R v Sertori
[2017] ACTSC 300
•28 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Sertori |
Citation: | [2017] ACTSC 300 |
Hearing Date: | 12 May 2017; 21 September 2017 |
DecisionDate: | 28 September 2017 |
Before: | Burns J |
Decision: | See [15]-[16] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – intention of preparing for or planning an offence involving sexual intercourse with a child outside Australia – carriage service to transmit child pornography – no prior convictions – early plea of guilty – serious offence – general deterrence – individual deterrence – intention to carry out offence – good prospects for rehabilitation – Intensive Corrections Order – offender not to access the internet – Forfeiture Order |
Legislation Cited: | Commonwealth Criminal Code 1995 (Cth) ss 272.20(1), 474.19(1) |
Cases Cited: | R v Cole [2016] VCC 1748 |
Parties: | The Queen (Crown) Nathan Sertori (Defendant) |
Representation: | Counsel: Mr T Ellison (Crown) Mr A Doig (Defendant) |
| Solicitors: Commonwealth Director of Public Prosecutions (Crown) Ben Aulich & Associates (Defendant) | |
File Number: | SCC 18 of 2017 |
Burns J:
Nathan Sertori, on 2 February 2017 you entered pleas of guilty in the Magistrates Court to two charges. The first charge, contrary to s 272.20(1) of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code), that between 6 June 2016 and 5 July 2016 you did an act with the intention of preparing for or planning an offence against s 272 of the Commonwealth Criminal Code involving sexual intercourse with a child outside Australia.
The second charge is one contrary to s 474.19(1) of the Commonwealth Criminal Code that between about 24 February 2016 and about 25 June 2016 you used a carriage service to transmit child pornography material. On each charge, after you had pleaded guilty, you were committed for sentence to this court. The maximum penalty for the first charge is 10 years imprisonment, a fine of $108,000, or both. The maximum penalty for the second charge is 15 years imprisonment, a fine of $162,000, or both.
An agreed Statement of Facts was tendered. It is not necessary for present purposes to refer to those facts in detail. It is sufficient to note that with respect to the first charge that between the dates in question you used the internet to connect to the website motherless.com and the Yahoo Messenger service application software from your personal computer, laptop computer and mobile phone and discussed a plan with a person who identified themselves as Sadie, to engage in sexual intercourse, including penetrative sexual intercourse, with Sadie's children. That activity was planned to take place while you were in London on holidays with your mother between 24 and 29 July 2016.
I note that in that regard you were not, in fact, dealing with a woman by the name of Sadie who had children who were, as was suggested, available for sexual abuse. You were, in fact, dealing with a police officer. Of course, you did not know that.
With respect to the second count, it is sufficient to note that between 25 February 2016 and 24 June 2016 you engaged in highly sexualised conversations with the person calling themselves Sadie and with Yahoo user, [redacted for legal reasons]@yahoo.com, who described herself as 14 years old. It is unknown whether that, in fact, is a real person. During these conversations you transmitted child pornography material as defined in s 473.1 of the Commonwealth Criminal Code in that you described a child engaged in or implied to be engaging in sexual activity.
I note that you have no prior convictions. You entered early pleas of guilty with respect to these charges. I am satisfied that your early pleas indicate a willingness to facilitate the course of justice and also an acceptance of personal responsibility for your actions.
You are 36 years of age. I take into account the contents of the psychologist reports and testimonials which have been put before me. I accept that these offences are serious and call for the imposition of prison terms. The question is how are those terms to be served. I accept the submission made by the Crown that deterrence is a very significant sentencing factor with respect to offences of this nature and, in particular, general deterrence. Individual deterrence, it appears to me, is not such a significant factor with respect to sentencing you for these offences.
I note that your pleas of guilty indicate an acceptance of each of the elements of each of the offences. In that regard the first offence was complete at the time of the electronic communications which are referred to in the Statement of Facts. There is no need for the Crown to prove that you subsequently intended travelling to the United Kingdom (UK) to carry out sexual offences with children. Proof of such an intention would be an aggravating circumstance which the Crown must prove beyond reasonable doubt. I note that this circumstance was present in the matter of R v Cole [2016] VCC 1748, which was a case to which I was referred by the Crown in terms of comparable matters.
There is evidence pointing both ways with respect to whether you intended to carry out sexual offences on your trip to the UK. Ultimately I'm not persuaded beyond reasonable doubt that that was the case, firstly, because the trip was planned before you made the communications with the person that you understood to be Sadie and, secondly, and I think most importantly, that you ceased any sexualised communications on 24 June 2016, a good three weeks prior to the anticipated commencement of the journey.
It would seem to me that if you were intent upon carrying out sexual offences as had been planned earlier in your communications with the person that you knew as Sadie, that the communications with that person would have likely increased in the period leading up to when you were leaving the country. I am not satisfied that that aggravating circumstance exists in this case.
I take into account the considerable steps that you have taken towards your rehabilitation since you were charged with these offences. In that regard I give very significant weight to the reports that have been produced from LSC Psychology. I accept that you have shown real contrition both by the way in which you have engaged in appropriate rehabilitation and also by your pleas of guilty with respect to these charges. I am satisfied that you have good prospects for rehabilitation. You are currently employed. You have continuing family support and you are also continuing in the treatment with the psychologists.
I also take into account the fact that you have been assessed as suitable for an Intensive Corrections Order. In determining how you are to serve any sentence of imprisonment imposed with respect to these charges I must bear squarely in mind the principle that a sentence of full time imprisonment is to be imposed only as a sentence of last resort and only in circumstances where no lesser sentence would achieve the aims of sentencing.
I also take into account the fact that you have spent 16 days in custody. As I intend to impose sentences of imprisonment to be served by way of Intensive Correction Orders it is not appropriate that I backdate the sentence to take into account the 16 days pre‑sentence custody. What I have done is to reduce the sentence that I will impose for the first charge effectively by a further period in order to cover that pre-sentence custody.
If one did a calculation of 25 per cent of the head sentence that I would have started with, which is one of 30 months imprisonment, one comes back to a reduction of between seven and eight months. I have taken the higher figure of eight months in order to accommodate that period of 16 days pre-sentence custody.
Sentence
With respect to the first charge you will be convicted and sentenced to 22 months imprisonment which will commence today, 28 September 2017, and expire on 27 July 2019. With respect to the second charge, you will be convicted and sentenced to 12 months imprisonment commencing on 28 November 2018 and expiring on 27 November 2019. The aggregate sentence which I have therefore imposed is one of two years and two months, commencing on 28 September 2017 and expiring on 27 November 2019.
I order that these sentences be served by way of an Intensive Correction Order. That Order will be subject to the core conditions but also to a further condition that you are not to access the internet. I will also recommend that you be directed to continue with your current rehabilitation program with LSC Psychology. I will make the Forfeiture Order as sought by the Crown.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 27 October 2017 |