an offence of stalking or intimidating a person. In addition to that he received a bond under s9 of the Crimes (Sentencing Procedure) Act 1999 of some eighteen months for contravening a personal protection order. This offence was therefore committed whilst he was on that good behaviour bond and that is an aggravating feature of his criminal behaviour.

19. The presentence report noted that he completed his Community Service Order in October last year but his performance was considered unsatisfactory. In fact his overall response to supervision on probation was referred to as unsatisfactory because he often failed to report and was reluctant to undertake the programs which were recommended. The report noted that Mr Singh admitted that the language he used was “in poor taste” and that he was very sorry for being found guilty. It would appear that Mr Singh failed to acknowledge that his actions were in fact criminal.

20. A little further on the report noted that Mr Singh appeared to have denied that his actions were wrongful and appeared to lack insight into the severity of his crime. The report thought that he would be suitable for a medium level of intervention by the Probation and Parole Service, although the Service held concerns regarding his ability to engage in treatment which would be offered if he was referred to the Forensic Psychological Service. This attitude was formed because of his reported level of denial and unsatisfactory response to supervision. The author of the report thought that he was unsuitable for either a Community Service Order or a Periodic Detention Order.

21. Mr Hancock acknowledges that the criminal history is an unfortunate aspect of Mr Singh’s presentation but highlights that he has not had a previous gaol term and his previous offending behaviour was in respect of an adult and that there was no sexual misconduct with children. Nevertheless I regard the previous convictions and sentences as relevant for a number of reasons. First Mr Singh committed this offence whilst he was on a good behaviour bond in respect of the previous sentences. That is a significantly aggravating feature. Next, the offences which he did commit involved an assault and stalking or intimidating persons; in other words they involved attempts to interfere significantly in the lives of another individual, something which he has undertaken on this occasion as well. In fact it also shows or is consistent with the predatory behaviour which he engaged in on this occasion.
22. Also in evidence before me is a letter from Mr Singh which provides information about himself and points out that he is fully sorry for what he has done and explains that he has learnt his lesson. He said he knows that what he did was stupid and wrong and he regrets it every minute every day. It seems to me that this displays a reasonable degree of remorse and is a little more encouraging than the observations in the report from the Probation and Parole Service. I have also taken into account his resume and educational history and a reference from a computer education organisation.

23. Mr Williams draws my attention to the sources of information about the purposes for creating this sort of activity as a crime. In the Explanatory Memorandum which accompanied the Bill, Mr Williams points to a passage which says that there “are two steps routinely taken by adult offenders leading up to a real life meeting between adult and a child victim that results in sexual abuse.” The Memorandum then goes on to point out that the first of the steps is that the adult wins the trust of the child over a period of time, often using chat rooms on the internet. It explains that paedophiles reportedly expose children to pornographic images as part of this, what is called a “grooming process.” The second step is that with the child’s trust won, adults often use the services to set up a meeting. Mr Singh has engaged in all of that activity.

24. When introducing into the Australian Parliament on 4 August 2004 the legislation which created the offence, the Parliamentary Secretary to the Minister for Finance Administration said the following:

“These new offences target adult offenders who exploit the anonymity of telecommunications services (for example, a ‘chat room’ on the internet) to win the trust of a child as a first step towards the future sexual abuse of that child. This abhorrent practice is known as ‘online grooming.’ The new ‘procurement’ offences will also target situations where an offender, having won a child’s trust, then uses a telecommunications service to orchestrate a meeting with the child so as to engage in sexual activity.”

25. Mr Williams has referred me to a number of decisions, both at first instance and at appellate level, which deal with this offence and similar offences under different legislation. He points out that the one which is probably most comparable to this case is a decision of the Victorian Court of Appeal in The Queen v Gajjar [2008] VSCA 268. In that the case the Court of Appeal dismissed an appeal from a sentence of two and a half years with a release date of eight months emphasising the importance of general deterrence in cases such as this. In that instance the offender had pleaded guilty and had prior good character.

26. Mr Williams also referred to R v Poynder (2007) 171 A Crim R 544 which is a decision of the New South Wales Court of Criminal Appeal. The court in that case again emphasised the importance of sentencing judges making an example to others of people who have committed this type of crime. As Rothman J said, Parliament “is seeking to implement society’s abhorrence of the practice of inducing children to engage in inappropriate sexual behaviour.”

27. Mr Hancock correctly points out that this will be a continuation of his client’s first spell in custody and that he will be serving the time on protection which will make it harder for his client. As I said, neither party suggests that a penalty other than fulltime imprisonment would be appropriate.

28. Having regard to the finding which I have made as to where this offence lies so far as its objective seriousness is concerned, I would regard an overall sentence of some five years as appropriate. Because of a degree of remorse, but particularly because the sentence will be served in the more confined or restricted circumstances of protection, I would reduce that sentence to four years imprisonment. I regard a non parole period of two years as appropriate.

29. Stand up Mr Singh. For the crime of using a carriage service to procure a person under sixteen for sexual activity, I sentence you to four years imprisonment. I fix a non parole period of two years. The sentence and the non parole period both to date from 2 January 2009. The sentence therefore expires on 1 January 2013 and the non parole period expires on 1 January 2011.

30. Mr Singh, for the reasons that I have explained I have decided that a four year gaol term is appropriate and I fixed a non parole period - which is the time you have to spend in gaol - of two years. I have backdated it to take into account the time that you have already had in custody, so that is why the sentence commenced on 2 January this year even though you were at large. So the sentence starts on 2 January and finishes on 1 January 2013 but the non parole period that you have to be in gaol starts on 2 January and will finish on 1 January 2011 when you will be eligible for release. Do you understand that?

OFFENDER: My visa is not - what happen after 2011 January because I--

HIS HONOUR: So far as your as your visa is concerned?

OFFENDER: Yes.

HIS HONOUR: I don’t know the answer to that because that will depend upon the Department of Immigration and Mr Hancock might be able to give you some advice about that, but I myself do not know. I just have to be sure you understand the sentence I have imposed started on 2 January this year and the non parole period component finishes on 1 January 2011, do you understand that?

OFFENDER: Yes.

HIS HONOUR: Mr Hancock will explain to you about the visa.

HANCOCK: I will your Honour, I don’t think I have all the answers but at least I will explain to him what is likely to happen.

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