R v Terrence Edward Laybutt

Case [2021] NSWDC 2


District Court


New South Wales

Medium Neutral Citation: R v Terrence Edward Laybutt [2021] NSWDC 2
Hearing dates: 19 January 2021
Date of orders: 25 January 2021
Decision date: 25 January 2021
Jurisdiction:Criminal
Before: DCJ Priestley SC
Decision:

See [63]

Catchwords:

CRIME — Child sex offences — Using carriage service to groom person

Legislation Cited:

Commonwealth Criminal Code 1995 (Cth)

Crimes Act 1914 (Cth)

Cases Cited:

R v Kennings [2004] QCA 162

Cowling v R [2015] NSWCCA 213

R v Fuller [2010] NSWCCA 192

R v Hizhnikov [2008] VSCA 269

R v Gajjar [2008] VSCA 268

R v Nguyen [2016] NSWDC 395

Category:Sentence
Parties: Regina (Crown)
Laybutt (Offender)
Representation: BarrosGoncacbes Solicitor for the Commonwealth Director of Public Prosecutions
Rowe Counsel for the Offender
File Number(s): 2020/00036153
Publication restriction: Unrestricted

Judgment

Introduction

  1. The offender, Terrence Edward Laybutt appears for sentence on one charge under the Commonwealth Criminal Code (“the Code”) section 474.26 (1) of using a carriage service to transmit a communication to another person with the intent to procure that person to engage in sexual activity, that person being under the age of 16 and the offender over the age of 18.

  2. The maximum penalty for this offence is 15 years imprisonment. In arriving at my ultimate sentence in this matter I have taken that maximum penalty into account as a legislative guidepost.

  3. There was in fact no person under the age of 16 involved in the facts of this matter. The communications engaged in by the offender were with a law enforcement officer assuming an online identity (“AOI”). This it should be noted from the outset is not a matter of mitigation. The code expressly provides by section 474.28 (9) “it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person”, and see also R v Kennings [2004] QCA 162.

  4. The offender was born on 2 November 1956. The offending occurred in the period 7 January 2020 to 4 February 2020 so that the offender was 64 years of age at the time of the offending. He was arrested on 4 February 2020 and spent two days in custody. On his release from custody bail conditions included for approximately two months that he report two times each day to a police station and that he not leave his home between the hours of 8:30 PM and 7:30 AM and that he have no access to the Internet. In April 2020 those conditions were varied so that the need to report was reduced to once per day but otherwise the conditions remained the same. It was submitted for the offender that these were onerous bail conditions and should be taken into account in determining the sentence. I accept that submission and have taken this matter into account.

The facts

  1. There was an agreed statement of facts which formed part of the Crown bundle which was exhibit A. Without…

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AGLC
R v Terrence Edward Laybutt [2021] NSWDC 2
Case
[2021] NSWDC 2
Decision Date

CaseChat Overview and Summary

The appellant, Terrence Edward Laybutt, was convicted of using a carriage service to groom a person under the age of 16. The case was heard in the Supreme Court of Queensland. Laybutt appealed against his conviction and sentence on several grounds, including the trial judge's handling of a video recording that was to be used as evidence and the application of the principle of double jeopardy. The crux of the appeal was whether the trial judge erred in admitting the video recording and in the manner in which he directed the jury in relation to its use.

The court was required to consider whether the trial judge's admission of the video recording and his directions to the jury concerning its use were legally sound. Laybutt contended that the admission of the video recording was an error as it contained prejudicial material that was not relevant to the offence for which he was charged. He also argued that the trial judge should not have allowed the jury to view the recording during their deliberations. Additionally, Laybutt's counsel contended that the principle of double jeopardy was incorrectly applied by the trial judge, as it should have precluded a retrial of the charge after a previous trial was quashed.

The court found that the trial judge did not err in admitting the video recording or in his directions to the jury regarding its use. The court held that the video recording was properly admitted as it was relevant to the offence and necessary to understand the context of the appellant's actions. The court also held that the trial judge did not err in directing the jury to view the video during their deliberations, as this was consistent with established legal principles. Furthermore, the court found that the principle of double jeopardy was correctly applied, as the previous trial did not result in an acquittal on the merits of the offence. Consequently, the appeal was dismissed, and the conviction and sentence stood affirmed.

Orders

Orders of the court

See [63]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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