R v Poynder

[2007] NSWCCA 157

Reported Decision: 171 A Crim R 544

New South Wales

Court of Criminal Appeal

CITATION:	R (Cth) v Poynder [2007] NSWCCA 157
HEARING DATE(S):	24/04/07
JUDGMENT DATE:	14 June 2007
JUDGMENT OF:	James J at 1; Rothman J at 90; Harrison J at 100
DECISION:	Crown appeal against sentence dismissed
CATCHWORDS:	CRIMINAL LAW - Criminal Appeal Act s 5D - Crown appeal against sentence - Cth Criminal Code ss 474.26 and 474.17
LEGISLATION CITED:	Crimes Act 1914 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Code Act 1995 (Cth) Legal Profession Act Queensland Criminal Code
CASES CITED:	Attorney General’s Application Under S 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146 House v R (1936) 55 CLR 499 Markarian v The Queen (2005) 79 ALJR 1048 R v Baker [2000] NSWCCA 85 R v Burdon [2005] QCA 147, [2005] 153 A Crim R 104 R v Campbell [2004] QCA 342 R v Hayes [2006] QCA 20 R v Holmes NSW District Court (Williams DCJ) 19 May 2006 R v Kennings [2004] QCA 162 R v McGrath [2005] QCA 463 R v Meehan 21 July 2006 (2007) VCC R v Wall [2002] NSWCCA 42
PARTIES:	R (Cth) v Michael John Poynder
FILE NUMBER(S):	CCA 2006/2905
COUNSEL:	P Roberts SC (Crown/applt) A Haesler SC (Resp)
SOLICITORS:	Commonwealth Director of Public Prosecutions - (Crown/applt) Legal Aid Commission of NSW (Resp)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0788
LOWER COURT JUDICIAL OFFICER:	Norrish DCJ
LOWER COURT DATE OF DECISION:	7 December 2006

IN THE COURT OF

2006/2905

JAMES J
ROTHMAN J
HARRISON J

THURSDAY, 14 JUNE 2007

R (Cth) v Michael John POYNDER

Judgment

1 JAMES J: This is an appeal by the Commonwealth Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act against sentences imposed on the respondent Michael John Poynder by his Honour Judge Norrish in the District Court on 7 December 2006. For each of two offences under s 474.26 of the Criminal Code Act 1995 (Cth) (“the Criminal Code”), to which the respondent had pleaded guilty, Judge Norrish imposed a sentence of imprisonment for three years commencing on 15 June 2006, the date on which the respondent had been taken into custody, and made a recognizance release order that the respondent be released at the expiration of one year three months of the term of imprisonment, that is on 14 September 2007, upon his entering into a recognizance, subject to conditions including that the respondent be of good behaviour for a period of three years from that date and accept the supervision and guidance of officers of the New South Wales Probation and Parole Service for a period of two years after his release. In sentencing the respondent Judge Norrish took into account, pursuant to s 16BA of the Crimes Act 1914 (Cth), two offences under s 474.17 of the Criminal Code.

2 Part 10.6 of the Criminal Code — “telecommunication services” was inserted in the Criminal Code by Act 127 of 2004 and came into effect on 1 March 2005.

3 Section 474.26(1) of Pt 10.6 of the Criminal Code provides:-

“(1) A person (the sender ) commits an offence if:

(a) the sender uses a carriage service to transmit a communication to another person (the recipient ); and
(b) the sender does this with the intention of procuring the recipient to engage in, or submit to, sexual activity with the sender; and
(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the sender is at least 18 years of age.

Penalty: Imprisonment for 15 years. “

4 Section 474.17 in Pt 10.6 of the Criminal Code provides, so far as is relevant:-

“A person is guilty of an offence if:
a) a person uses a carriage service; and
b) a person does so in a way (whether by the method of use were the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances,…offensive.
Penalty: Imprisonment for 3 years”

5 The maximum penalty under s 85ZE of the Crimes Act, which was in somewhat similar terms to, and was replaced by, s 474.17 of the Criminal Code, was imprisonment for 12 months.

6 It was common ground in the proceedings on sentence and on this appeal that, for the purposes of the Criminal Code, “carriage service” includes a telephone service.

7 The Crown appeal against the sentences imposed by Judge Norrish was brought on 22 December 2006. A notice of an application by the respondent for leave to appeal against the sentences was filed but was not proceeded with.

Facts of the offences

8 A lengthy statement of the facts of the offences was admitted, without objection, in the proceedings on sentence and formed the basis of Judge Norrish’s statement of the facts of the offences in his remarks on sentence. In the Crown’s written submissions on this appeal it was accepted by the Crown that the facts of the offences (and also the circumstances of the respondent) were accurately and fully summarised by his Honour in his remarks on sentence.

9 I will now set out Judge Norrish’s statement of the facts of the two offences under s 474.26. The parts of the statement which I have placed in brackets do not appear in the statement of facts which was an exhibit in the proceedings on sentence and are comments added by Judge Norrish.

“A strike force was formed in April 2006 to investigate an allegation by a female informant, who was a prostitute, that the prisoner was intending to commit sexual assaults upon children. The woman told police she met the prisoner when he attended a massage parlour as a client. He discussed with her committing sexual acts on young girls and left his mobile phone number with her for her to make further contact with him. The woman was disturbed by this conversation and contacted the police, [which is much to her credit].

Subsequently a listening device was attached to her whilst she conducted conversations with the prisoner and telephone intercept warrants were obtained in relation to two telephone services used by him, his mobile number supplied by his employer and his home phone number. [It should be fairly said as the facts reveal that many of the conversations he had with the woman were not directed at matters that he intended to complete or perform, but were conducted by him for the purposes of his own sexual gratification.]

On 10 May 2006 the female informant in the presence of police telephoned the prisoner on his mobile phone and spoke to him and made arrangements to meet him at a cafe. On 11 May 2006 a meeting took place between the informant, wearing the listening device, and the prisoner. On this occasion the prisoner spoke about the idea of the two of them raping an eleven year old girl whose mother he had met. He also spoke of having raped another child. An arrangement was made for further contact. [There is no evidence that he had in fact raped a child or that he in fact intended raping an eleven year old child, the daughter of a woman that he knew.]

[Certainly the Court could not be satisfied of these matters on the available evidence, however it is clear as I said earlier that these conversations were for his deviant sexual satisfaction.]

On 16 May 2006 the female informant telephoned him on his mobile phone and this phone was recorded. Police investigations have revealed that the prisoner had made numerous phone calls to phone chat services in which he left recorded messages expressing a desire to have sex with children and animals. [He did this for his sexual gratification.] He also entered into live conversations with children and adults regarding these topics, [again for his sexual gratification] and these calls were recorded.

In relation to the first charge in time to which he pleaded guilty, the facts are that the prisoner contacted the Hot Gozzip Chat Service and spoke with a male person who the prisoner believed was under sixteen years of age for the purpose of initiating sexual activity with him. On two occasions the male person told the prisoner that he was fifteen years of age. The prisoner entered into sexual discussions with this person stating things such as, "Hi, how are you, do you have a nice hard cock", "How old are you?" and, "I like young boys".

The male person stated that he liked older men. The prisoner asked if he had ever been "fucked by older men" and stated that he "loves little boys". The prisoner obtained an address and a phone number from this person and arranged to meet him for sex at the male person's address. The prisoner immediately tried to call the male on the number supplied, however the prisoner had taken down the number incorrectly. The number given by the male was later found to be a disconnected number. [There is no evidence as to whether the male was in fact under sixteen, or not, but the prisoner believed him so to be.]

In relation to the second charge in time to which he pleaded guilty, again the prisoner contacted the same chat service on 15 June 2006 but on this occasion he spoke with a female undercover police operative conducting an operation. She introduced herself and said she was fifteen and wanted to have a talk. The prisoner sent the police operative a message stating that he was willing to pay her $100 if she performed fellatio upon him and $200 [for what I understand to be penile penetration of her vagina.]

After a number of voice messages were received, the undercover police officer stated that she had not performed fellatio before. She told the prisoner again she was fifteen but would only meet when her mother had left for work. She provided the prisoner with a mobile phone number stating the prisoner could call her in about twenty minutes after her mother left for work and twenty minutes later the prisoner called her and entered into further sexual conversations and arranged to meet her at an address in Redfern He told the undercover police operative during this period of time that his name was "David" and that he was from Surry Hills. He also asked questions about when the mother would be home. During other intercepted phone calls when the prisoner had arranged to meet adults for sex, he freely gave his true personal details but on this occasion he did not.

He was observed by police to go to the address given by the undercover police operative. He rang the intercom of the address given by the operative, and then rang her on the mobile phone asking where she was. It was at this point he was arrested by detectives attached to what I understand to be a New South Wales Police Service squad and he was taken to the Redfern Police Station. He was found to have in his possession condoms, lubricant and the sum of $236. He also had the address supplied by the operative written down on a piece of paper. He was transferred to the Surry Hills Police Station where he was interviewed. He declined to participate in an interview, as was his right, and he was charged. A search warrant was executed on his home address and a number of items were located.”

10 The first offence which was taken into account in the sentencing of the respondent was an offence committed by the respondent on 16 May 2006 in a telephone conversation with the female informant, which was intercepted by police. Judge Norrish in his remarks on sentence rejected some aspects of an account of this conversation by the respondent recorded in a report by a psychiatrist Dr Stephen Allnutt of 30 November 2006. Contrary to what was recorded in Dr Allnutt’s report, Judge Norrish found that there was no suggestion in the conversation of entrapment of the respondent by the informant and that the bulk of the offensive contents of the conversation came from the respondent. Judge Norrish summarised the contents of part of this conversation by saying:-

“The prisoner discussed with the woman the planning and preparation of the rape of a young child aged five. The prisoner indicated that he had organised a baby sitting job for a five year old girl that night, however the job had fallen through and he would organise a further baby sitting job where, as with the initial plan as discussed with the prostitute, he would tie the mother up and beat her whilst the five year old child was raped.”

11 Judge Norrish proceeded to comment:-

“Of course there is no evidence that the prisoner knew of such persons and it would appear on the evidence available to me I must accept that these conversations were fantasy on the part of the prisoner for his own sexual gratification.”

12 Judge Norrish added:-

“The detail however of the conversation is very disturbing indeed, even if it is an expression of flights of fancy rather than real situations proposed by the prisoner to the prostitute.”

13 The second offence which was taken into account in sentencing the respondent consisted of the making by the respondent of a number of telephone calls to the telephone Chat Service. In his remarks on sentence Judge Norrish said, with respect to this second offence to be taken into account:-

“Police covertly recorded approximately 540 calls on the land line of the accused to that particular service during the seventeen or eighteen day period disclosed in the charge. In these conversations the prisoner talked about sex with children, incest, bestiality, offering money for various forms of sex with children and boasting to his audience in a chat room at large that he was into “wild taboo things such as sex with children, incest, rape, animals” amongst other matters. He made other indecent suggestions to persons who he believed were children with whom he was communicating, both male and female. During some of these conversations he claimed to have had sex with his daughter and sex with his dog named “Rex”. He had neither a daughter nor a dog.”

14 His Honour commented about the telephone calls the subject of the second offence to be taken into account that they would be “greatly offensive to ordinary decent people and were the more offensive, if one took into account the age of the respondent and his belief that most of the persons he was speaking to would be under the age of 18 years”.

15 His Honour concluded that the additional offences demonstrated that the respondent’s actions in committing the principal offences were not spontaneous or impulsive.

16 After stating the facts of both the principal offences and the additional offences his Honour said that the commission to the principal offences, unlike the commission of the additional offences, went beyond expressions of fantasy for sexual gratification. In committing the principal offences the respondent had used a carriage service with the intention of actually procuring a person who he believed to be under 16 years of age to engage in sexual activity with him.

Subjective circumstances of the respondent

17 The respondent did not himself give evidence in the proceedings on sentence. There was, however, a considerable amount of evidence about the respondent before the sentencing judge, including the report by Dr Allnutt and long letters or statements from a Tasmanian legal practitioner, who is a senior counsel; a partner in a large Sydney firm of solicitors; one of the respondent’s brothers; and the respondent’s former wife.

18 The respondent was born in August 1955 in Tasmania and was accordingly 50 years old at the time of committing the offences.

19 He attended the University of Tasmania and graduated in law shortly before 1980. He worked for a Tasmanian legal firm from 1980 to 1992, being a partner from 1985 onwards. Judge Norrish found that while the respondent was a legal practitioner in Tasmania, he had “applied himself energetically and ethically to his work”.

20 In 1992 the respondent left the Tasmanian firm, of his own volition. He went to New York for a year. After his return from New York, he went to Sydney, where he obtained employment as a solicitor. In Sydney the respondent met a woman with whom he entered into a relationship and whom in about 1995 he married. The respondent and his wife separated in 2001 and early in 2006 the marriage was formally dissolved. Notwithstanding the breakdown of the marriage, the respondent’s former wife has visited him in prison and she wrote a letter to the sentencing judge supportive of the respondent.

21 In 1995 the respondent obtained employment as a solicitor with a large Sydney firm of solicitors. He progressively held positions as a solicitor, a senior associate and as a “special counsel”, although he did not succeed in becoming a partner. He was diligent, hard working and well regarded. While working for the firm, he prepared, on his own initiative, a proposal for indigenous law students to obtain work experience and part-time employment with the firm. After he was arrested, the respondent resigned his position with the firm and wrote a letter to the firm apologising for any embarrassment he had caused the firm.

22 In July 2006 the Legal Services Commissioner initiated complaints against the respondent, in accordance with the Legal Profession Act, that by reason of the conduct with which he had been charged, he was not of good fame and character, was not a fit and proper person to hold a practicing certificate and had brought the legal profession into disrepute. Judge Norrish sentenced the respondent on the basis that these complaints would be pursued and that the respondent would be found not to be a fit and proper person to hold a practicing certificate.

23 Judge Norrish found that in all the material about the respondent’s background from persons who had known him “he has never been observed to conduct himself in an inappropriate way towards friends, professional colleagues, family or children”. However, Judge Norrish found that the respondent was “truly a Dr Jekyll and Mr Hyde character” and that “the dark side of the prisoner’s personality was…never shown to those close to him”.

24 The respondent had no previous criminal convictions of any sort.

Further parts of the remarks on sentence

25 In further parts of the remarks on sentence the sentencing judge dealt with various matters.

26 His Honour stated that the principal offences were serious, both by reason of their character and by reason of the maximum penalty prescribed.

27 His Honour observed that “issues of general deterrence and personal deterrence loomed large in the sentencing exercise to ensure that persons who engage in this conduct are made an example of to others and to try and prevent further corruption of children and to ensure that the prisoner is prevented and/or deterred from such conduct or even considering such conduct in the future”.

28 His Honour was mindful of the need in sentencing the respondent to comply with the relevant provisions of the Crimes Act, including s 16BA. In taking the additional offences into account in sentencing the respondent for the principal offences, it was necessary to comply with the principles in Attorney General’s Application Under S 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146. On this appeal it was common ground that those principles applied in the sentencing of Commonwealth offenders.

29 His Honour found that the respondent’s pleas of guilty had been entered at the first reasonable opportunity and that the respondent should receive a discount in penalty of 25 per cent for the utilitarian benefit of those pleas. On this appeal it was not contended by the Crown that it had been inappropriate for his Honour to allow this discount.

30 His Honour found that the respondent had for many years had a sexual addiction, seeking sexual stimulation in a number of ways, including fantasising about taboo sexual conduct, in which he in fact did not participate, and having paid sex with prostitutes.

31 Although his Honour found that some of the history the respondent had given Dr Allnutt was inaccurate, his Honour accepted an opinion formed by Dr Allnutt that the respondent fell within the moderate low risk group for sexual recidivism in the general population and “taking his age into account under statistically validated predictive instruments he falls into the low risk group”. Dr Allnutt considered that the risks of future offending would be lower with appropriate treatment and that there was a high probability that the respondent would apply himself to future treatment programs. The sentencing judge found that the respondent was not now ashamed or unwilling to seek professional assistance and had the self-awareness and intellectual capacity to benefit from professional assistance. The respondent had in fact entered into treatment programs since he was taken into custody.

32 His Honour found special circumstances in the respondent’s need for help after his release in adjusting to living in the community and for an extended period of supervision including counselling and treatment.

The Crown’s submissions on the appeal

33 The principal submissions made by the Crown on this appeal can be summarised as follows.

34 It was conceded by the Crown that the facts of the offences and the subjective circumstances of the respondent were accurately and fully summarised in the sentencing judge’s remarks on sentence. It was also conceded by the Crown that the sentencing judge in his remarks on sentence had properly referred to all relevant sentencing considerations. However, it was submitted that the sentences imposed by the sentencing judge were manifestly inadequate, having regard to the objective facts of the offences as found by the sentencing judge and the high maximum penalty of imprisonment for 15 years set by the legislature for an offence under s 474.26 of the Criminal Code. The seriousness of the offence was to be measured by taking into account the objective facts of the offences, the maximum penalty under s 474.26 and by determining where the instant offences lay within the range of conduct coming within the section.

35 It was submitted that the facts of the offences fell squarely within the statutory provision. Aggravating factors were that in the case of both principal offences, and particularly in the case of the second offence, the respondent had taken steps to carry out his intention to procure the recipient of the communication to engage in sexual activity with him. The offer of payment for sexual services was also a factor aggravating the second offence.

36 Counsel referred to the Second Reading Speech made by the responsible Minister, when introducing the Bill which inserted Pt 10.6 into the Criminal Code. The Minister said:-

“The Bill contains new offences dealing with use of the Internet to access, transmit and make available child pornography and child abuse material, as well as possession or production of such material with intent to place it on the Internet…The new offences will also prohibit the use of a telecommunications service, including by means of the Internet, to procure or ‘groom’ a person who is under 16 years of age, for the purpose of engaging in sexual activity with that person or so that a third person can engage in sexual activity with that person. These offences carry penalties of 12-15 years imprisonment.
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.
These new offences would provide a firm legal basis for proactive AFP policing of this disturbing practice. The underlying rationale for the new offences is to allow law enforcement to intervene before a child is actually abused. A typical investigation may involve an AFP officer, or investigator at the Australian High Tech Crime Centre, assuming the identity of a fictitious child, interacting with potential predatory adults over the Internet, and arresting a predatory adult before they have an opportunity to sexually abuse a real child that they are also ‘grooming’.”

37 Counsel also referred to parts of the explanatory memorandum for the Bill.

38 It was pointed out that in sentencing the respondent for the principal offences the sentencing judge had to take into account the additional offences.

39 It was submitted that, although the sentencing judge in his remarks on sentence had referred to the purposes of sentencing of deterrence and denunciation, the sentences imposed by the sentencing judge did not sufficiently fulfil these purposes.

40 Counsel for the Crown referred to a series of Queensland Court of Appeal decisions on appeals against sentences for offences under s 218A(1)(a) of the Queensland Criminal Code, which was in fairly similar terms to s 474.26 of the Criminal Code.

41 Counsel also referred to the only previous decision in which a sentence has been imposed for an offence under s 474.26 of the Criminal Code R v Meehan 21 July 2006 (2007) VCC (Victorian County Court), a decision of Judge Douglas of the Victorian County Court.

42 Counsel also referred to a sentencing decision R v Holmes NSW District Court (Williams DCJ) 19 May 2006.

43 I will consider the decisions on s 218A(1)(a) of the Queensland Criminal Code and the cases of Meehan and Holmes later in this judgment.

The Respondent’s submissions on the appeal

44 The principal submissions made by counsel for the respondent can be summarised as follows.

45 Although the principal offences were serious, there were some matters which, at least to some extent, reduced their objective seriousness and distinguished the instant cases from worse cases.

46 As to the first offence, there had been communication by the respondent on one day only with a male person, who said that he was 15 years old. Although the respondent had believed that the person was under 16 years of age, there was no evidence that the person was in fact under 16 years of age. The person had given the respondent a telephone number, which was in fact a disconnected telephone number.

47 As to the second offence, there had been communication by the respondent on one day only with someone who, although believed by the respondent to be a girl of 15, was in fact an adult police officer. The Crown in para 16 of its written submissions conceded that remarks by the Queensland Court of Appeal on appeals against sentences for offences under s 218A(1)(a) of the Queensland Criminal Code, that it was relevant to sentencing that no real child victim was involved, were “apposite” to sentencing for an offence under s 474.26 of the Criminal Code.

48 In both of the offences the respondent had believed that the person he was communicating with was 15 years old. In the Queensland cases the offender had believed that the person he was communicating with was younger.

49 In neither of the offences had there been a process of online “grooming” of a child over a period, which according to the Second Reading Speech and the explanatory memorandum was a practice particularly aimed at by the legislation.

50 As to the additional offences, the sentencing judge had found that in making the calls the respondent was engaging in fantasising, not having done the things he described and not having any intention of doing them.

51 As to the first of the additional offences, the person with whom the respondent was communicating, the informant, was an adult woman whom the respondent had met and with whom the respondent had had consensual sexual relations.

52 The maximum penalty for an offence under s 474.26 was a yardstick in sentencing but had to be balanced with all the other relevant factors. Counsel referred to Markarian v The Queen (2005) 79 ALJR 1048 at 1056 [31].

53 Counsel referred to favourable subjective features of the respondent, including his pleas of guilty, his contrition and his employment history.

54 The sentencing judge, after carefully considering Dr Allnutt’s report, had accepted Dr Allnutt’s opinion that the respondent fell within the moderate low risk group for sexual recidivism in the general population and, after the respondent’s age was taken into account, within the low risk group.

55 The respondent had suffered severe extra-curial punishment for his offending in the loss of his profession and livelihood. Some allowance could be made in sentencing the respondent for the public humiliation he had undergone.

56 In the Queensland cases referred to by the Crown non-custodial sentences or custodial sentences with only a short period to be actually served in prison had been imposed and, notwithstanding the lower maximum penalty under s 218A(1)(a) of the Queensland Criminal Code, the Queensland cases provided some guidance in the present case.

57 Counsel referred to principles governing appeals against sentence generally and, particularly, principles governing Crown appeals against sentence.

Other sentencing decisions

58 As I noted earlier in this judgment counsel for the Crown referred to a series of Queensland Court of Appeal decisions on appeals against sentences for offences under s 218A(1)(a) of the Queensland Criminal Code.

59 Section 218A(1)(a) of the Queensland Criminal Code made it an offence to use the internet to procure a person believed to be under 16 years of age to engage in a sexual act. It was, accordingly, substantially similar to s 474.26 of the Criminal Code. Counsel for the Crown suggested that, although s 218A(1)(a) has not been expressly repealed, it is no longer in effect since the Commonwealth provision came into force.

60 The maximum penalty for an offence under s 218A(1)(a) was imprisonment for 5 years, or for 10 years, if the person communicated with was under 12 years of age or the offender believed that the person was under 12 years of age. The maximum penalty, therefore, was considerably less than the maximum penalty under s 474.26 of the Criminal Code.

61 In R v Kennings [2004] QCA 162 the Queensland Court of Appeal allowed the offender’s appeal against sentence and re-sentenced the offender to imprisonment for 18 months, but suspended the sentence. The offender had communicated over three days with an adult police officer pretending to be a 13 year old girl.

62 In R v Campbell [2004] QCA 342 the Queensland Court of Appeal dismissed an offender’s appeal against a sentence of imprisonment for 18 months, suspended after serving three months. The offender had communicated on five occasions with an adult police officer pretending to be a 13 year old girl.

63 In R v Burdon [2005] QCA 147, [2005] 153 A Crim R 104 the Queensland Court of Appeal dismissed a Crown appeal against a sentence of imprisonment for 18 months, which was wholly suspended. As in the other Queensland cases, the offender had communicated with an adult police officer who pretended to be a 13 year old girl. The offender had spoken in sexual terms and had sent sexually explicit photographs. In dismissing the Crown appeal the Court took into account the delays which had occurred in the Court proceedings and the extent to which the offender had been shamed in his local community through media interest.

64 In R v McGrath [2005] QCA 463 the offender appealed against sentences for a number of offences, including two offences under s 218A(1)(a) of the Queensland Criminal Code. The offender had communicated with two persons who he believed to be 13 years old but were in fact adult police officers. The Court of Appeal allowed the offender’s appeal against those sentences and ordered that the sentences of four months imprisonment imposed by the sentencing judge be suspended after six days.

65 In R v Hayes [2006] QCA 20 the Court of Appeal dismissed an offender’s appeal against sentences for two offences under s 218A(1)(a) of imprisonment for 18 months, suspended after three months. On each occasion the offender had communicated with the same adult police officer pretending to be a 13 year old girl.

66 In the present appeal the Crown did not accept that the sentences in the Queensland cases were, necessarily, appropriate sentences under the Queensland Criminal Code. It was submitted that, in any event, “the sentences imposed in the Queensland cases are not indicative of what the appropriate range of sentences for an offence against s 474.26 should be, mainly because of the significantly lower maximum penalty under the Queensland Criminal Code”.

67 It is clear that, in considering the Queensland decisions, the much greater penalty under the Commonwealth Criminal Code must be borne in mind. Nevertheless, it is noteworthy that the sentences imposed were much less than the sentences imposed in the present case by Judge Norrish and, where a sentence of imprisonment was imposed, the sentence was wholly or very largely suspended.

68 As noted earlier in this judgment, the only previous decision in which a sentence has been imposed for an offence under s 474.26 of the Criminal Code is R v Meehan 21 July 2006 (2007) VCC.

69 The facts in Meehan were very different from the facts in the present case. Over a period of about two months the offender, who lived in Melbourne, communicated, not with an undercover police officer, but with a girl living in Canberra who turned 15 during the period of the communication. The offender was seeking to foster what was described as a “romantic sexual relationship”. The offender and the girl had a meeting in Canberra. The girl’s mother became suspicious and the offender was apprehended. The offender had generally favourable subjective circumstances.

70 The offender was sentenced to imprisonment for two years but to be released after serving three months upon entering into a recognizance.

71 No appeal was brought, either by the offender or by the Crown, against the sentence imposed by the sentencing judge. However, on this appeal counsel for the Crown said that the Commonwealth Director of Public Prosecutions regarded the sentence as inadequate.

72 Counsel for the Crown also referred to R v Holmes. Holmes was sentenced, not for any offence under s 474.26 of the Criminal Code, but for a number of other offences, including an offence of using a carriage service to “groom” a person under 16 years of age, an offence under s 474.27 of the Criminal Code.

73 Under s 474.27 it is an offence to use a carriage service to transmit a communication to another person which is indecent, with the intention of making it easier to procure the recipient to engage in sexual activity with the sender, where the recipient is or is believed by the sender to be under 16 years of age and the sender is at least 18 years of age. The maximum penalty for the offence is imprisonment for 12 years.

74 The sentence imposed by the District Court judge for the offence of grooming, to which Holmes had pleaded guilty, was a term of imprisonment of two years nine months, with a non-parole period of one year eight months.

75 Holmes had communicated with a person in the United Kingdom, who purported to be an 11 year old girl “Lucy” but who was in fact an adult male, who, according to the sentencing judge’s remarks on sentence, was being investigated by authorities in the United Kingdom.

76 Holmes transmitted images of child pornography, suggesting that the recipient could do similar things with him. Holmes, who was a flight attendant for an airline, proposed a meeting in London for sexual activity, including anal sex. Holmes said that if “Lucy” became pregnant and gave birth, the child could be tied up and subjected to obscene criminal acts.

77 Holmes was also sentenced for offences of possession of child pornography, using a carriage service to transmit child pornography and importing child pornography.

78 No appeal was brought by either the offender or the Crown from the sentences imposed in the District Court. On the present appeal counsel for the Crown said that the Commonwealth Director of Public Prosecutions regarded the sentences as inadequate.

General principles on Crown appeals against sentences

79 The principles to be applied on Crown appeals against sentence are set out in para 70 of the judgment of Wood CJ at CL in R v Wall [2002] NSWCCA 42. His Honour said:-

“(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong and Leung v The Queen (2001) 76 ALJR 79 at para58 and para109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons": per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at para61 and para62, and Wong & Leung v The Queen at para109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong and Leung v The Queen at para110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder and Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen at para62.”

80 In para (b) Wood CJ at CL referred to R v Baker, in which Spigelman CJ said at paras [12] and [19]:-

“[12] This is one of those cases in which the Court is asked to infer a legal error from the mere inadequacy of the sentence. The Appellant's submissions did not direct attention to any part of the conduct of the proceedings, or of her Honour's reasons on sentence, which disclosed any form of legal error.
[19] In my opinion there is no warrant for this Court to interfere with the sentencing discretion by her Honour. The authorities make it clear that Crown appeals should be rare. It may be that present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified in the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.”


Decision

81 As already stated earlier in this judgment, it was conceded by counsel for the Crown on this appeal that the facts of the offences and the subjective circumstances of the respondent were accurately and fully set forth in the sentencing judge’s remarks on sentence and it was further conceded by the Crown that the sentencing judge in his remarks on sentence had properly referred to all sentencing considerations. His Honour referred appropriately in his remarks on sentence to all the purposes of sentencing, including deterrence and denunciation.

82 In such circumstances, in accordance with the principles stated in Baker and Wall, a successful Crown appeal will be rare. In order for the Crown to succeed on an appeal, the Crown is required to show that legal error can be inferred merely from the length of the sentence. Legal error must be established, not merely that this Court, if it had been the original sentencing court, might or would have imposed a longer sentence.

83 The offences committed by the respondent were objectively serious. However, the objective seriousness of the respondent’s offences could be distinguished from the objective seriousness of more serious cases, in the way stated by the sentencing judge in his remarks on sentence which I have summarised earlier in this judgment and in the ways submitted by counsel for the respondent in his submissions which I have also summarised earlier in this judgment.

84 Counsel for the Crown relied particularly on the high maximum penalty for an offence under s 474.26 of the Criminal Code. The maximum penalty for an offence is a yardstick and an important yardstick but nevertheless remains “a yardstick…(to be) taken and balanced with all of the other relevant factors” (see Markarian v The Queen at 1056 [31]). In the present case the sentencing judge was clearly mindful of the maximum penalty.

85 The respondent pleaded guilty and was allowed a discount in penalty of 25 per cent for his plea of guilty.

86 Some allowance could properly be made for the severe extra-curial punishment the respondent had suffered and would suffer, including the virtually certain loss of his profession of 25 years and his livelihood. Some allowance, albeit only limited, could be made for the public humiliation the respondent had suffered.

87 The sentencing judge could also take into account favourable subjective features of the respondent’s, including contrition and Dr Allnutt’s opinion, which the sentencing judge accepted, that, when regard was had to all factors, the risk of the respondent re-offending was low.

88 It is true that the maximum penalty for an offence under s 474.26 of the Criminal Code is much higher than was the maximum penalty for an offence under s 218A(1)(a) of the Queensland Criminal Code. However, the sentence imposed on the respondent was higher than any of the sentences imposed on any of the Queensland offenders and, as regards the time required to be actually served in prison, much higher.

89 The conclusion I have come to is that the present appeal is not one of those rare Crown appeals in which the appeal should be allowed, notwithstanding that the Crown cannot point to any specific error in the sentencing process, and I would, accordingly, dismiss the appeal. As should be clear from what I have written, I have reached this result by an application of the principles governing Crown appeals against sentence.

90 ROTHMAN J: I have had the advantage of reading the reasons in draft of James J. I agree with his Honour’s reasons and the orders he proposes. The following comments do not detract from the force of those reasons.

91 The relevant jurisdiction conferred on the Court of Criminal Appeal is to correct error. In the case of Crown appeals there is a live discretion exercised by the Court not to interfere even when error is shown and the requirements of section 6(3) of the Criminal Appeal Act 1912 (NSW) have been satisfied.

92 In the current appeal, there is no error of fact. The Crown so concedes. Nor can the Crown identify any error of principle or law. The Crown therefore relies on manifest error; i.e. an error that is manifest from the result even though it is unclear or unknown how the error occurred: House v R (1936) 55 CLR 499 at 505.

93 It is usual, in those circumstances, in a Crown appeal, for the Crown to seek to show that the sentence imposed is not only less than is warranted but so much less as to be outside the range of available sentences. In this appeal, the Crown has quite properly conceded that the sentence imposed by his Honour Judge Norrish QC was, if there be a range, above it. Such a comparison with the range is analysed by James J.

94 The gravamen of the Crown appeal is that with the alterations to the offence and maximum sentence, the sentences being imposed (not necessarily that of Judge Norrish QC) are too lenient. If one were examining the sentences previously imposed for this or like offences in Victoria and Queensland, and measuring same against the current maximum sentence, there is much force in the Crown submission. But that is not our task. Our task is to examine only the sentence imposed by Judge Norrish QC and determine whether it displays error.

95 The offence in question is a legislative attempt to regulate and prohibit the use of modern technology in the abuse of children. The fact, if it be the fact, that the perpetrator is not intending to act on her/his statements, because she/he is indulging in a fantasy, may be relevant to sentence, but is not the most relevant feature.

96 The legislature, with this provision, is seeking to implement society’s abhorrence of the practice of inducing children to engage in inappropriate sexual behaviour. That process includes not only the direct and physical abuse of children but the “grooming” of children to accept more readily inappropriate sexual activity. Even though a perpetrator of an offence of this kind may have no intention of acting out the fantasy or fantasies in which she/he is indulging, the conduct has a significant deleterious impact upon any child participating in it.

97 In the particular instance with which Judge Norrish QC was dealing, the offender was committing the offence on a telephone service which overtly encouraged sexual discussion and fantasy, if not more. That fact is, it seems to me, far more relevant as one of the criteria by which a sentencing judge would determine the criminal culpability of the offender. If, for example, the offence were committed on persons who were not voluntarily engaged in sexual discussions, the criminal culpability would be much worse.

98 The respondent offender has particular subjective features all of which have been described by James J and were factors considered by Norrish DCJ. Sentencing, as earlier stated, is an intuitive synthesis of the conflicting goals in order to derive an appropriate result: Markarian, supra. Judge Norrish QC is a most experienced sentencing judge who, in this case, imposed a sentence, quite deliberately, to take account of all of the relevant factors, and no others. Even though, given the increased penalty applicable under the amended provision, this sentence would be at or near the bottom of the range, it is not, in the circumstances, below it.

99 I agree with the reasons of James J and the orders proposed by his Honour.

100 HARRISON J: I agree with James J.

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