R v Terrence Edward Laybutt

[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

5. There was an agreed statement of facts which formed part of the Crown bundle which was exhibit A. Without intending in any way whatsoever to minimise the significance of the conduct of the offender those facts, which run for some nine pages and are in evidence, can be summarised as follows:

5.1. The offender initiated contact with the AOI online by a website “ChatIW”. The first contact was on 7 January 2020. The offender was listed on the website as being a 58-year-old male from New South Wales, though it is unclear whether this would be clear to the AOI, or any other user, though in this case there is no suggestion of the offender seeking to hide his identity. The AOI told the offender “I don’t have big boobies yet” and that she was 14. The offender said that he was “very horny” and asked if the AOI had a “pic”. He also in this first conversation asked the AOI “do u like cock,” and told her that “I’m very hard”. These communications of the very first contact are significant in my view. As will be discussed below it is part of the case of the offender in seeking to mitigate his sentence that he was motivated by loneliness. In my view comments such as these being made at the first contact may support the view that the offender was seeking something other than a remedy for loneliness.

5.2. That same day a conversation occurred via the Internet application Skype. The offender used his own name as his online identity and gave his mobile number to the AOI. He asked her to send him a naughty pic. The offender made comments such as “I think you want to be naughty” and says he wants her to watch him “stroke my cock”. In later conversations the offender discussed with this thought to be 14-year-old girl whether she masturbated and encouraged her whilst he spoke to her to rub her nipples.

5.3. The offender indicated to the AOI that he was a retired teacher and that part of his job was to teach “sex ed” to years 7, 8, 9 and 10.

5.4. The following day, 8 January, the offender revealed his face on a Skype call and displayed his erect penis and commenced masturbating and spoke of semen, “precum” and lubrication. He masturbated for the duration of the 40 minute Skype call ([17] of agreed facts). In this conversation he said he was getting aroused and asked the AOI if she was touching herself, and said “you would probably be stroking this for me. Would u do that?”. The offender spoke of oral sex and then said to the AOI “what you need to do is you need to be naked and you need to sit on it. Could you imagine that going into your pussy”?

5.5. The offender spoke of meeting the AOI, saying “We could make a date”. He told the AOI that she should get a sexy bikini.

5.6. Following conversations were to a similar effect. Further arrangements were made for a meeting and the offender told the AOI “I think its best not to tell them” in reference to her friends.

5.7. The offender attended the meeting place in a car with initialised number plates “TL” and was arrested. He was cautioned and said “but I didn’t do anything. We were just talking.” His vehicle was searched and within it was found 14 condoms, pillows, a doona and picnic blankets.

5.8. A repeated aspect of the communications was the “politeness” of the offender, saying for example “Remember, you do what you want to do”; see [31] of the agreed facts.

Objective seriousness

6. The Crown submitted that the offending falls “above the mid range” of objective seriousness for offences of this kind, which I take to mean in the mid range, though it could be construed as meaning the high range. The question is, for this type of offence how serious is it objectively.

7. I assume that the submission for the offender is that it is below the mid range of objective seriousness given that the ultimate result argued for is a sentence which sees no time spent in custody. Alternatively it may be that the assessment is higher than that but it is argued that when all other things are taken into account such as the strong subjective case that no time in custody is required.

8. The Crown submissions at [16] set out a long list of matters as to why it should be considered above the mid range of seriousness objectively. The weakness in that submission in my view is that much of what is there set out is what is necessary for the committing of the offence. For example [16(b)] refers to the introduction of sexual matters into the communications which is something in my view which would be expected if there is to be the procurement of a young person for sex. Similarly [16(g)] refers to the offender being sexually aroused which in my view again is something that might be expected. The escalation of the communications suggesting there be a meeting is also something that might be expected in the commission of an offence of this type.

9. Other matters relied upon by the Crown better support the submission. The device of the offender to make reference to his work as a teacher so as to gain the confidence of the AOI. Further this is a person frankly revealing to the AOI his appearance which would have made it apparent that he was a much older person than the AOI. The use of the carriage service also extended over more than the initial chat room and extended to phone calls and Skype. It persisted for a period of approximately one month. It extended to instructions to the AOI as to how to masturbate and also encouraged the “child” not to disclose what was being planned. The offender sought to provide some kind of assurance to the AOI that he would look after her and would prevent pregnancy. There is also what I have described above as the offender’s “politeness”, which perhaps could more accurately be described as obsequious deceit. This, the reference to teaching, and the assurance re pregnancy all aim to procure the “child” to engage in sexual activity by gaining the “child’s” confidence. One matter not referred to by the Crown but which is in the agreed facts is the fact that on 8 January 2020 having shown the AOI his face he then showed via Skype his naked genital area depicting an erect penis and that the offender then commenced masturbating; see [17] of the agreed facts. At [19] of the agreed facts there is set out transcript of the offender asking whether the AOI can see what he tells her is “pre-cum” which he explained was a little bit of semen coming out and then asked “are you feeling naughty yet”.

10. It was submitted for the offender that there was no attempt by the offender to disguise his name and that he gave his phone number out and that the conversations occurred on 11 days. The point being made was that this was a “one off”. It is true that there was no attempt at concealment, yet my view is that does not mitigate the offence, but reflects the absence of a possible aggravating matter. The argument that this is a one off suffers from the fact that it occurred on 11 occasions over a four week period.

11. In my view the seriousness of the offending goes beyond the low range and into the mid range. I come to that result due to the repeated nature of the communications constituting the offence, the graphic and inappropriate language, seemingly sought to be dressed up as appropriate by reason of being educational, the matters I have identified that seemingly seek to gain the “child’s” confidence, and the gross and inappropriate physical actions of the offender, and his encouragement for the AOI to keep it secret.

The subjective case

12. Part of exhibit A was a sentencing assessment report (“SAR”). It describes the offender’s circumstances. This includes being in an intimate relationship with his partner for three years, meaning the relationship was on foot at the time of the offending. He had limited contact at the time of offending with his siblings and children and said he felt lonely. He was involved in social activities such as golf and occasional outings and we learned on the hearing being a member of other clubs.

13. He is presently a self funded retiree and had long-term employment as a physical education teacher. Other material which I will refer to shows that he had a long and distinguished career in that role.

14. The SAR describes his attitude as being ashamed and sorry for his behaviour and describing it as an absolute disgrace. The offender considered the behaviour out of character.

15. He attributed the offending to feelings of loneliness and boredom and a need to talk with someone. He tried to justify the behaviour because the initial site was expressed to be for people 18 and over (though the immediate question is why carry on as he did once it was clearly stated the AOI was 14). He said he does not understand why he continued to procure the person knowing her age.

16. The offender was assessed for sex offending by way of actuarial risk assessment by way of a STATIC-99R assessment. This assessment was not challenged in the hearing but I note it is a static test or actuarial and not based on dynamic factors but rather the assessment is limited to the fact of the offender’s age and that the victim was not related to him. That results in a score placing the offender in a very low risk level. The report goes on to say this low level assessment would mean he would not qualify for custodial based sex offender treatment programs. A report of this nature was commented upon by Leeming JA in Cowling v R [2015] NSWCCA 213, eg at [42]. Leeming JA said it is difficult to make much use of the report when it refers (as here) to a “typical” sex offender without identifying what the characteristics are of such a person. Furthermore I consider basing something simply on a person’s age and lack of relationship to the victim to be a very limited amount of information on which to base the assessment. The person carrying out the assessment does not interview the offender. The report further states that due to the current score the offender is unlikely to be considered suitable for custodial sex offender specific treatment interventions. Just why this is so is not made clear but would appear to be because the score is not such as to place the offender in the group most needing such treatment. In fairness to the offender this criticism was not put to his counsel in the course of the sentencing hearing, and despite my reservations as to the report I have taken this assessment of “very low risk range” into account favourably to him for the purposes of assessing the likelihood of reoffending.

17. The SAR describes insight into the impact of the offending by the offender as impacting on himself and family members and that he is ostracised by part of the community. It is notable that there does not seem to be any recognition of the impact this behaviour may have on the community at large, that is the misuse of the Internet with the intent to procure sex with underage people.

18. The report says the offender is willing to undertake interventions and that he is willing and able to undertake community service work.

19. The offender relied upon a report of a general practitioner Dr Yadav, which was in fact a referral to a psychiatrist. It gives some history. It notes the offender became a widower 11 years ago and that his sister-in-law died a few years after that. From the oral evidence the sister in law was a support for the offender and she died about 5 years ago. The referral notes his social activities of going to the gym, the races and golfing regularly and then says he has not many friends but does socialise and that he retired four years ago. The report notes his partner lives in Port Macquarie and visits intermittently. The offender said he had poor sleep and when he would wake up he would go on websites. He felt worthless. His appetite is not good. The offender does not drink much alcohol and does not use recreational drugs. Dr Yadav started the offender on the drug Valdoxan. I note in oral evidence before me the offender said an increase in the dosage of this medication improved the offender’s mood.

20. The offender relied upon a report dated 9 March 2020 of a Dr Mchechesi, a consultant psychiatrist. In addition to what was noted above it adds that he has three children aged 36, 34 and 32. His chief complaint was to do irrational things of late. He reported being social during the day but feeling very lonely once he was home and would chat online at night. He said he later discovered after beginning chatting that the AOI was 14 and had thought she was 18. I note this does not match the agreed facts which at [7] states the AOI told him she was 14 on what I take to be the first occasion of communication. I cannot determine whether the mistake is by the psychiatrist or whether the offender has been less than frank with the psychiatrist on that point. Under the heading “family psychiatric history” is stated that his sons have depression and the doctor queries whether his daughter is medicated for depression. Under the heading “mental state examination” it is recorded that his mood is low and that his effect is initially somewhat restricted and more reactive as the interview progressed. Under the heading “in summary (formulation)” the opinion is expressed that the offender presents with mixed anxiety and depressive symptoms mild-to-moderate and with mild insomnia in the context of psychosocial stress mainly the pending court case. It notes a background of loss and loneliness. The report arrives at a principal diagnosis of mixed anxiety and depression in the context of significant psychosocial stress.

21. There is then set out a management plan with the suggestion of increasing the Valdoxan, a step which as noted above has brought good results. Psychological therapy was encouraged to be continued and I note 10 sessions with Mr Jenkins have occurred.

22. There was no challenge to this report which establishes a low mood and some depressive symptoms which is consistent with the submission that despite being a socially active person the offender was nevertheless suffering loneliness and lack of sleep leading to online activity. When that is cross-referenced to the agreed facts I note that at [9] of the agreed facts there is Internet activity at 2:45 PM, then at [11] at 3:30 PM. No other times are stated. The agreed facts show that this is not an activity born only of nighttime loneliness.

23. In a subsequent report of Dr Mchechesi dated 27 May 2020 is confirmation of the benefit of the increased dose of Valdoxan. He now sleeps better and feels better and has improved mood. It noted the offender has been seeing his psychologist. The diagnosis was the same as before namely mixed anxiety and depression in context of psychosocial stress but is now said to be resolving.

24. The last report relied upon was of a consultant psychologist Peter Jenkins dated 20 November 2020. Relevantly it says that the offender began his teaching career in 1979. It records his attendances on the doctors mentioned above. It notes that he has attended the psychologist under the mental health care plan from 17th February 2020 to 20 November 2020 for a total of 10 occasions. The report records the carrying out of a depression anxiety and stress test which was said to reveal scores for depression in the severe range, anxiety in the severe range and stress in the moderate range though the actual tests and the results are not provided. It is not expressly stated but it appears the testing that was carried out at the date of this report. That assessment seems to be at odds with the opinion of the psychiatrist of 27 May for given that his condition had improved and was resolving at that time it seems incongruous that he would be in a severe state of depression six months later.

25. A personality assessment inventory was also carried out which is designed to assess the validity of the earlier testing and the results were consistent with the results being valid. Further the PAI clinical profile showed an elevation on the depression scale. Under the heading treatment considerations there is discussion of suicidal ideation and it is stated the offender reported experiencing periodic and perhaps transient thoughts of self harm. The diagnosis by the psychologist was of dysphoric mood disorder and adjustment disorder with mixed anxiety and depression.

26. A treatment plan was outlined recommending a minimum of 10 weekly to monthly psychological consultations which I presume given the date of the report is in addition to the initial 10 sessions. It is said that the offender will benefit from cognitive behaviour therapy.

27. The psychologist undertakes to provide psychological treatment in accordance with the plan he outlines which includes psychological consultations, liaising with Dr Yadav and the continuation of his medication and treatment by a psychiatrist as required.

28. A character reference was provided by the offender’s brother Brian. He is a principal of the St Ambrose Catholic Primary School at Pottsville. He sets out a history of the offender of experiencing a nurturing family and a successful career and marriage with three children who were excelling. Brian Laybutt then says that on the death of the offender’s wife his life changed though just how apart from losing the life partner is not stated other than that with the children being away he was now at home by himself. In 2016 the offender retired and planned to pursue his interests of fishing, golf, car club, bird club, camping, gardening and socialising which based on the evidence I heard is what he did. His outward demeanour remained upbeat.

12. Brian Laybutt states that the offending conduct is a contradiction of the person that the offender is. He says the offender is remorseful and has taken steps to address his condition and that he accepts the inappropriateness of his conduct and has expressed a deep sense of regret and is genuinely repentant. He expresses the view that with ongoing support he is confident the offender will resume to be the person that his friends and family know him to be, namely a person trusted in the community and respected and upholding family values.

13. There was a second testimonial from a Mr Brian Heath a former principal of South Grafton high school where the offender once taught. He speaks highly of his qualities as a teacher and of his devotion to that vocation. He also attests to the offender accepting responsibility for his actions.

14. Also in evidence for the offender were excerpts of local newspapers relied upon to show the degree of public humiliation experienced by the offender. In evidence the offender stated that it was suggested to him that he not attend his golf club and that a complaint had been made at the vintage car club leading to him staying away from that club and that he had been confronted in public in front of the Grafton courthouse being called a paedophile.

Section 16A Crimes Act 1914

32. Section 16A sets out the matters to which the Court is to have regard when passing sentence for federal offences. By subsection (1) the Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances. Subsection (2) in a non-exhaustive way sets out the matters that are to be taken into account. It is only necessary to address the matters relevant to this case. The first of these is the nature and circumstances of the offence. I have dealt with this above in assessing the objective seriousness of the offence.

33. The section provides for taking into account the personal circumstances of any victim of the offence. There is no victim in this case. That fact is not a mitigating factor but rather it means there is absent a possible aggravating factor; see for example R v Kennings [2004] QCA 162.

34. Subsection (f) refers to whether a person has shown contrition for the offence. I am satisfied in this case that the offender has shown contrition. His evidence to that effect and his remorse and regret and acknowledgement of having done wrong was not challenged. It is supported by his supporting material from the psychologist and the psychiatrist as well as by the testimonial of his brother, and by the offender’s own evidence. The one reservation I have in this regard is that I have come to the conclusion that there is an element of denial by the offender as to acknowledging his wrongdoing. This is a difficult aspect to assess because I consider that there is an element of the loneliness contributing to the offending as argued for the offender, but I have identified a number of inconsistencies in his case to support that set out above (eg the daytime communications). Thus whilst I am unreservedly satisfied as to his remorse I am not entirely satisfied that there has been a complete and frank acknowledgement by him of the motivations of his own wrongdoing (or perhaps it could be equally well described as a lack of insight). Connected to this loneliness argument is the argument as to the offender suffering depression. I accept on the above evidence that the offender does suffer from depression, and that it was worse at the time of the offending than it is now. This fact was relied on in oral submissions to go to support the argument of a low likelihood of reoffending, and was not argued to lessen the offender’s moral culpability. I accept that submission and treat this aspect of the matter in that way.

35. The section allows for taking into account a guilty plea which the offender argues should result in a 25% discount. There was no argument to the contrary and I will apply a 25% discount.

36. Deterrence needs to be taken into consideration. There is plainly as the offender’s counsel frankly acknowledged a need for the sentence to reflect the need for general deterrence. As was explained by McClellan CJ at CL in R v Fuller [2010] NSWCCA 192 at [25] the use of the Internet in the way it was used by the offender may cause considerable harm to young people. As his Honour explained at [24] the offence is constituted by the use of the carriage service to transmit a communication regardless of whether or not sexual activity then takes place. Nor, as noted at the beginning of these reasons does it matter that the communication is with a fictitious person, emphasising the very point that it is the transmission that is the offending accompanied by the necessary intent. There needs to be a sentence properly reflecting this aspect.

37. I accept the submission for the offender that there is a lesser need in this case for specific deterrence. No real argument was made to the contrary by the Crown. That said the reservation just identified as to the offender’s acknowledgement of, or insight into, his offending does allow for the giving of some weight to this aspect. In light of how the matter was presented however I do not consider there needs to be a sentence reflecting specific deterrence in addition to general deterrence. Counter balancing the concerns I have just identified in any event are the facts that the offender has taken steps since his arrest to seek treatment and to identify his depressive symptoms and take appropriate medication and seek counselling. When the offender’s blemish free life to this point is considered and those steps are taken into account on a commonsense approach the likelihood of reoffending must be low with a consequent lack of need for specific deterrence.

38. There needs to be adequate punishment for the offence. To that I would add there needs to be a proper and public denunciation of this conduct.

39. By subsection 16A(2)(m) the Court is to consider the character, antecedents, age, means and physical or mental condition of the person. This is the main point of the offender’s case. He is now 64 years of age. For his entire life he has been a pro social law-abiding hard-working family man and a credit to himself and his family. The list of achievements set out in the submissions in writing for the offender as to his teaching career and the praiseworthy effort that he has made in playing a tutoring role in the lives of 37 years of school children is no small matter. I do not consider that because of the nature of this offending that good character should not be given any weight. Rather it is a factor to be given such weight as on the facts supporting it that it should be given. The competing factors in any particular case may mean that despite good character a strong sentence, including of imprisonment, may result.

40. One concern I have is that given the psychological state of the offender that a term of imprisonment may undo the improvements to his health which may in turn make him more likely to reoffend upon his release. The section requires consideration of the prospect of rehabilitation. That rehabilitation is well underway. What this identifies is the ever present tension between the various objects of sentencing; including on the one hand to assist in rehabilitation and on the other to ensure a sentence reflecting adequate deterrence and denunciation amongst other matters.

41. The section also refers to the effect of the sentence on family members or dependents of the offender. Whilst the offender has a caring family I do not think that there is anything of significance that flows from that consideration.

42. I note that subsection (ma) refers to the person’s standing in the community and whether it was used in aid of the commission of the offence. That section was enacted after the conduct of the offender constituting the offence and therefore does not apply. Furthermore I do not think the argument holds good in this case in any event for it was not due to his standing in the community as a teacher that he was able to communicate with the AOI. The issue becomes a little opaque because the offender did make reference to being a schoolteacher and wanting to teach the AOI various things so there is a basis for making that argument. As noted however it is not an express consideration under the section and was not suggested that it should be taken into account in that way. Rather it is a matter that goes to the issue of gaining the AOI’s confidence that I referred to in considering objective seriousness.

43. Lastly by subsection (2AAA) the court must have regard to the object of rehabilitating the person when the offence is a child sex offence including to impose any conditions about rehabilitation or treatment options that are known at the time of sentence and when determining the length of any sentence or non-parole period to include sufficient time for the person to undertake a rehabilitation program. I consider this significant because it is a statutory recognition of the importance of rehabilitation extending beyond the reference to rehabilitation found in the earlier subsection.

Discussion

44. In my view the evidence establishes a sexual attraction to children on the part of the offender. The communications on 7 January 2020 strongly support this view. That was the first occasion of contact. On that occasion the offender said he was horny, said he was hard, and asked the AOI “do u like cock”. The offender by his plea admits an intention to procure the AOI to engage in sexual activity, again supporting the view of an attraction to children. In cross examination he admitted that he derived some sexual pleasure from the communications but added “not a lot”. He said he was more wanting to chat than be sexually involved. This too is contradicted by the facts as he masturbated whilst talking to the AOI and on the occasion of his arrest was found in possession of condoms and blankets. Despite his earlier partial admission he later in cross examination denied that there was the attraction of sexual activity. It is these contradictions despite the obvious evidence of sexual attraction that together with the other matters set out above give me concern that the offender lacks insight as to his motivations. It was squarely put to him that he had a sexual interest in children and he said he did not and that he had taught for 37 years and had no sexual interest in young girls. When asked then why commit the offence he had no real explanation.

45. A point emphasised by counsel for the offender was to raise the rhetorical question of why the offending occurred. The offender presents an exemplary subjective case of a lifetime of meaningful employment and what could be termed public service in the raising of children in an unblemished way. Perhaps, as argued by the offender and accepted to some extent by me, the reason is because the offender had become lonely though that did not entirely fit the facts. The offending occurred in the period following a Christmas with family, a New Year’s with friends and in the midst of a trip to Melbourne to watch the tennis. At the time of the offending the offender was in an intimate relationship.

46. Whilst understanding why the offending occurred would be useful in charting the future course, the matter can also be approached by seeking to assess the likelihood of reoffending. I have discussed the evidence on this issue and conclude the likelihood is low for reasons including the mental health treatment and support that has been available to the offender including medication which he states has made a marked difference, and the loyal support of family and friends, though it is noted little was said of support by his children. The offender in my view is most likely to be significantly personally deterred from further offending not only because of medical treatment and other supports, but also from his experience of these proceedings. Not only are there these proceedings but there is the associated bail conditions as well as the extra curial social ostracision that he has experienced. It was submitted for the offender that the social impacts on the offender amounted to a form of extra curial punishment, and should lead to a lesser sentence. I propose to treat that factor in the same manner in which it was treated by McClelland CJ at CL in Fuller, which at [38] was to take it to lessen the likelihood of reoffending.

47. Both parties made helpful reference to what were referred to as comparable cases. In R v Hizhnikov [2008] VSCA 269 it was said an offender under this section “will ordinarily expect to receive a term of immediate imprisonment”; at [27]. Yet general principles also make clear that every case must be determined on its facts. It cannot be the starting point that each case results in a full-time custodial sentence. Rather what the authorities are saying is that due to the seriousness of this offending ordinarily the likely result is one of imprisonment. The “comparable” cases referred to by the parties bear this out with all of them bar one resulting in imprisonment and with the one exception being held on appeal to be grossly inadequate but with the appeal court not intervening given Crown appeal principles (this was the case of R v Hizhnikov).

48. In Hiznikov the offender suffered from depression and had engaged in treatment and had good prospects of rehabilitation and had no criminal history and displayed contrition. The offender was 25 years of age at the time of sentence. The website on which he contacted the person was “plainly designated” to be a vehicle for communicating with girls under 16 (a point of distinction to the present case) and he believed he was communicating with a 14-year-old girl but was in fact an AOI. The case is thus very comparable to the current case.

49. At paragraph [27] it was stated that deterrence both general and specific will be the paramount consideration when sentencing an offender for an offence of this type. At [28] the court said:

“Had we been sentencing the respondent he would almost certainly have been required to serve a term of actual imprisonment. In that sense we accept the Crown’s submission that a wholly suspended term of imprisonment was grossly inadequate in the circumstances of this case. That is so notwithstanding the various mitigating circumstances upon which the sentencing judge relied in imposing the sentence that she did. Those mitigating factors were outweighed by the gravity of the offence including the calculated and predatory behaviour of the respondent and his seeming willingness to go on with the venture. Moreover, the sentence imposed was extraordinarily light by comparison with other sentences imposed in similar cases in Victoria and within the Commonwealth”

50. The facts of that case on a subjective basis included that the offender had responded well to treatment for his depression, that his prognosis was good, and that it was very unlikely that he would reoffend though the doctor considered he would need ongoing counselling and antidepressant treatment for at least the next two years; see at [17]. In the following paragraph I note that the judge was not entirely convinced by the psychiatric evidence. The offender there also had a close and supportive family background again not far removed from the position in our present case.

51. The concluding paragraphs of Hiznikov make the point that to send the offender to jail (subsequent to the appeal) for a relatively short period would be largely self-defeating given the already good prospects of rehabilitation were being enhanced by his continuing treatment.

52. R v Fuller was a decision of the New South Wales Court of Criminal Appeal where a priest was sentenced to a term of six months imprisonment with no non-parole period. On appeal he was sentenced to 18 months imprisonment with a six-month non-parole period. The court found that the sentencing judge had taken into account inappropriate considerations relating to the vow of celibacy and other matters. By the time the matter was dealt with on appeal the six month sentence imposed by the sentencing judge had expired and the conclusion reached was that a further period of incarceration was not required. The conclusion continued however that the overall term should be extended by 12 months to mark the seriousness of the offence and to provide for a period of supervision for the respondent.

53. In Fuller the charge was the same as in the present case. The offence was committed using the Yahoo! Seven messenger program. The offending occurred over a period approximately the same as in the present case. There were 13 online communications with an AOI. In Fuller the offender instructed and encouraged the AOI to masturbate herself and on occasions showed video images of himself exposing and masturbating his penis. He also suggested that they meet and suggested that when they met he might masturbate her and she might masturbate him and that he might perform cunnilingus on her.

54. The facts are therefore very similar to the present though in my view the summary just given shows that in Fuller the offender went further with his explicit behaviour in his instructions as to masturbation to the AOI and his detailing of what they would do when together.

55. In R v Gajjar [2008] VSCA 268 a sentence of two years and six months was imposed with the offender released on a recognisance after serving eight months. A severity appeal was dismissed. In that case the offender was 28 years old, married with one child and of prior good character and had entered a relatively early plea of guilty and largely cooperated with police. He initially pretended to be a 20-year-old female before revealing he was a male which is a fact that distinguishes it from our present case and adds to the seriousness of the offending. That said the offending occurred over two days and not 4 weeks.

56. The offender relied on a case of R v Nguyen [2016] NSWDC 395. The order made there was to refer the matter for an assessment for an ICO, and I note that there was no argument for an ICO outcome in the present case. Whilst ultimately I would imagine that assessment would not result in an ICO due to the provisions of section 67 of the state legislation, it does show that a non-custodial result can occur which is in any event not in dispute. In that case the communications continued for some three months and the offender lied about his age and sent photos that were not him and often discussed sexual matters including how to masturbate and talking of having penile/vaginal intercourse. One point relied upon from this case by the offender are the comments made about good character. His Honour Judge Berman referred to the Crown’s submission that good character was of less weight for offences of this type. His Honour plainly rejected that approach stating “in truth the absence of prior convictions remains an important aspect of every sentencing decision if only because it says something about the underlying character of the offender in particular as regards the need for personal deterrence and the prospects for rehabilitation”. His Honour went on to agree that general deterrence is of prime importance for this type of offence but disagreed that prior good character has less weight than it does in other offending. I have adopted this approach at [39] above.

57. In carrying out the sentencing considerations it is relevant to note section 20 of the Crimes Act (Cth). Like section 16A this was subject to amendment after the current offending. At the time of the offending section 20(1)(b)(ii) provided that where a person was convicted of a federal offence the court may if it thinks fit sentence the person to imprisonment in respect of the offence but direct the person be released upon giving security of the kind referred to in subsection (a) either forthwith or after serving a specified period of imprisonment calculated in accordance with section 19AF (which provides that a non-parole period must end not later than the end of the sentence). The amendment was addressed specifically to Commonwealth child sex offences which had the effect of requiring there to be exceptional circumstances if the release upon security was to be immediate. Thus for present purposes and bearing in mind the ultimate submission of the offender in this case section 20 as it was at the time of this offending allows for a person to be sentenced to imprisonment but then being released either immediately or after a specified period, and it does not require the satisfaction of some “exceptional circumstances” test.

Conclusion

58. There is much to be said in favour of the submission made on behalf of the offender that section 20 be utilised to achieve an immediate release so that there is no time in custody. That is because the offender has throughout his life been pro social and a worthwhile contributing member to the community. The conclusion I have reached however is that in light of the authorities discussed above, and the facts of this case as I have considered them above, that would not be the appropriate outcome. Those considerations included my assessment of the objective seriousness of the offending, my views expressed as to the various aspects of the offender’s subjective case, and the need for general deterrence and denunciation weighed together with other purposes of sentencing, including rehabilitation. The benefit the offender receives by reason of his good character and background and the other favourable subjective features of his case is, on balance taken into account with all the other factors, a lessening of the overall sentence, not a non-custodial sentence.

59. In reaching this conclusion I bear in mind also the harm that this style of offending can cause as identified by Justice McClellan. The harm to young people caused by sexual misconduct must be deterred. This does not mean that in every case there will be a custodial sentence. But having considered all the objective and subjective matters in this case including the 25% discount, my view is that a full-time period in custody is required.

60. The orders that I will make therefore will be that the offender is sentenced to a term of imprisonment of 15 months to be released on a recognisance order at the expiration of 6 months on certain conditions.

ORDERS:

61. Terrence Edward Laybutt, of the offence under s474.26(1) of the Commonwealth Criminal Code you are convicted.

62. I sentence you to a term of imprisonment of 15 months, commencing today, 25 January 2021 and expiring on 24 April 2022.

63. I order pursuant to section 20(1)(b) of the Crimes Act (Cth) on 24 July 2021 the offender be released upon the following conditions:

63.1. That the offender lodge with security the sum of $1000.00;

63.2. that the offender be released upon his own recognisance to be of good behaviour for the balance of the term of imprisonment, expiring 24 April 2022;

63.3. That the offender complete the treatment programme as set out in the report of Mr Jenkins dated 20 November 2020, either with Mr Jenkins or some other suitably qualified psychologist.

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Decision last updated: 27 January 2021