PARTIES: Warwick Martin Rampley (applicant) The Crown
JUDGMENT OF: McClellan CJatCL Latham J Price J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 22/05/2009
LOWER COURT JUDICIAL OFFICER: Solomon DCJ
LOWER COURT DATE OF DECISION: 2 October 2009
COUNSEL: M Picken (applicant) P Mcguire (Crown)
SOLICITORS: Australian Criminal Law Specialists Pty Ltd (applicant) Commonwealth Director of Public Prosecutions (Crown)
CATCHWORDS: CRIMINAL LAW where criminality was of a very serious nature where offender had a prominent mitigating case whether the sentence was manifestly excessive consideration of similar cases dealing with sexual activity offences discussion of the purpose of the offence of using a carriage service to groom a person under 16 years of age sentence within range and not manifestly excessive
McCLELLAN CJ at CL: The applicant pleaded guilty in the Local Court to one charge contrary to s 474.27(1) of the Criminal Code 1995 being:
“Between 19 June 2007 and 4 October 2007 at Thornleigh, New South Wales, used a carriage service to transmit a communication to another person, namely a fictitious recipient and the communication contained material that was indecent, with the intention of making it easier to procure the recipient to engage in sexual activity with himself and the recipient was someone he believed to be under 16 years of age.”
The maximum penalty for the offence is imprisonment for 12 years. The applicant was sentenced in the District Court to imprisonment for a term of 2 years and 9 months and ordered to be released under a recognisance release order after serving a period of 1 year and 6 months. The sentencing judge allowed a 25% reduction in the sentence because of the early plea of guilty. He seeks leave to appeal against the severity of the sentence.
The relevant facts were agreed between the applicant and the prosecution and were recorded by…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Rampley v R [2010] NSWCCA 293
Case
[2010] NSWCCA 293
Decision Date
CaseChat Overview and Summary
The case of Rampley v R involved the applicant, who had been found guilty of using a carriage service to groom a person under 16 years of age. The applicant appealed against the sentence imposed, arguing that it was manifestly excessive. The appeal was heard by the court which had to determine whether the sentence was appropriate given the nature of the offence and the mitigating factors presented.
The legal issues before the court included the consideration of previous cases with similar circumstances and the appropriate range of sentence for the offence of using a carriage service to groom a person under 16 years of age. The court had to weigh the seriousness of the criminal conduct against the mitigating factors presented by the applicant and determine whether the sentence imposed was within the range of sentences typically imposed for such offences.
The court found that the sentence imposed was within the range of sentences typically imposed for similar offences. The court noted that the purpose of the offence was to protect children from the dangers of online grooming and that the sentence needed to reflect the seriousness of the criminal conduct. The court also considered the statistics relating to the offence and found that the sentence imposed was not excessive when compared to similar cases. The court ultimately concluded that the sentence was not manifestly excessive and dismissed the appeal.
The court did not make any further orders in relation to the case. The sentence imposed by the District Court was upheld, and the applicant's appeal was dismissed. The court's decision provides guidance to sentencing courts in relation to the appropriate range of sentences for this type of offence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
CLELLAN CJ
The applicant drew attention to a number of decisions both in New South Wales and other States which it was submitted were of assistance in establishing an appropriate sentence in the present case. The cases to which reference was made and the applicant’s submissions with respect to them are set out below.Some previous decisions In Western Australia v Collier (2007) 178 A Crim R 310 the Western Australian Court of Appeal considered a similar state provision; albeit one that involved an actual intention to procure that carried a similar maximum penalty, namely 10 years imprisonment. Collier involved 3 offences contrary to s 204B(3)(b)(i) of the Criminal Code WA. The offender pleaded guilty. The facts were similar to the present case and involved a police officer posing as a twelve year old girl with explicit conversation about instruction with respect to masturbation. Collier was arrested when he attended a public park for the purpose of meeting the child. He acknowledged sexual activity was a real possibility. At first instance, a 2 year suspended sentence was imposed. On appeal, the Court concluded that the sentences were manifestly inadequate. The Court considered the sentences imposed by Queensland courts in Kennings [2004] QCA 162; Campbell [2004] QCA 342; Burden [2005] QCA and Hays [2006] QCA each relating to similar conduct contrary to s 218A Criminal Code (Qld). The maximum penalty provided for that offence was five years imprisonment. Allowing for the necessary reduction because of double jeopardy from a successful Crown appeal, the Court of Appeal imposed a head sentence of 18 months with a non-parole period of nine months. The applicant submitted that allowing for the fact that the Court of Appeal would have imposed a longer sentence if presiding at first instance, the ultimate penalty imposed was well short of the sentence imposed in the subject case at first instance. In R v Shepheard [2008] ACTSC 116 Refshauge J imposed a sentence of 2 years 9 months with an effective non-parole period of 9 months for a breach of s 474.27(1) of the Criminal Code 1995. The offender had entered a late plea of guilty. He had made almost 900 communications and there were multiple instances where pornography was transmitted. The offender communicated initially with an actual child victim before under cover police became involved. The offender had a prior criminal history. The sentencing judge relied upon the Victorian County Court decision of R v Gajjar [2008] VSCA 266 apparently under the impression that it was a grooming case (under 474.27) when in fact it was a procurement (s 474.26): see Gaiiar. The applicant submitted that the objective criminality in Shepheard was higher than the present case, and favourable matters were not as significant. The applicant emphasised that the non-parole period imposed in Shepheard was half of that imposed on the applicant.The statistics in relation to s 474.27(1) The JIRs statistics record the situation in respect of only four offenders who were dealt with under the relevant section from March 2005 to December 2008. Only one offender received a full time custodial sentence being 3 years with a non-parole period of two years. The number of total cases cited preclude any real weight being placed upon the statistics.District Court sentences