R v Stringer
[2025] QCA 81
•27 May 2025
SUPREME COURT OF QUEENSLAND
CITATION:
R v Stringer [2025] QCA 81
PARTIES:
R
v
STRINGER, Gary
(applicant)FILE NO/S:
CA No 52 of 2025
DC No 1720 of 2024DIVISION:
Court of Appeal
PROCEEDING:
Sentence Application
ORIGINATING COURT:
District Court at Brisbane – Date of Sentence: 20 March 2025 (Clare SC DCJ)
DELIVERED ON:
27 May 2025
DELIVERED AT:
Brisbane
HEARING DATE:
7 May 2025
JUDGES:
Boddice, Brown and Bradley JJA
ORDER:
Leave to appeal sentence refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the applicant pleaded guilty to one count of using a carriage service to transmit child abuse material and one count of using a carriage service to solicit child abuse material – where the applicant was sentenced to 3 years’ imprisonment on the first count and 8 months’ imprisonment on the second count – where the sentences were ordered to be served concurrently – where the applicant was ordered to be released on parole after 6 months, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), subject to a recognizance order and supervision – whether the sentencing judge erred in taking into account factual circumstances that constituted a separate, uncharged offence – whether the sentencing judge erred in the conclusions of fact – whether the sentence imposed was manifestly excessive in all the circumstances
Crimes Act 1914 (Cth), s 20(1)(b)
R v Pham (2015) 256 CLR 550; [2015] HCA 39, cited
COUNSEL:
B E Taylor for the applicant
S J Hedge for the respondentSOLICITORS:
Brisbane Criminal Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent
BODDICE JA: On 17 March 2025, the applicant pleaded guilty to one count of using a carriage service to transmit child abuse material (count 1) and one count of using a carriage service to solicit child abuse material (count 2).
On 20 March 2025, the applicant was sentenced to 3 years’ imprisonment on the first count and 8 months’ imprisonment on the second count. The sentences were ordered to be served concurrently and it was further ordered, pursuant to s 20(1)(b) of the Crimes Act 1914, that the applicant be released for parole after serving 6 months, upon entering into a recognizance order in the sum of $1,000, on the condition that he be of good behaviour for a period of two years and during a period of two years following release from custody, be subject to the supervision of a probation officer.
The applicant seeks leave to appeal sentence. Should leave be granted, the applicant relies on three grounds. First, that the sentencing judge erred in taking into account factual circumstances that constituted a separate, uncharged offence. Second, that the sentencing judge erred in the conclusions of fact. Third, that the sentence was manifestly excessive.
Background
The applicant was 39 years of age at sentence. He had no prior criminal history.
The offences were committed in the course of chat conversations between the applicant and a male unknown to him, over the course of two days or overnight. The applicant was 37 years of age at the time of the commission of those offences.
Offences
The applicant was sentenced on the basis of an agreed statement of facts. Relevantly, count 1 related to the contents of the chat conversation with that other male, during which the applicant transmitted child abuse material in the form of sexualised messages concerning the sexual abuse of children.
Count 2 related to the chat with the same male, during the same conversation, in which the applicant sought child abuse material files from that male.
The chat exchange included the applicant expressing a desire to sexually abuse young children, including drugging and raping them, encouraging the other male to locate children for that purpose, and discussing in graphic detail the acts to be undertaken with those children. The applicant and the other male also exchanged bestiality pornography and discussed meeting to engage in sexual acts together. The other male transmitted a number of media files, some of which were of a sexual nature, but none of which contained child abuse material.
A search warrant was executed on the applicant’s premises. The applicant co-operated by providing a passcode to access a mobile phone found in his bedroom. The applicant also participated in recorded conversations with police.
During the initial conversation, the applicant denied accessing child abuse material. When the applicant was later interviewed by police, the applicant specifically denied asking for child abuse material. He told police he had been involved in fantasy roleplay chats with adult males on carriage service applications, such as Grindr, which would be sexualised in nature, typically involving a father and son scenario, with the son being an 18 year old soccer player.
In a second digitally recorded conversation, in relation to the particular application used by him in his communication with the other male, the applicant said that the conversation with that other male was fantasy roleplay chat. The applicant told police that when he referred to boys or girls or kids or children in the chat, he always meant them to be 18 years or over; that when he referred to raping a schoolgirl, he meant an 18 year old girl in school uniform with it being a roleplaying of a rape scene with her full consent; that when he referred to child hookers, he meant two prostitutes of legal age; and that when he referred to finding some boy-child porn, he meant pornography involving boys of legal age.
Sentencing hearing
At the sentence hearing the respondent contended that the applicant’s criminality was at the lower end of objective seriousness for offending of this type, but that the text messages were inherently serious in nature and the offending conduct could not be considered harmless.
Defence counsel accepted the offending conduct was inherently serious, but submitted its lower end objective seriousness, the applicant’s early pleas of guilty, co-operation and remorse, the isolated nature of the offending conduct, the applicant’s engagement with rehabilitation for underlying paraphilia linked to the applicant’s own childhood abuse, and his low prospects of re-offending, established exceptional circumstances justifying his immediate release on sentence. In respect of the text messages themselves, defence counsel submitted that they were exchanged in the context of roleplay and fantasy.
Defence counsel tendered a report from a psychologist who had engaged in 14 sessions of treatment, after being consulted by the applicant, immediately following his arrest. The report described the sessions of treatment as being directed at addressing sexual deviancy and relapse prevention. The psychologist opined that the applicant was open, accepting and remorseful for his offending. After recording that the applicant had described the offending conduct as having taken place as part of a roleplay and fantasy, the psychologist opined that the applicant did not minimise or seek to justify his behaviour, although he had initially made false and minimising statements to police. The psychologist opined that the applicant met the DSM 5 criteria for an adjustment disorder, with features of anxiety and depression, paedophilia and a paraphilia disorder, as well as post-traumatic stress disorder due to his own childhood sexual abuse. In the psychologist’s opinion, the applicant’s sexual deviancy developed through his own childhood sexual abuse and that with treatment, the applicant presented a low risk of re-offending.
Sentencing remarks
The sentencing judge recorded that the applicant had pleaded guilty to offences which were limited to an online chat with another person that spanned the course of two days or overnight; that the applicant had been apprehended very quickly; that there was no allegation that an actual child was affected by either offence; and that there was no record of any other offending of any type before or since. However, the sentencing judge did not accept that the offending was low level, as although the circumstances were unusual and the period of offending confined, the circumstances exposed a heightened level of risk of grave harm for children.
The sentencing judge recorded that the crux of the offences was the harm such communications may incite and that in the applicant’s case it was more than a theoretical probability. The sentencing judge said:
“You exhorted an apparent paedophile to buy or abduct a child to drug and rape. You knew little about this other person except that he was only a few hours away, using an encrypted message service, had a contact for child pornography, and enthusiastically shared his idea about the pair of you spit roasting a child. Any right-minded person reading that would be sickened to the core, but your reaction was to press him to do it.
…
You gave this stranger some direction. You advocated drugging the child to avoid detection. You suggested using homeless children, or the dark web or the man’s contact for child pornography. All those ideas came from you.
…
You could not know what the person online would do, but he had conveyed his interests in the clearest terms. You urged him to act on that depravity without any hint that you did not mean it. He appeared to take you seriously. If he had followed through, you had no means of stopping him, nor did you show any inclination to do so. You only
encouraged.”[1]
[1]AB 36/12–30.
The sentencing judge recorded that the applicant had favourable and mitigating circumstances. He had been a contributing member to society, had a good work record and had no criminal history. He had also been the subject of his own childhood abuse. Since his arrest, he had sought therapy in relation to that abuse. Imprisonment would interrupt that treatment.
The sentencing judge also recorded that there was an issue of deportation as the applicant had been working in Australia for some time on a bridging visa and his visa would be cancelled in the event of a sentence of more than 12 months with actual custody, pursuant to the Migration Act. However, the sentencing judge recorded that the prospect of deportation, while relevant if it causes hardship, could not artificially reduce a sentence to avoid the risk of deportation.
In respect of hardship if the applicant’s visa was cancelled, the sentencing judge recorded that one of the applicant’s children had been born in Australia and it was probable that the statutory consequences of a sentence of actual custody would constitute some loss of opportunity, with hardship to the family as a whole.
The sentencing judge accepted there was utilitarian value in the applicant’s pleas of guilty, but noted that his co-operation with police was limited. Whilst he gave police his phone and his passcode and answered questions, he denied any wrongful communication. Further, he gave police two versions of offending conduct, both of which were demonstrably false. The sentencing judge expressly rejected the submission that the applicant’s conversations were part of roleplay, finding that the only reasonable conclusion, from the contents of the chat conversation, was that the applicant was serious.
The sentencing judge accepted that there were other mitigating factors raised in the psychologist’s report, including the applicant having initiated treatment, immediately after the laying of charges and the opinion expressed by the psychologist that the applicant’s paedophilia was linked to his own childhood abuse and subsequent post-traumatic stress disorder. The sentencing judge observed that whilst the psychologist considered the treatment to have been effective and the applicant’s risk of re-offending low, the factual foundation for that opinion was questionable as it was premised upon the truth of the applicant having roleplayed a fantasy, rather than being serious in his chat conversation with the other male. The sentencing judge observed that if the chat conversation was simply play-acting, the applicant’s conduct would be breathtakingly reckless, but found there was no credible evidence that it was roleplay and that the admitted conduct was inconsistent with roleplay.
The sentencing judge rejected a submission that the applicant’s mitigating circumstances represented exceptional circumstances. The sentencing judge found that whilst there was no comparable authority for offending of this type, the gravity of the conduct spoke for itself and that although it was the one and only episode of criminal offending, the inherent seriousness of that offending meant that protection of children must be a fundamental part of a proportional sentence. That factor was not outweighed by personal circumstances and could not be sufficiently addressed without actual custody.
The sentencing judge found that the applicant’s conduct in respect of count 1 was a substantial example of an offence with a maximum penalty of 15 years’ imprisonment and that public denunciation and deterrence were important, particularly given the severity of the risk to children and the challenges of policing such risks.
Consideration
Ground 1
The applicant submits that the sentencing judge sentenced the applicant on the basis of offending which would constitute uncharged criminal conduct. The basis for that contention is the sentencing judge’s finding that whilst intention was not an element of the offences, that did not render a harmful intent irrelevant to sentence.
The applicant relies on the following part of the sentencing remarks:
“An intention to procure a child, or to encourage another to harm a child, would go to the criminality. It may be considered to the extent that it does not constitute a more serious offence. The maximum penalty for count 1 is 15 years’ imprisonment, meaning that the scope for punishment is broader than attempted offences of procuring or abducting a child, contrary to either section 218A or section 36A[2] of the Queensland Criminal Code.”[3]
[2]It was conceded on sentence that the reference to 36A was a reference to 360A of the Criminal Code (Qld).
[3]AB 38/2–7.
Whilst a cursory reading of that part of the sentencing remarks suggests that the sentencing judge was having regard to the applicant’s criminal conduct constituting the commission of criminal offences with which the applicant had not been charged, a reading of that part, in the context of the sentencing remarks as a whole, supports a conclusion that the sentencing judge did not sentence the applicant on that basis.
The sentencing judge’s reference to a harmful intent, arose in circumstances where there had been a positive submission that the applicant was to be sentenced on the basis that the chat conversations were part of a roleplay, or fantasy. That submission was made in order to mitigate the seriousness of the applicant’s conduct.
In such circumstances, it was incumbent upon the sentencing judge to address that submission and make findings as to whether the applicant was to be sentenced on the basis that it was roleplay or fantasy. The finding that the applicant had not engaged in roleplay or fantasy was therefore necessary.
It was submitted by the applicant that even if that be so, it was not necessary for the sentencing judge to positively find that the applicant was serious in his messages. That submission must be rejected. The corollary of a finding that it was not roleplay or fantasy, was that the applicant meant what he said, in a serious way.
It was in that context that the sentencing judge referred to a harmful intent. Understood in that context, the reference to other offences was merely to contrast the seriousness of the applicant’s offending, which carried a maximum penalty of 15 years’ imprisonment, from other types of offending which carried lesser maximum periods of imprisonment.
Had the sentencing judge sentenced the applicant on the basis that his offending conduct constituted other criminal conduct, not the subject of a charge, there would have been an error warranting a re-exercise of the sentencing discretion. However, a reading of the sentencing judge’s observations in respect of those other offences, in the context of the sentencing remarks as a whole, supports a conclusion that there was no such error.
Ground 2
The applicant submits that the sentencing judge’s finding that the applicant’s conduct was not roleplay or fantasy, was not open. However, a consideration of the contents of the applicant’s messages supports a conclusion that that finding was consistent with the evidence.
Although the other male participant in the chat conversation described fantasies, the applicant pressed that person to make “it happen” for both of them. Further, whilst there was no discussion about a specific location, child or time, the applicant: pressed the other male to obtain some children, specifying one boy and one girl; urged him to find them as soon as possible; and identified ways such as use of the Dark Web and using the male’s contacts.
A fair reading of the chat conversation does not support a conclusion that it was roleplay or fantasy. It supports a conclusion that the applicant was serious. He meant what he said in those messages.
Ground 3
In order to succeed on a ground that the sentence was manifestly excessive, it is not sufficient for the applicant to establish that the sentence was different or even markedly different from comparable authorities. The applicant must establish that the difference was such as to speak of a misapplication of principle, or so as to give rise to the conclusion that the sentence imposed was plainly unjust or unreasonable.[4]
[4]R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28].
As the sentencing judge rightly observed, the comparable authorities sought to be relied upon,[5] were not comparable. Each involved a form of roleplay. The applicant’s criminal conduct did not, and further, the conversation was with a male unknown to the applicant and about whom the applicant knew nothing in relation to the risk that he would act on the applicant’s instructions. That factor increased the seriousness of the applicant’s conduct as it increased the risk of actual harm to children.
[5]Burton v R [2020] NSWCCA 127; Woods v R [2023] NSWCCA 37; Phibbs v R [2023] VSCA 123.
A lack of comparable authority meant that the sentencing judge was to sentence on the basis of usual sentencing principles. The sentencing remarks reveal a careful consideration of the nature and seriousness of the applicant’s criminal conduct, of the applicant’s personal circumstances, and of the other factors relevant to sentencing, pursuant to s 16A of the Crimes Act.
When regard is had to the abhorrent nature of the applicant’s conduct, including the graphic instructions given by him to an unknown male, denunciation and deterrence loomed large. Having regard to the maximum penalty for the first count, there is no basis to conclude, even allowing for the applicant’s mitigating factors of the utility of pleas of guilty, lack of prior criminal history, the consequences of his own tragic childhood abuse and his steps to obtain therapy, that an effective head sentence of 3 years’ imprisonment, fell outside of a sound exercise of the sentencing discretion.
Further, an order that the applicant be released on recognizance after serving only 6 months of that sentence, evidences a leniency consistent with the sentencing judge having given substantial regard to the applicant’s mitigating factors and, in particular, his own childhood sexual abuse, his subsequent post-traumatic stress disorder and his efforts at rehabilitation.
The sentence does not evidence any misapplication of principle. It is neither plainly unreasonable, nor unjust.
Orders
I would order:
1.Leave to appeal sentence be refused.
BROWN JA: I agree with Justice Boddice.
BRADLEY JA: I agree with Boddice JA.