R v Shepheard - [2008] ACTSC 116

R v KEITH SHEPHEARD
[2008] ACTSC 116 (13 October 2008)

CRIMINAL LAW AND PROCEDURE – sentence – grooming of a young person – serious offence – s 474.26 Criminal Code Act 1995 (Cth).
CRIMINAL LAW AND PROCEDURE – Victim Impact Statement.
EVIDENCE – statements made to the person preparing a Pre-Sentence Report.

Crime (Sentencing) Act 2005 (ACT), ss 47, 53
Crimes Act 1914 (Cth), s 16(A)
Proceeds of Crime Act 2002 (Cth), ss 48(2), 56, 316
Criminal Code Act 1995 (Cth), ss 474.26, 474.27

R v O’Shana (ACTSC, Refshauge J, 1 August 2008, unreported)
Tector v R [2008] NSWCCA 151
R v Jesson (QSC, Wilson J, 28 February 2008, unreported)
Makarian v R (2005) 28 CLR 357
Director of Public Prosecutors v Prasoeur [2006] VSC 41
Gumbinyarra v Teague (2003) 12 NTLR 226
R v Dowlan [1998] 1 VR 123
Police v Crosbie [2002] SASC 433

R v Rankin [2001] VSCA 158
R v Miller [1995] 2 VR 348

R v MA [2001] NSWCCA 30
R v FD; R V JD (2006) 160 A Crim R 392
R v Slack [2004] NSWCCA 128
R v King (2004) 150 A Crim R 409
Mitchell v The Queen (1998) 20 WAR 257
R v Singh [2006] QCA 71
R v Ali [1996] 2 VR 49
R v O’Neill [1979] 2 NSWLR 582
R v KT [2007] NSWSC 83
R v Leach (2003) 85 SASR 139
Isaacs (1997) 90 A Crim R 587

Chow v Director of Public Prosecutions and Anor (1992) 28 NSWLR 593

R v Harris [1961] VR 236
Sagdic v Gowing (1995) 82 A Crim R 26
Qutami (2001) 127 A Crim R 369
R v Milojevic [2001] NSWCCA 461
Buonocore v R [2006] NSWCCA 159
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Searle (QSC, Lyons J, 15 June 2007, unreported)
R v Budd (DC(NSW), Charteris DCJ, 2 October 2007, unreported)
R v Gajjar (CC(Vic), Millane CCJ, 20 June 2008, unreported)

Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No 2), 2004 (Cth), Explanatory Memorandum

EX TEMPORE JUDGMENT

No. SCC 333 of 2007

Judge: Refshauge J
Supreme Court of the ACT

Date: 13 October 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCC 333 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

R
v
KEITH SHEPHEARD

ORDER

Judge:  Refshauge J
Date:  13 October 2008
Place:  Canberra

THE COURT ORDERS THAT:

The accused be imprisoned for two years and nine months to commence on 14 April 2008.
The accused be released on 14 January 2009 upon entering into a recognizance, himself in the sum of $500 with the following conditions:
(a)he is to be of good behaviour for a period of three years;
(b)he is to submit himself to the supervision of the Chief Executive or his or her delegate, and obey all reasonable directions about sex offender treatment;
(c)he is, on release, to seek to be admitted to a sex offender program and, if admitted, to continue with the program until it is completed.

BY CONSENT:

Pursuant to ss 48(2) and 316 of the Proceeds of Crime Act 2002 (Cth) the property specified in the Schedule be forfeited to the Commonwealth.

Pursuant to s 56 of the Proceeds of Crime Act 2002 (Cth) the value of the property is specified as $40.

Each party is to pay its or his own costs of and incidental to the proceedings under the Proceeds of Crime Act 2002 (Cth).

SCHEDULE

LG Brand U8180 mobile phone and “3” network prepaid USIM Card.

The sexualisation of children is rightly regarded by the community as not only abhorrent but a matter of concern. That is why, as I explained in R v O’Shana (ACTSC, Refshauge J, 1 August 2008, unreported), the Commonwealth legislature has created the offence with which Mr Shepheard stands charged and to which he has pleaded guilty, as well as other similar offences.

As was said in Tector v R [2008] NSWCCA 151 at [23] such offences introduced into the Commonwealth Criminal Code in 2004 were “intended to provide protection for children from what his Honour referred to as soliciting to engage in sexual activity”.
Similarly, Wilson J pointed out in R v Jesson (QSC, Wilson J, 28 February 2008, unreported) about a range of such offences at p 9:
Over the period of [2000 to 2007], both the Commonwealth and State Legislatures introduced new offences with higher maximum penalties. That they did so is indicative of the concern with which such behaviour is regarded. The dissemination of child pornography over the internet and by email involves the exploitation and corruption of children. It can be used to groom children to think that such behaviour is appropriate, and it is likely to encourage others to exploit and corrupt children. Doing so to procure a person under 16 to engage in sexual activity represents the high water mark in the abuse of technology. These offences are difficult to detect and they are prevalent.
What this case also demonstrates graphically, however, is the real harm that the activity such as this offender undertook can do to the victims of these offences. I shall deal with that later when I refer to the Victim Impact Statement.
Mr Shepheard has pleaded guilty to one offence contrary to s 474.27 of the Criminal Code1995 (Cth), that of using a telecommunication carriage service to groom a person under the age of 16 years. Grooming is a precursor to the abuse or assault of such young people, rendering them susceptible to the attention of predators who can then take advantage of their created vulnerability and, at the same time, reduce the chances that their offences will be reported or prosecuted.
The Explanatory Memorandum to the amending legislation which introduced these offences explained them as follows:
… 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 the first step towards the future sexual abuse of that child. The practice is known as ‘online grooming’.
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:
(1) 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 a sympathetic parent figure. Paedophiles reportedly expose children to pornographic images as part of the ‘grooming’ process. It is proposed to specifically criminalise this practice. Specific offences would remove any doubt about whether online ‘grooming’ of a child before actual contact is mere preparation (i.e. not a criminal offence) or an unlawful attempt to commit child sexual abuse.
(2) With the child’s trust won, adults often use telecommunication 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 1, 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 proposed offences would operate nationwide …
…
There are three new offences proposed to specifically target actual grooming. Each of them closely tracks the three procuring offences in proposed s 474.26.
Paedophiles expose children to pornographic images as part of the grooming process. But the new offences would apply even if no pictorial pornographic material is shown to a child. Exposure to pornographic and sexual concepts, even if only written, would constitute grooming.
…
The proposed maximum penalty for the grooming offences is imprisonment for 12 years. The grooming offences would often involve using a carriage service to send pornographic images, including child pornography material. Therefore, a maximum penalty of at least imprisonment for 10 years is necessary to maintain consistency with the proposed offences targeting the distribution of child pornography material, also included in the Bill. The penalty for grooming should be lower than the proposed penalty of imprisonment for 15 years for ‘procuring’: the act of ‘procurement’ is arguably more serious, being closer to the commission of actual child sexual abuse.
These are therefore rightly regarded as serious offences. This can be seen from the statutory maximum penalty of 12 years imprisonment. The statutory maximum penalty is, of course, an important factor to which I must pay careful attention. As was said by Gleeson CJ and Gummow, Hayne and Callinan JJ in Markarian v R (2005) 228 CLR 357 at 372:
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may, in some cases, be a matter of great relevance. In their book “Sentencing”, Stockdale and Devlin observed that:
A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century … or because it has more recently been set at a high catch-all level …. At other times the maximum may be highly relevant and sometimes it may create real difficulties …. A change in a maximum sentence by Parliament will sometimes be helpful where it is thought that the Parliament regarded the previous penalties as inadequate.
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all other relevant factors, a yardstick. (Footnotes omitted).
The facts giving rise to the offence to which Mr Shepheard has pleaded guilty are set out in the statement of agreed facts which was tendered without objection. I assume from this that its title was accurate, namely, that it was in fact a statement of the facts that are agreed between the parties, and I rely on it accordingly.
The statement disclosed that Mr Shepheard, at relevant times, lived in Perth, Western Australia. In early 2007 he was a member of a mobile phone based social networking system known as “Kinkkommunity”. It was said to be a forum available to certain mobile phone users by which they could communicate with each other outside the normal realms of short messaging service (SMS) and voice telecommunications. Whilst it is said to be only available to those over the age of 16 years, there was no checking of the actual age of those registering on the system.
Mr Shepheard registered under his actual first name, Keith. On or about 1 April 2007 Mr Shepheard made contact on Kinkkommunity with a young person, a 14 year old male, who used the name Trent and the two communicated frequently until 3 April 2007. A total of 58 messages were sent, all by SMS or multimedia messaging service (MMS) messages, never orally over the phone, though they had exchanged mobile phone numbers.
With one exception, the actual content of these messages was not specifically in evidence. The young person sent Mr Shepheard a video entitled, “Boy’s First Time”, showing a male performing oral sex on another male and Mr Shepheard sent back a video of a male, apparently around the age of 16 years, lying on a bed masturbating. The male was completely naked and most of his body was visible.
The young male’s mother found the messages on his phone some time later and became aware of the communications with Mr Shepheard.
A complication arises, however, in that it is clear that the young male received sexually explicit material from a number of persons. As the statement of agreed facts put it:
On 13 April 2007 [the young male’s mother] became aware of [the young male’s] communication with Mr Shepheard and a number of other persons on his mobile phone. [She] discovered that a large number of these communications were sexually explicit and of a pornographic nature. [She] contacted the guidance counsellor from [the young male’s] school who in turn, contacted the Police.
The problems this has created are dealt with later in these reasons.
As a result of the contact with the police an undercover operative (UCO) assumed the identity of the young male, being Trent, and made contact with Mr Shepheard on 15 June 2007. The contact initially was completely innocuous: UCO sent an SMS message, “Hi, I am back. Here is my new number”. Mr Shepheard responded.
Between 15 June 2007 and 23 July 2007 Mr Shepheard and UCO communicated through SMS, MMS and through telephone conversations. Between 15 June 2007 and 9 July 2007, more than 800 SMS and MMS messages were exchanged. On 20 June 2007, Mr Shepheard messaged UCO asking if he “… would be my boyfriend …”. UCO asked how old he was and Mr Shepheard replied “I am 20”. He then asked how old Trent was and UCO replied that he was 14.
On 25 June 2007 Mr Shepheard had a further communication where Mr Shepheard suggested that they would stay in a five star hotel. UCO asked “… Do mean we stay in same bed? …” Mr Shepheard replied “It is up to you hun if you want to sleep in the same bed hun I am not going to force myself on you hun I am not like that. If we want sex or sleep together you have to agree hun …”. On 26 June 2007 they had further communication where Mr Shepheard suggested “… We do kissing then whatever happens hun after that …”. Later Mr Shepheard suggested oral sex “… and whatever you would like to do with me, hun”. There were further references to oral sex and masturbation. UCO reiterated that he was 14 years old.
On 28 June 2007, Mr Shepherd sent an MMS message which was a short video depicting a young Caucasian male shown masturbating. Later that day he sent a similar video with a male masturbating until ejaculation. He stated “How I want to make love to you over and over …” and how he wanted to have oral sex with him. On 2 July 2007, Mr Shepheard sent a further MMS message including the words, “Love you too hun …” and a picture file of a naked male holding his genitals up to reveal his anus.
On 3 July 2007 there were messages about Mr Shepheard inviting Trent to Perth and then coming to Canberra. Mr Shepheard suggested Trent could live with him. In further messages Mr Shepheard professed his love for Trent. He told him he had booked a flight from Canberra to Perth, though he did not actually do so. A week later he apologised for not travelling to Canberra and again professed his love for Trent. A few days later he communicated about purchasing a ticket for Trent to come to Perth. He made enquiries of an airline but never booked a ticket. He was arrested five days later on 25 July 2007.

The Proceedings

Mr Shepheard was originally remanded in custody but on 30 November 2007 he was granted bail. He then returned to Bunbury where his parents lived. He was committed for trial on 27 September 2007. The trial was set for 14 July 2008 and Mr Shepheard was arraigned on 4 March 2008. At a pre-trial directions hearing on 4 July 2008, Mr Shepheard’s counsel informed the court that Mr Shepheard intended to plead guilty and, as a result, the trial date was vacated and the matter listed for sentence instead on 14 July 2008. On 14 July 2008 the matter was called and Mr Shepheard failed to appear. He was called but was not present. A warrant issued for his arrest.
He was arrested on 12 August 2008 and has remained in custody since then. He formally pleaded guilty on 29 August 2008.

Subjective Circumstances

A detailed pre-sentence report was prepared and read and the author cross-examined. A statement of Mr Shepheard’s criminal record was also tendered. Mr Shepheard is 50 years old. He was born in England but came to Australia as a young boy when his family migrated to Western Australia. He reported to the Probation and Parole Officer who prepared the comprehensive Pre-Sentence Report that he had a happy childhood. He attended high school and seemed to have been a reasonably good student.
He left home at age 17 to “relieve his parents of his burden” and gain some independence. He was apparently ill-prepared for this and for several months lived on the streets, turning to crime to obtain money. This behaviour resulted in several convictions. He had little contact with his parents until about 2006. His criminal record shows an offence of imposition in 1969, and then three dishonesty offences and a breach of probation in 1977, and three similar offences in 1978 leading to imprisonment. He subsequently breached his probation twice in 1978 and was imprisoned for three years. In 1982 he was convicted of a traffic offence which I do not consider relevant and then in 1999 was again imprisoned for dishonesty offences.
While these offences are not of a similar character to the offence for which he stands to be sentenced, they mean he does not come before the court with a good character. They also show a disturbing trend of breaching probation orders, perhaps an indicator that he is not entirely reliable in relation to conditional release orders.
After release from prison, Mr Shepheard boarded with a correctional officer with whom he had struck up a friendship before moving into a refuge where he stayed for five years. He then stayed in various accommodations and found it difficult to form friendships. He eventually moved to a Perth suburb where he stayed for five years before committing this offence. He was then employed as a caretaker. While on bail he stayed with his parents who are prepared to have him back when released from prison. His parents are in their 80s and are frail.
Mr Shepheard has had a variety of jobs, miner, timber worker, caretaker, storeman and, more recently, a slaughterman at an abattoir. He said he earned about $1,400 to $1,000 per fortnight and reported few expenses. In his interview with the Probation and Parole Officer he stated that while admitting that he planned to visit Trent, he was restricted by his financial capacity to travel, though he added that he was also concerned about the potential consequences of his own behaviour and visiting Trent.
Mr Shepheard has been assessed as having a high moderate risk of re‑offending. Studies have shown that 33% of offenders in this category re-offend within five years. His rehabilitation prospects are mixed. While he admitted to a degree of ambiguity about his own sexuality, regarded by the Probation and Parole Officer in oral evidence before me as a significant admission which gave some positive signs towards successful rehabilitation, he also stated that he did not think he had committed an offence, and had limited insight into the impact of his offence on the victim, which is concerning.

Victim Impact Statement

Statements known as Victim Impact Statements (s 47 of the Crimes (Sentencing) Act 2005 (ACT)) were tendered by the prosecution without objection. They were made by the young male and his mother. When I say without objection, that is strictly correct but Ms Warwick who appeared for Mr Shepheard, submitted that I should give them little weight. No application was made, however, to cross‑examine the maker of either statement. That they were tendered without objection is significant, for it means that they are considered by defence counsel to be admissible. To be admissible they must, in the words of s 47 of the Crime (Sentencing) Act 2005 (ACT) be:
a statement made by or for a victim of the offence that contains details of any harm suffered by the victim because of the offence.
Such statements are not infrequently challenged, for example, because the author is not a victim in the defined sense (Director of Public Prosecutors v Prassoeur [2006] VSC 41) or that the claimed harm was not caused by the offence: Gumbinyarra v Teague (2003) 12 NTLR 226; R v Dowlan [1998] 1 VR 123.
While it is proper to approach such statements with a degree of flexibility and not confine them by the procedural rules applicable to the treatment of witness statements in commercial cases, it is important not to rely on inadmissible material: R v Dowlan (supra). It is, however, important for counsel to identify explicitly what material in such a statement is objected to and on what grounds the objection is based. Similarly, where counsel challenges part of a statement, it is counsel’s responsibility to identify the use to which the remaining parts of the statement should be put, and the weight that can be given to the material. See Police v Crosbie [2002] SASC 433 at [26].

At issue here are two matters. In the first place, Ms Warwick submitted that as the victim had received sexually explicit communications from more than one person it was, she said, impossible to say that Mr Shepheard had caused the harm identified in the statement. In the second place, Ms Warwick submitted that some of the facts referred to in the statement were, she said, inconsistent with the statement of agreed facts. I shall deal with the second matter below.
In relation to the first matter, the statement of the young male indicated that his school and personal life had been seriously affected. He indicated that he had to spend some time with police explaining how he used his phone and felt isolated at school. The phone calls scared him and he started to cut himself because it made him feel better. He had suicidal thoughts.
It seems to me that the kind of interaction that occurred between the victim and Mr Shepheard can be taken to be likely to have a serious effect on the victim. There are effects that a court can accept as notorious: R v Rankin [2001] VSCA 158 at [9]. Indeed, a court can and often must draw inferences of harm from the facts of a case, even where there is no victim impact statement: R v Miller [1995] 2 VR 348 at 354.
That some, indeed, perhaps the majority, of the effects actually occasioned in this case may have come from other offenders or, indeed, have come from the accumulated effect of the many communications he received, is perhaps not to the point. In such circumstances, it is impossible to avoid the conclusion that harm, the precise origin of which cannot be precisely identified, was occasioned to the victim. That does not make the statement necessarily inadmissible nor unhelpful. See R v MA [2001] NSWCC 30 at [17]-[19]. It depends on how the statement is used.
Here the contribution made by the other communications are, in fact, to be considered in the light of the fact that the material is of a kind, perhaps more serious, perhaps more explicit, that Mr Shepheard had himself supplied the victim. It is not as if the other offending communications were different or divergent from that which Mr Shepheard communicated.
I am aware of the controversy, particularly in the courts of New South Wales, about the exact effect and nature of the contribution of victim impact statements on the sentencing process. See R v FD; R v JD (2006) 160 A Crim R 392 at 413-416. While there have been criticisms of the use of such statements because they are “… [an] unsworn statement, not necessarily and almost certainly not in the victim’s own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim”: R v Slack [2004] NSWCCA 128 at [62], they are now, however, often in the victim’s own words and can be tested and the opportunity to do so is there. If the opportunity is not taken to test them, this can perhaps in an appropriate case, assist the court to give them appropriate weight: R v King (2004) 150 A Crim R 409 at 441-443; Mitchellv The Queen (1998) 20 WAR 257 at 266. In this case the opportunity to cross-examine the victim was not availed of. I must accept that this can be an opportunity not easily taken: R v Singh [2006] QCA 71. I do, however, consider that the statement tendered by the young boy clearly appears to be in the victims own words.
A sentencer has never been prohibited from saying something about the circumstances of the victim of a crime, and is not thereby to be regarded as having allowed his or her sympathy for the victim to loom so large as to cause the sentencing discretion to miscarry: R v Dowlan (supra). The effect of a crime is always a relevant matter to be taken into account: R v Ali [1996] 2 VR 49 at 60. Of course the burden of proof remains with the prosecution, and that is that such matters must be proved beyond reasonable doubt: R v O’Neill [1979] 2 NSWLR 582 at 588.
Here, as I understand the submission, it is not that there was no effect on the victim, but that not all the effects can be sheeted home to Mr Shepheard. I accept that and take it to be so. That Mr Shepheard contributed to the harm in some incalculable way, however, cannot be denied.
I note, too, that an important part of the function of the victim impact statement plays is to “bring home to the offender … the appalling consequences of the offender’s actions”: R v KT [2007] NSWSC 83 at [61]; R v Leach (2003) 85 SASR 139 at 148-9. As it was said by the sentencing judge, quoted with apparent approval by the Court of Criminal Appeal, in Tector v The Queen (supra) at [27]:
It is doubtful, I think, that [the offender] would fully appreciate the harm that he does. I have no doubt that a lot of rationalisation would convince him that he was doing very little harm at all.
In view of the comment in the Pre-Sentence Report that Mr Shepheard “did not think it was an offence”, and the author’s comment that he had “limited insight into the impact of the current offences on the victim”, the victim impact statement has played an important function in these proceedings.
In sentencing I will consider the Victim Impact Statement as s 53 of the Crimes (Sentencing) Act 2005 requires me to do. I accept for that purpose that the victim has suffered serious harm but that Mr Shepheard is not responsible for all of it, and probably not the majority of it, in the light of the prosecution’s proper concession that another identified offender committed a more serious version of the offence, and that there were a number of other perpetrators who have not been identified.

The Disputed Facts

As noted above, there was some dispute about the nature of the contact that Mr Shepheard had with the young male in the period between 1 and 3 April 2007. The statement of agreed facts from which I have quoted above aggregates the description of what was communicated by Mr Shepheard and the others who also had contact with the victim. In particular, Ms Warwick pointed out that specific comments mentioned in the Victim Impact Statement were not expressly stated in the statement of agreed facts. In effect, Ms Warwick invited me to find that such statements had not been made by Mr Shepheard, and it seems her submissions may have gone so far as submitting that the conversations had been innocuous.
Ms Warwick pointed out that the prosecution bears the onus of proof in respect of proof of any disputed facts, and that this onus must be discharged to the criminal standard, namely, proof beyond reasonable doubt. That is undoubtedly true: Isaacs (1997) 90 A Crim R 587 at 592. In this case, however, I have certain factors to take into account. The statement was one of agreed facts and was tendered without objection. Further, the Victim Impact Statement was also tendered without objection, though its weight as evidence was challenged. There was no request for a hearing as to disputed facts. Any dispute must be resolved in accordance with ordinary principles: Chow v Director of Public Prosecutions and Anor (1992) 28 NSWLR 593 at 605. Mr Shepheard did not give evidence.
I am not required to take the most lenient view of the facts: R v Harris [1961] VR 236 at 237. I am not required to take the view that is most favourable to Mr Shepheard: Isaacs (supra). Indeed, the sentencer is not obliged to accept facts unquestioningly as the basis for sentencing as presented by the prosecution or the accused, even where agreed: Chow v Director of Public Prosecutions and Anor (supra) at 606.
Here the facts were not in dispute, only the interpretation of them. In that event I am entitled to act on them for the purpose of sentencing: Sagdic v Gowing (1995) 82 A Crim R 26 at 31. I take into account that Mr Shepheard sent a pornographic video to the victim. Curiously, this was in response to the victim sending one to him. That of course did not relieve a 50 year old from behaving with decency, even if he may have believed at that time that the victim was at least, but on the evidence only recently turned, 16 years old. The statement quoted at [13] above does not distinguish between the various communications and, on its plain reading, clearly says that there were explicit sexual communications.
I accept for the purpose of these proceedings that some of the 58 communications from Mr Shepheard, in addition to the video, were of an explicitly sexual nature. I am not, however, able to find how many were such, nor the precise nature of the sexual content. In the event, it perhaps does not affect the sentence very much, since the real gravamen of the offence comes from the later communications with UCO.

The Pre-sentence Report

Ms Warwick sought to draw comfort from statements made to the author of the Pre-Sentence Report by Mr Shepheard. For example, she suggested that the sums of money shown as being earned by Mr Shepheard showed that he had plenty of funds available to travel to Canberra, and that I should not rely on the statement that his travel was restricted by financial reasons. Similarly, she submitted that I should accept from his statement that Mr Shepheard “just wanted to know what kind of person the victim was” as showing that he had no intention of actually procuring the victim to engage in sexual acts.
Mr G Farmer, who appeared for the prosecution, referred me to Qutami (2001) 127 A Crim R 369 where Smart AJ, with whom Spiegelman CJ and Simpson J agreed, said at page 377:
There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements.
There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken, great caution will be exercised in respect of the weight, if any, given to those statements.

This does not of course mean that no weight can be given to such statements but they must be approached with great caution: R v Milojevic [2001] NSWCCA 461 at [18]-[19]. This perhaps applies particularly with respect to exculpatory statements: Buonocore v R [2006] NSWCCA 159 at [12]-[14].

I am not prepared to find that Mr Shepheard was able to travel but was only restrained by his wish not to take the matter further with the victim, that he got cold feet. Nevertheless the facts are that he did not travel, though such travel may well have converted the offence into the more serious one of procuring, contrary to s 474.26 of the Criminal Code 1995 (Cth).
Further, I am not prepared to accept that he was simply curious, but I accept that, particularly on the plea of guilty, he had an intention to groom the young person for the purpose of sexual activity in the future, even though that sexual activity never, of course, took place.

Property

Ms Warwick also asked me to take into account that when he was arrested Mr Shepheard’s abode was left unattended and a large number of DVDs and CDs were apparently stolen. Certainly under s 16(a) of the Crimes Act 1914 (Cth) I must take into account “injury, loss or damage resulting from the offence”. This, however, does not seem to me to fall within that category. There was, in addition, the most limited evidence about this, much less how or why or when it occurred and how much was involved. Whilst I am sympathetic to the fact, if it be so, that Mr Shepheard suffered a loss of valuable property as a result of his arrest, it does not seem to me that I can take it into account on this sentencing exercise.

Relevant Factors

Mr Shepherd has pleaded guilty and this has spared the victim from having to give evidence. The plea was not, however, entered at an early stage and its weight is therefore somewhat limited. That it has facilitated the course of justice is an important factor, though his failure to attend his first sentencing hearing somewhat dilutes this benefit. Further, the case was a strong Crown case, which also moderates the effect of the plea: R v Ferrer-Esis (1991) 55 A Crim R 231. Nevertheless I take it into account.
The facts have an odd problem, too. While there is a real victim in the person of the young male, it is reasonably clear that Mr Shepheard would most likely have thought that he was at the time of initial contact above the age of 16 years. Nevertheless, when UCO did mention his age Mr Shepheard continued contact and, indeed, expressed neither surprise nor concern. It can be inferred that this meant that he had no particular view that the victim was over 16, or at least he was reckless as to his age. Thus, there was a real victim, but not when the precise evidence of the offence was committed. This perhaps relieves me of the need to consider in detail whether the offence is more serious when there is a real victim, though I am inclined to think that the authorities now take into account specifically the presence of a real victim: Tector v R (supra) at [52], and R v Searle (QSC, Lyons J, 15 June 2007, unreported) at p 8.
In the latter case, the court did “not consider that [where there is no real victim but an undercover operative] significantly detracts from the seriousness of the offences”. It seems to me that, even without a real victim, the offences are serious, especially given
the width of opportunity provided by modern technology for the commission of such offences and the difficulty of detention. There was however, in the actual terms of the indictment to which Mr Shepheard has pleaded guilty, a real victim here and I have to take that into account.
I note, too, that Mr Shepheard did little to hide his identity, as occurs in some cases. He used his first name, later mentioned his actual suburb of abode and, unlike other communications with the victim in this case, used a mobile phone which allowed him easily to be traced. Nevertheless, there was a significant element of deception, in that
he reduced his age by 30 years, obviously to make himself less threatening and more attractive, an important element in the grooming process.
I take into account that he did not actually meet the victim, though this may have made it a more serious offence. I also take into account that he had ceased communicating with the victim some months before UCO resumed contact. While there may seem to be an element of enticement in this resumption of contact, the actual contact was innocuous and it was entirely the instigation of Mr Shepheard that the communications resumed at an explicit sexual level. I also note that his last communication was five days before his arrest. His counsel submits that he had decided to terminate the communication. There was no evidence of this, and there had been some gaps in some days in their communications before this. This is not an inference I am prepared to draw. In any event, the offence had by then already been committed.
Mr Shepheard has been employed, certainly up until his arrest and then again while on bail, and I received a letter from one of his employers to say that he was a reliable, hard working employee, who got along well with other employees and management. I also received a letter from his mother who stated that he was a good help to them, to her and his father, and that his father was not in good health. He was said to be assisting them with a number of domestic duties. There were prospects of rehabilitation, as I have mentioned before, although those are somewhat mixed.
I take into account that the communications were very sexually explicit and included reference to explicit sexual acts proposed between Mr Shepherd and the victim/UCO. I also take into account that Mr Shepheard offered inducements, namely, a trip to Perth for which he would pay and even for the victim/UCO to live with him as incentives to ensure meeting. I take into account the amount of communication, 858
messages over a relatively sustained period, and the escalating sexual content of the communications.

Sentence

The courts have uniformly regarded this as a serious offence which almost inevitably requires a custodial sentence, though suspended where the offence is of a very limited nature and there are substantial mitigating circumstances: R v Budd (DC(NSW), Charteris DCJ, 2 October 2007, unreported) at p 18. I have had regard to a number of cases submitted to me by the prosecution. They show a range of penalties. Some refer to the more serious offence of procuring, though this current offence is a precursor to that one.
In some ways the case of R v Gajjar (CC(Vic), Millane CCJ, 20 June 2008, unreported) is the most helpful. There the offender pleaded guilty to one count of grooming and was sentenced to two years and six months’ imprisonment, to be released on recognizance after serving eight months. The defendant was 28 years of age and communicated with the undercover operative posing as a 14 year old girl. The offence occurred over a period of only two days, where the communications, graphic in nature, indicated an intention on behalf of the offender to corrupt an individual who claimed to be sexually inexperienced, and a persistence in arranging a meeting with the victim. Further, the defendant offered incentives to induce an in-person meeting. Millane CCJ took into account the offender’s prior good character, co‑operation with police, early plea of guilty and the short duration of the offence.
In some ways this offence is less serious than that in R v Gajjar (supra) Here a meeting was actually organised but never took place. Here, the victim was clearly one of some perhaps limited sexual experience because of the delivery of the video. There
were, however, more serious aspects here. There was a greater age difference between Mr Shepheard and the victim then in R v Gajjar (supra). The offences here occurred over a longer period of time. There was not a real victim in R v Gajjar (supra) and, though not greatly significant, Mr Shepheard has, unlike the other offender, a criminal history which militates, to some extent, against leniency. Mr Shepheard’s plea of guilty was not at an early time.
Mr Shepheard, please stand. I sentence you to imprisonment for this offence for two years and nine months, to commence on 14 April 2008 to take account of your pre-sentence custody. I direct that you be released after serving nine months, that is, on 14 January 2009, upon you entering into a recognizance, yourself, in the sum of $500 with the following conditions:
1. That you are to be of good behaviour for a period of three years;
2.That you submit yourself to the supervision of the Chief Executive or his or her delegate, and obey all reasonable directions about sex offender treatment;
3.You are, on release, to seek to be admitted to a sex offender program and, if admitted, to continue with the program until it is completed.
By consent, I also order that pursuant to subs 48(2) and 316 of the Proceeds of Crime Act 2002 (Cth), in respect of the conviction of Keith Shepheard on 9 October 2008, the property specified in the schedule be forfeited to the Commonwealth. Pursuant to s 56 of the Proceeds of Crime Act 2002 (Cth), the court specifies the value of the property specified in the schedule as $40. Each party is to pay its own costs of and incidental to the proceedings. The schedule refers to an LG brand U8180 mobile and “3” network prepaid USIM card.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 30 October 2008

Counsel for the Crown: Mr G Farmer

Solicitor for the Crown: Commonwealth Director of Public Prosecutions

Counsel for the Defendant:  Ms Theresa Warwick
Solicitor for the Defendant:  Mr Paul Edmonds
Date of hearing:  9 October 2008
Date of judgment:  13 October 2008