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: 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
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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.
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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.
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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.
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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
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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 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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