Rodriguez v DPP (Cth)
[2013] VSCA 216
•20 August 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0184
| JAVIER RODRIGUEZ |
| v |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
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| JUDGES | WARREN CJ and REDLICH JA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 4 February 2013 |
| DATE OF JUDGMENT | 20 August 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 216 |
| JUDGMENT APPEALED FROM | [2012] VCC 1216 (Judge Howard) |
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CRIMINAL LAW – Sentence – Using a carriage service to cause offence – Section 474.17(1)(b) of the Criminal Code Act 1995 (Cth) – Applicant sent offensive messages and pictures to an undercover police officer in belief recipient was a 14 year old girl – Communicating sexually explicit material – Purpose not to be treated as an aggravating circumstance as constitutes more serious offending than that charged – Section 474.26, 474.27, 474.27A of the Code considered – Principle in De Simoni infringed – Early offer of plea of guilty which was initially rejected by Crown not given proper weight – Carr v The Queen [2012] VSCA 140 applied – Significant Delay – Appeal allowed – Recognisance Release Order – R v De Simoni (1981) 147 CLR 383; R v Newman [1997] 1 VR 146; R v Merrett (2007) 14 VR 392 applied.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr M Kowalski | Revill & Papa Lawyers |
| For the Respondent | Ms G Coghlan | Solicitor for the Director of Commonwealth Public Prosecutions |
WARREN CJ
REDLICH JA:
On 15 August 2012 the applicant pleaded guilty in the County Court to a single rolled up charge[1] of using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, offensive contrary to s 474.17(1)(b) of the Criminal Code Act 1995 (Cth) (‘the Code’).
[1]Originally there were five separate charges of using a carriage service to cause offence. The relevant history of the matter is referred to below.
Following a plea on 21 August 2012, the applicant was sentenced as follows on 24 August 2012.
Charge Offence Maximum 1 Using a carriage service to cause offence [s 474.17 of the Code] 3 years Total Effective Sentence: 6 months Non-parole Period: 3 months Further Orders: Recognisance Release Order in sum of $5000, on condition that the applicant be of good behaviour for 18 months Pre-sentence Detention Declared: Nil 6AAA Statement: 12 months with a minimum of 6 months
The applicant is presently on bail. He was on bail until he was sentenced. The sentencing judge refused an application to stay the sentence under s 309(2) of the Criminal Procedure Act 2009. Thereafter, the applicant served two weeks in prison before being granted bail by Neave JA on 7 September 2012.
The applicant initially sought leave to appeal on a number of grounds, the substance of which is as follows:
1.The sentencing judge erred in finding as an aggravating circumstance the fact that the applicant believed that the person he was communicating with on the internet was a child.
2.The sentence was manifestly excessive.
The relevant facts are conveniently set out in the sentencing remarks as follows:
2Between 18 December 2009 and 23 April 2010, mostly in Victoria, but on one occasion from Malaysia when you were travelling, you sent via Facebook or email, offensive communications and images to a person whom you believed to be a fourteen year old girl, certainly at least a teenager under 16.[2] In fact, you were unknowingly communicating with an undercover police operative.
[2]This finding is challenged under ground 1.
3You had set up a Facebook profile under a false name. Police were showing interest in your activity. Using a covert profile on Facebook, they sent a ‘friend request’ to you which had attached to it a photograph of a young teenage girl who was obviously not 21, as had been suggested by the date of birth given on the profile. You accepted the request the following day and commenced communications with the ‘girl’. There were a total of twelve Facebook messages and thirty-seven emails between you.
4In your first message, sent on 8 December 2009, you told the ‘girl’ you were attracted to her and queried whether she was interested in getting to know an ‘older and mature guy’. You said you were from Los Angeles. Two days later you told her you worked in the ‘glamorous world of Television production’. Eight days later, you noted that you were 29 and asked her if she had ever been with an ‘older guy, like in a sexual way’.
5On 18 December, the ‘girl’ asked you to send her some photos of yourself. You replied by asking whether she preferred ‘to be licked out’ or whether she would rather ‘give a head job’ and to email you something which you would match with one of your own, and not to be shy about it. On 21 December, the ‘girl’ told you she was fourteen and had lied on Facebook about her age, and she sent the same picture on her profile. You made repeated requests for her to send a ‘special’ picture of herself. She asked you what kind you were after and, on 26 December, you sent her an image of a male wearing boxer shorts with an erect penis. The subject header read ‘like this’. The ‘girl’ replied the following day commenting on how big the man’s penis was, asking whether it was really you in the picture and whether you had any more pictures. She reiterated that she was only fourteen.
6The next day you told her to get a camera and send a picture of herself, just like the one you had sent to her. Over the next two weeks you made the same persistent and repeated request. Clearly, you were asking her to send a sexually explicit photograph of herself. But she did not do that. Her last communication was on 13 January 2010 when she told you she thought you looked ‘real hot’, presumably referring to the penis photo.
7Thereafter, you sent a number of emails which were ignored. On 27 January and 27 February 2010, you twice sent her an image of a male defecating onto the face of another person who looked like a female. The text of the emails read: ‘When I think of you’ and ‘What I think of you’. The overwhelming inference is that you were upset and demonstrating your dislike or disdain for the ‘girl’ because she had failed to reply to you.
8On 23 April 2010, you sent her an image of a male in a pair of jeans with his erect penis exposed. The text read: ‘What do you think of my new jeans?’ I accept the prosecution submission that, at this time, you were wanting to initiate further communication with the ‘girl’, particularly as there had been such a positive response from her when in late December 2009 you sent her the other photo of the erect penis.
On 18 June 2010, the police executed a search warrant at the applicant’s address, seizing his laptop computer and a USB. On 14 October 2010, the applicant was arrested and interviewed. He admitted his internet account details and that he owned the computer seized during the investigation, but made no comment to allegations regarding the offending.
On 3 March 2011, the applicant was charged by summons issued in the Magistrates’ Court. The delay in charging was due to the need for further investigations in relation to the computer in circumstances where the applicant had not admitted the offending in his interview.
The applicant was originally charged with eight offences, namely:
Charges 1 to 5: Using a carriage service to cause offence contrary to s 474.17 of the Code;
Charge 6: Inciting the commission of an offence, namely using a carriage service to transmit child pornography material[3] (Charge 6);
Charge 7: Possessing child pornography contrary to s 70 of the Crimes Act 1958 (Vic) (Charge 7); and
Charge 8: Using a carriage service to cause child pornography material to be transmitted contrary to s 474.19(1) of the Code.
[3]See s 11.4 and s 474.19(1) of the Code. Section 11.4(5)(b) provides that the penalty for that incitement offence is seven years’ imprisonment. There is also reference on the plea transcript to the Crown bringing two additional charges of possessing child pornography and attempting to procure child pornography, but apparently these charges were dropped due to insufficient evidence.
On or about 6 June 2011, the applicant offered to plead guilty to the five charges of using a carriage service to cause offence. The Crown rejected the offer. Charges 7 and 8 were withdrawn by the prosecution at a committal mention on 24 June 2011. On 2 December 2011, following a contested committal, the applicant was directed to stand trial in the County Court on Charges 1 to 6 inclusive. An indictment containing those six charges was filed on 28 May 2012.[4]
[4]Charges 1, 3, 4, 5 and 6 each related to using a carriage service to cause offence. Specifically, Charge 1 related to the email dated 18 December, Charge 3 related to the image of the boxer shorts with erect penis sent on 26 December, Charges 4 and 5 related to the two defecation images, and Charge 6 related to the image of jeans and an erect penis sent on 23 April. Charge 2 was incitement to use a carriage service to transmit child pornography.
In a defence response[5] filed in June 2012, the applicant denied all the offending. One day before a trial due to commence on 15 August 2012, the Crown accepted the applicant’s plea to the five charges of using a carriage service to cause offence and agreed not to pursue the charge of incitement to transmit child pornography. On 15 August 2012, an amended indictment was filed containing one rolled-up charge of using a carriage service to cause offence. The applicant was arraigned and pleaded guilty to that charge.
[5]This document has not been provided to the Court of Appeal.
It is unnecessary to summarise the parties’ respective positions on the plea save to note that the Crown proposed a sentence range of a head sentence of three to six months’ imprisonment, and accepted that it was open to wholly suspend the sentence or order the applicant serve up to two months thereof before being eligible for a recognizance release order. Defence counsel, whilst initially submitting that a fine was appropriate, ultimately conceded that a sentence of imprisonment was appropriate. He submitted, however, that having regard to all relevant mitigating matters, the sentence should be wholly suspended.
The judge accepted that the applicant had a good family background and ongoing family support, had never been in trouble previously or since his arrest, and had achieved well academically and been a well respected teacher before ultimately securing an administrative job at a university. He found that the applicant had a positive relationship with a lady between 2000 and 2007, involving joint travel, purchase of a home, and normal sexual intimacy, but that the relationship ultimately broke down, and the applicant was forced to sell the house. The applicant returned to live with his parents and became depressed, unhappy and socially isolated. It was at this low point in his life that he committed the offences. The judge referred to the applicant’s loss of his job in student administration, his consequential loss of self-esteem and the fact that at least in the short term he would not be considered suitable to work with children.[6]
[6]DPP v Rodriguez [2012] VCC 1216, [16].
The applicant had been attending counselling since mid-2011. The sentencing judge accepted that personality testing was not indicative of major psychological or emotional disturbance. His Honour referred to the psychologist’s view that the applicant was remorseful and ashamed, and would not pose a danger to anyone in the community, children in particular.[7]
[7]Ibid [15].
The sentencing judge also recognised that the prosecution should have settled the matter when the offer to plead guilty was first made. If that had occurred there would likely have been a summary hearing which, if agreed to by the court, would have resolved the matter much sooner than had been the case. Account was taken of the significant delay, and his rehabilitation in the meantime. His Honour accepted that the applicant had responded well to therapeutic intervention, had much more stability in his life and had good prospects for rehabilitation. He accepted that as a consequence of his plea of guilty he was entitled to a discount for both its utilitarian benefit and because it reflected genuine remorse.
The judge made the following significant additional observations under the heading ‘other sentencing considerations’:
There are, of course, other important sentencing considerations. It is significant that you were not actually communicating with a real child who may have been confused, disturbed and corrupted by your behaviour. However, that does not mean an actual term of imprisonment should be excluded. I am conscious you do not face the more serious charges of grooming or procuring a child via the internet, for which there are significantly greater maximum terms of imprisonment. You did not try to make arrangements to meet with the ‘girl’ and I do not sentence you on the basis that you ever intended to meet with her. It is also relevant that in the course of the police undercover activity – which is both lawful and widely used and for which there could be no criticism – the response to you sending the first penis photo was one of significant enthusiasm with a request for further such images. However, although you were in fact communicating with police, you were not an ‘unwary innocent’ and did not do anything which you would not otherwise have done. It is clear you wanted the ‘girl’ to send you a sexually explicit image of herself and you persisted with that request over a substantial time. Had you been communicating with a real child and not a police officer, you may have achieved that aim.
Whilst the particular offence is not one specifically directed to children, it is significant that you were dealing with a person whom you believed to be a child. When it must have become clear to you that the ‘girl’ was no longer interested in the correspondence, you persisted in twice sending the disgusting and disturbing defecation image and then, some months later, sought to re-establish contact with her by sending the second penis photo.
Offences of this kind are pernicious and difficult to detect and the principle of general deterrence looms large because it is necessary to protect children, often from themselves, in their use of the internet.
The prosecution submitted that the only appropriate sentence was one of imprisonment with a range of three to six months, indicating it was open to the Court to either wholly or partially suspend the sentence by way of a recognisance release order. Your counsel ultimately submitted that in all the circumstances it was appropriate to impose a term of imprisonment but that it ought to be wholly suspended.
I have taken account of the various relevant matters set out in s 16A of the Commonwealth Crimes Act 1914 (Cth) and the particular sections referred to in the prosecution submission. It is unnecessary for me to refer to them now. I am satisfied that in all the circumstances no sentence other than one involving imprisonment is appropriate. The essential question is whether that sentence should be wholly or partially suspended. I have considered a number of the cases referred to by the parties. It would seem that periods of actual imprisonment were certainly imposed where there were offences of grooming or procuring children on the internet. The Queensland cases of R v Hays to which I was referred and R v Campbell involved somewhat similar conduct as here, where actual terms of imprisonment were upheld on appeal. I note there was a higher maximum of 5 years applicable in those cases. As your counsel correctly noted, comparatively, the maximum of three years is a low one.
But in the end, each case must turn on its own facts and circumstances. After anxious consideration, I have concluded that the sentence of imprisonment should not be wholly suspended. Given the nature, persistence and length of offending, I consider yours a serious example of the offence. It was calculated conduct, you knew exactly what you were doing, and you repeatedly engaged in sexually explicit communication and sent images which, in context, were clearly offensive by community standards. Others who commit this type of offence should know that they may well face a term of immediate imprisonment for acting in a similar way.
On behalf of the community, I strongly denounce your offending.[8]
[8]Ibid [20]-[26] (citations omitted).
Ground 1
It was these additional considerations in the sentencing remarks that explained ground 1 and no doubt led to the formulation of the applicant’s written case in support of that ground. Although the applicant abandoned ground 1 at the outset of oral argument, in the course of developing particulars of manifest excess under ground 2 he sought to rely upon an argument that had been raised in the written case supporting ground 1. As this submission asserted a specific error counsel revived ground 1.
In his written case counsel who had appeared for the applicant on the plea advanced the following arguments under ground 1. First, it was said that the judge erred in finding that the applicant believed he was communicating with a girl under the age of 16. There was ample evidence from which such an inference could be drawn. Counsel on the plea conceded as much during the argument on the plea. That submission has no substance and was rightly not pursued on appeal.
Second, it was submitted that even if such a finding was open it was irrelevant to the charge laid. It was contended that to take account of the age of the intended recipient of the communications was to elevate the charge to the more serious offence of using a carriage service to transmit indecent communications to a person who the sender believes is under 16 years of age contrary to s 424.27A(1) of the Criminal Code (Cth) which has as a maximum penalty seven years’ imprisonment. For that offence there are provisions which facilitate proof that the sender believed the recipient to be under that age.[9]
[9]Section 474.28(3) of the Code.
This submission was also without merit and was rightly not pursued on appeal. The evidence of the applicant’s belief was not irrelevant to the charge on the indictment. Although the age of the girl was not an element of the offence, the Crown opening made clear that the prosecution relied on the applicant’s belief that the girl was 14 as part of the circumstances which made the conduct ‘offensive.’ On appeal the applicant’s counsel rightly conceded that the judge was entitled to regard the fact that the applicant believed the girl was under 16 as relevant to whether reasonable people would regard the communication as offensive within the meaning of s 474.17. It was accepted that it also bore upon the overall gravity of the offending for the purpose of fixing an appropriate sentence.
Third, it was submitted that the finding that the applicant believed that the person he was communicating with on the internet was a teenager under 16, together with the ‘other sentencing considerations’ in the sentencing remarks in the passage we have referred to, elevated the applicant’s conduct to the more serious offence of using a carriage service to transmit an indecent communication contrary to s 474.27A. It was this aspect of Ground 1 that counsel relied upon on the appeal. In oral argument he referred to the decisions in The Queen v De Simoni[10] and R v Newman,[11] contending that the judge had infringed the principle that a sentencing judge cannot take into account circumstances of aggravation where such circumstances would support a conviction for a more serious offence.
[10](1981) 147 CLR 383 (‘De Simoni’).
[11][1997] 1 VR 146 (‘Newman’).
The applicant contended on appeal that notwithstanding the judge’s statement in an early passage of his sentencing remarks that the applicant was not to be sentenced for the more serious charges of grooming or procuring a child via the internet or as if he had intended to meet the ‘girl’, the sentencing remarks, when viewed in their entirety, indicate that his Honour did sentence him on that basis.
The applicant drew attention to the emphasis which the judge placed upon the applicant’s purpose in communicating the sexually explicit material. In the applicant’s submission, this revealed that the applicant had in fact been punished for the more serious offence contrary to s 474.27A.
It is not clear why the applicant in his written case selected and confined himself to s 474.27A. This section was only introduced on 15 April 2010 by the CrimesLegislation Amendment (Sexual Offences Against Children) Act 2010 together with a number of other new offences. As the respondent points out, only the applicant’s final email of 23 April 2010 might have constituted an offence under s 474.27A. But there were at the time these offences were committed other offences under the Code such as ss 474.26 and 474.27 which were concerned with using a carriage service to procure or groom persons under 16 years of age. These offences focus upon the age of the victim and the purpose or intent of the sender.
The Crown chose to indict the applicant under the rolled up charge on the basis that the communications were offensive. That offence requires that the communications viewed objectively are offensive but does not require a specific intent. The question is whether the judge contravened the principle in De Simoni and Newman in treating the applicant’s purpose in communicating with the ‘girl’ as an aggravating circumstance when there were more serious charges that involved using the internet for the purpose of grooming or procuring a child for sexual purposes.
The judge made the following observations in his sentencing remarks that related to the applicant’s purpose in communicating with the ‘girl’. First, his Honour adverted to matters forming part of the agreed prosecution opening concerning the applicant’s Facebook profile and the content of certain emails which preceded the period covered by the charge on the indictment. They showed that the applicant was attracted to the ‘girl’ and was inquiring as to whether she was interested in a sexual relationship with an older guy. The first email the subject of the charge contained a sexually explicit inquiry. His Honour then referred to the ongoing requests of the applicant for a ‘special’ picture of the ‘girl’ these not being matters covered by the charge. He then referred to the applicant’s repeated request that she send him a sexually explicit picture of herself, again matters not covered by the charge. Next his Honour accepted the prosecution submission that at the time of the last email the subject of the charge, the applicant wanted to initiate further communication with the girl. Then his Honour found that the applicant wanted the ‘girl’ to send sexually explicit images of herself and that the applicant persisted with that request over time. His Honour then repeated that the applicant sought to re-establish contact with the ‘girl’. Each of these matters was irrelevant to the charge and at best placed the offending images the subject of the charge in context. It was submitted that his Honour’s reference to these matters focussed upon the applicant’s purpose in communicating with the ‘girl’.
Then in his ‘other sentencing considerations’ his Honour referred to R v Hays,[12] R v Campbell,[13] and R v Gajjar,[14] cases the prosecutor had relied upon for the proposition that general deterrence was an important factor in this type of offending. It was said to be significant that his Honour drew a comparison with those cases. They were concerned with the use of the internet to procure or expose a person under the age of 16 years to indecent matter. His Honour noted that these cases involved offences which had higher penalties than the present case. Despite this and his earlier observations to the contrary, these sentencing remarks strongly suggest that the decision to order immediate imprisonment was informed by the cases to which the prosecution referred. They were concerned with more serious offences involving grooming for sexual purposes. Yet his Honour described these cases as ‘similar conduct’ - presumably to that of the applicant – noting that actual imprisonment was imposed where the offences involved grooming or procuring on the internet. They had little relevance to the less serious charge before the court and were calculated to and did, it appears to us, lead his Honour into error.
[12](2006) 160 A Crim R 45.
[13][2004] QCA 342.
[14][2008] VSCA 268. The judge cited (at [20]) Gajjar for the proposition that actual imprisonment should not be excluded even though there was no communication with a real child.
It must be said that the learned sentencing judge was faced with a delicate sentencing task. Ordinarily the sentencing judge must take into account all of the circumstances including circumstances of aggravation relevant to the commission of the offence. But that obligation had to give way to the fundamental principle that the offender should not be punished for circumstances of aggravation which would warrant conviction for one of the more serious offences.[15] Consideration of the communication with the ‘girl’ featured prominently in the reasons for sentence, particularly in a section of the reasons described by his Honour as ‘other important sentencing considerations’.
[15]R v De Simoni (1981) 147 CLR 383, 389 (Gibbs CJ).
Undoubtedly the applicant’s purpose, if taken into account, would affect the relative seriousness of this particular instance of the offence, but the application of the principle in De Simoni required the sentencing judge to take a restricted view of the facts.[16] As Winneke P observed in R vNewman, it is always a matter of degree which depends on the particular facts of each case where the circumstances surrounding the commission of an offence end and punishment for an offence not charged begins.[17] That said, the gravamen of the present charge was using a carriage service in a way that was objectively offensive. The actus reus of this and the more serious offences was the same but the more serious offences had an additional element, namely a specific intent of seeking to groom or procure the ‘girl.’ That was a distinctive element of the more serious offences.[18] The charged offence involved no such purpose or intent. The purpose of the applicant in communicating with the girl had to be disregarded.
[16] [1997] 1 VR 146, 151 (Winneke P, with whom Hayne JA and Crockett AJA agreed).
[17]Ibid.
[18]R v Teremoana (1990) 54 SASR 30, endorsed by the Victorian Court of Criminal Appeal in R v Medcraft, (1992) 60 A Crim R 181, 185-6.
As we have noted, the applicant was charged with many offences and eventually an indictment was filed containing only the one rolled up count. It was for the Crown to determine what charges were before the court. But if it wished the court to have the flexibility of taking into account the aggravating circumstance of the applicant’s purpose, which amounted to a more serious offence, then it should have shaped the indictment accordingly.
Notwithstanding the caution with which his Honour approached the task, we are left with the strong impression that the purpose of the applicant in communicating with the intended recipient assumed particular importance in his Honour’s sentencing synthesis. Accordingly Ground 1 is made out.
Ground 2 (manifest excess)
The four particulars of manifest excess identified by the applicant were as follows:
(a) The judge failed to give proper weight to the plea of guilty
The Crown opening conceded that the applicant offered to plead guilty ‘on similar terms at an early opportunity’. His Honour referred to the fact that the applicant had offered to plead guilty to the offences the subject of the present rolled up charge at an early stage, which may have resulted in a summary hearing. He allowed that there should be a significant discount for the utilitarian benefit of the plea and that the applicant has genuine remorse. However the judge found it curious that when the prosecution rejected his offer he conducted a contested committal and denied the offending until the time of trial.
It is evident from the sentencing remarks that his Honour regarded the utilitarian benefit of the plea as one commencing from the time of his plea. The applicant submitted that the judge did not therefore take account of the further time, costs and inconvenience that would have been saved if the Crown had accepted his initial offer to plead guilty over a year earlier in June 2011. Further it was unclear whether his Honour qualified the extent of the applicant’s remorse or gave him the full discount that was to be allowed for the applicant’s willingness to plead guilty to this offence from an early stage.
Consistently with the principles discussed in Phillips v Queen[19] and as the further observations in Carr v The Queen[20] make clear, if the offender offers to plead guilty at an early stage to the charges upon which the prosecution ultimately proceeds, he may be entitled to have the discount for the plea assessed as at the time of his offer and without qualification for the fact that the Crown did not accept the offer until much later. Neither should the utilitarian benefit be reduced because other charges were contested on which he was not convicted. Here the applicant disputed the more serious charges which the prosecution did not ultimately pursue.
[19][2012] VSCA 140, [63]-[66].
[20][2012] VSCA 299, [70]-[72].
This particular is made out.
(b) The judge failed to give proper weight to the delay[21]
[21]I note that in the written case, particular (b) concerns prior good character while particular (c) concerns delay. In the notice of appeal, these particulars appear in the reverse order. I have followed the order in the notice of appeal, as that seems to be the more logical way of setting it out.
Delay is normally relevant in two ways. Firstly, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[22]
[22] R v Merrett (2007) 14 VR 392, 400-1 [36]-[39]. See also Bourne v The Queen [2011] VSCA 159, [30]-[32].
A sentencing judge need not make separate reference to each of the limbs of delay when stating that delay has been treated as a mitigating factor. However, where the judge refers specifically to one limb and does not refer to the other, the circumstances of the particular case may give rise to a question as to whether the limb not mentioned has received any weight in the sentencing synthesis.
The sentencing judge did recognise that the Crown’s refusal to accept the earlier plea had caused delay. His Honour was mindful of the inconvenience thereby occasioned which was associated with good prospects for rehabilitation. His Honour referred to the applicant’s favourable response to therapeutic intervention, and his stable life. No reference was however made to the second limb of unfairness.
Counsel on the plea had submitted that the applicant had the matter hanging over him for a lengthy period and that his life savings had been depleted. On appeal, the applicant submitted that as his Honour said nothing in the sentencing remarks about the additional hardship to, and costs incurred by, the applicant as a result of the proceeding being extended for a further 14 months, the aspect of unfairness as a mitigating factor arising from delay had not been taken into account. That, it was said, was consistent with an observation his Honour had made during the plea, to the effect that the delay after the offer to plead was rejected was irrelevant, because the applicant subsequently contested the committal and denied all the offending.
In the present case, the relevant delay was in the order of two years. There was a one-year period between the time the police first seized the applicant’s computer (June 2010) and the time that the applicant first offered to plead guilty (June 2011), followed by a period of 14 months between the rejected offer and the date of sentence (August 2012). In large part due to the Crown’s refusal to accept his plea offer, the applicant fell to be sentenced some two years and two months after the initial search of his home.
We consider that it is significant that the learned judge referred only to the first limb associated with the applicant’s rehabilitation. Despite the way the ground is framed, the complaint is not a mere particular of manifest excess. Rather, it is better understood as disclosing specific error arising from a failure to give any weight to a relevant factor.
(c)The judge failed to give proper weight to prior good character and lack of offending since arrest
The judge said (at [17]) that it was significant that the applicant was a mature offender who had never been in trouble previously nor since his arrest. There is no basis for saying that the judge undervalued this matter.
(d)The judge imposed a sentence that was outside the range given by the prosecution in relation to the minimum period to be served
The Crown, as we have said, submitted on the plea that the sentence range was between three to six months’ imprisonment with the sentence wholly suspended or up to two months to serve before recognisance release. The judge was entitled to reject the submission by the Crown as to range. We doubt its utility as a particular of manifest excess.
Ultimately ground 2 is made out.
Conclusion
Section 474.17 is found in Part 10.6 of the Code ― entitled ‘telecommunication services’ ― which came into effect on 1 March 2005.[23] The essence of the offence is that a person uses a carriage service[24] in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
[23]Introduced by Act No. 127 of 2004.
[24]Defined as ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’ as per s 7 of the Telecommunications Act 1997 (Cth).
The plea was conducted on the basis that there was no superior court authority expressly dealing with the approach to sentencing under s 474.17 of the Code. We have not found any such authority. The Commonwealth Director has confirmed that they do not have any table of higher court sentences for this offence. Nor is there any Sentencing Snapshot published for this offence.
The respondent referred the sentencing judge to three County Court decisions on s 474.17. We have set out those cases in the Annexure to our reasons together with other cases not cited on the plea. Many of the cases in the Annexure are for more serious offences or offending conduct. From them it is difficult to distil any sentencing practice, although it is plain enough that sentences at least as severe as that presently under consideration have been upheld on appeal. If the applicant’s earlier plea offer had been accepted, he would probably have been dealt with in the Magistrates’ Court. It is unclear what sort of sentences are usually imposed for this offence in the Magistrates’ Court, where the bulk of such offenders are apparently dealt with.
As we have said, there were discrete errors made by the learned sentencing judge which require the sentencing discretion to be re-opened. We are of the view that a different sentence should be imposed. The applicant’s purpose in sending the communications should have been disregarded. The full utilitarian benefit of the early offer to plead guilty and the unfairness arising from delay and its effect on specific deterrence were matters of importance which were either not taken into account, or received insufficient weight in the sentencing synthesis.
Giving proper weight to these factors, and the strong constellation of other mitigating factors, we are also of the view that the sentence was manifestly excessive. All of the purposes of sentencing could be achieved through the imposition of a sentence of the same magnitude but with immediate release under a recognisance release order. We take into account that the applicant has already served two weeks of imprisonment and has been on bail pending the outcome of this appeal.
Despite the distasteful and persistent nature of the communications, and the need for general deterrence, the particular circumstances of the applicant made an immediate term of imprisonment manifestly excessive. That conclusion is consonant with the respondent’s submission that a wholly suspended sentence was within the range available – a submission which the respondent repeated on the appeal.
We will grant leave to appeal, allow the appeal and re-sentence the applicant to six months’ imprisonment. The applicant will not be required to serve any further immediate period of imprisonment. We will order a Recognisance Release in the sum of $2500 on condition that the applicant be of good behaviour for a period of two years.
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ANNEXURE
Summary of cases on s 474.17 of the Code
County Court decisions cited on the plea
DPP (Vic) v Johanson [2012] VCC 708 (Judge Maidment) – the offender (who had no priors) pleaded guilty to a grooming charge (max 15 years), a procuring charge (max 12 years) and a charge of causing offence which involved offensive communications over a period of 7 days. He was sentenced to a total effective sentence of two years, to be released on a recognizance release order after serving six months. The individual sentence on the charge of causing offence was four months.
R v Stephens [2009] VCC 696 (Judge Chettle) – the offender pleaded guilty and was fined $5000 for a single charge of causing offence. Over a one week period, the offender sent several chat messages to a 14 year old boy discussing masturbation, anal sex and other related themes. He had no priors and made full admissions to the police.
R v Dimech (Unreported, County Court of Victoria, Judge Jenkins, 29 April 2010) – the offender pleaded guilty to a grooming offence (max 12 years) and three charges of causing offence. The charges of causing offence involved sending images of himself masturbating, to a person he believed to be a 15 year old girl, over a 3 day period. He had relevant priors, subsequent offending, and poor insight and remorse. He was sentenced to a total effective sentence of three years and three months, to be released on a recognizance release order after serving six months. The individual sentence on each charge of causing offence was six months.
Other decisions on s 474.17
These cases were not referred to on the plea.
Carroll v The Queen [2011] VSCA 150 (Maxwell P and Buchanan JA) – sentences of two years and 18 months upheld. This case involved a series of offences including aggravated burglaries, theft, stalking, and 5 offences against s 474.17 of the Code, which involved harassment over the telephone. Appeal against TES of 12 years with NPP of 10 years dismissed. While not specifically commenting on the s 474.17 offences, the Court held that the individual sentences of 18 months (on each of four counts) and two years (on the other count) were not manifestly excessive, the offender having a prior conviction for such an offence.
Minehan v The Queen (2010) 201 A Crim R 243 (RA Hulme JA with whom Macfarlan JA and Johnson J agreed) – sentence of nine months upheld. This case concerned a series of child pornography and other offences including carriage service offences, committed by a former police officer of previous good character. The appeal was allowed and the appellant resentenced to a TES of five years and two months with a NPP of three years and three months, however the sentences on the carriage service offences were upheld.
Agostino v Cleaves [2010] ACTSC 19 (Refshauge J) – sentence of six months upheld. The appellant was angry with the victim who had started dating a woman the appellant had previously been seeing. The appellant sent a message over the internet threatening to kill the victim. He also posted a photo of himself holding a pistol. Weeks later, the appellant reiterated the threat during online chat to the victim’s brother’s girlfriend, who alerted the victim to the threat. The appellant was sentenced in the ACT Magistrates’ Court to six months’ imprisonment for using the internet to menace. The jurisdictional limit was 12 months. Dismissing the appeal, Refshauge J held (at [84]) that while the sentence was ‘a severe one and at the upper end of an acceptable range, it was not beyond it’.
Refshauge J also referred to several other cases including:
Smith v Elliott [2007] ACTSC 65 – TES of 10 months with NPP of five months upheld. The appellant had committed twelve offences where he telephoned a woman under the pretext of conducting a survey but then the call developed into personal and sexually intimate questioning. He was sentenced in the Magistrates’ Court. Importantly, the appellant had previously been convicted of similar offences to which he had been sentenced to six months’ imprisonment to be served by way of periodic detention.
Birnie v Police [2006] SASC 263 – sentence of 12 months upheld. The appellant made 42 calls to each of two elderly women, causing severe mental distress. The appellant had a disrupted family life, personality issues and had been in prison before. The appeal against a sentence of 12 months (with conditional release after six months upon entering recognizance to be of good behaviour for two years) was dismissed.
Crowther v Sala [2007] QCA 133 – Conviction appeal only – plea of not guilty to single charge of using telephone to threaten to shoot public servants, in context of long-running dispute over pollution affecting appellant’s house. Magistrate discharged appellant on recognizance release order of $1000 on good behaviour for 12 months.
Cases on predecessor offence under s 85ZE of the Crimes Act 1914 (Cth) (with lower 12-month maximum)
Maier v Police [2004] SASC 367 (White J) – the appellant made 26 calls to nine separate women. He sometimes said nothing, sometimes asked the colour of their underwear, and sometimes told them he had their underwear or wanted it. He had a history of making offensive calls and had earlier convictions when fines or bonds were imposed. He also had mental health issues. A magistrate sentenced him to a TES of 18 months. The Supreme Court reduced the sentence to 18 weeks (with immediate release, the offender having served 6 weeks, the remainder of the sentence to be suspended).
Weinert v Commonwealth Director of Public Prosecutions [1999] SASC 34 (Nyland J) – sentence of six months fully suspended with ongoing supervision was upheld. The appellant had made six random telephone calls to a number he had chosen at random. He either breathed heavily or hung up without saying anything. On one occasion he made an offensive remark. The recipient of the calls was a 15 year old girl, home from school because she was ill. She was frightened as a result of the calls. The appellant was of prior good character.
Rae v The Queen (1998) 45 NSWLR 546 – this was a relating to a bomb threat, so the appropriateness of the sentence was not considered by the Court. The offender had been sentenced to six months by a magistrate.
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