Sean Kerry Tuting v The Queen

[2018] VSCA 250

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0127

SEAN KERRY TUTING	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGE:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	1 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 250
JUDGMENT APPEALED FROM:	[2018] VCC 688 (Judge Pullen)

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CRIMINAL LAW – Application for leave to appeal against sentence – One charge of grooming for sexual conduct a child under 16 years – Hundreds of explicit messages and images – Arrangement to meet for sex –  Attended arranged meeting to carry out his intention with condoms – Believed victim was 14 – Plea of guilty – Sentenced to a total effective sentence of three years’ imprisonment with a non-parole period of 15 months – Manifest excess – Seriousness of grooming offences – Not reasonably arguable that so far outside the range of a reasonable discretionary judgment as to itself bespeak error – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

TATE JA:

1. This is an application for leave to appeal against sentence by Sean Tuting (‘Tuting’).[1] Tuting pleaded guilty to one charge of grooming for sexual conduct with a child under the age of 16 years contrary to s 49B of the Crimes Act 1958.[2]

   [1]DPP v Tuting [2018] VCC 688 (‘Reasons’).

   [2]The offence of grooming for sexual conduct with child under the age of 16 years is now s 49M of the Crimes Act.

1. Between 9 and 13 December 2015, Tuting used a website, MyLOL, which was created to provide a social network for teenagers and can be downloaded as an application on a mobile phone.  He used MyLOL to initiate contact with a 13 year old girl, Amy.[3]  Tuting was then aged 36, homeless and living under a bridge.  He also used an instant messaging app, Kik, on his mobile phone to exchange with Amy numerous sexually suggestive and explicit messages.  He sent Amy a photo of his erect penis.

   [3]The judge below adopted the pseudonym ‘Amy Charles’ for the victim in order to protect her identity.

1. Some of the text messages included the following:

10 December 2015

9:49 am         Have you done much with a guy before? Lol

Lol…ok well its not hard to learn

lol I’ll convert you to the dark side..haha

11:35 am I just can’t believe no guy has snapped you up cos your pretty hope I can lol x

Well looks like I’ll have to teach you a few things Monday night he he x

13 December 2015

11:13 am I understand parents in the car so I can turn you on so you blush…pull your panties off and lick you out…lol…I’ll talk when you’re home beautiful xxx

11:17 am If I was in the back seat I would have my hand down your pants teasing you xxxxx

1. Almost immediately on contacting Amy, Tuting asked her if she could sneak out of her house to meet him.  

1. He arranged to meet Amy at the Heaney Park Primary School oval on the evening of Monday 14 December 2015 to have sexual intercourse.  The meeting date was subsequently changed to Sunday 13 December 2015.  Tuting arrived with a backpack containing sleeping bags and condoms.  The meeting did not occur because Amy’s mother had discovered the messages on Amy’s phone and went to the police.  Tuting was arrested near the oval and admitted in a record of interview that he was at the oval to have sex with an underage girl and that he believed she was 14, but he denied having been previously sexually involved with underage girls and described his conduct as ‘stupid’. 

1. The Summary of Prosecution Opening included the followed report of the record of interview:

A recorded interview was conducted with Mr Tuting at the Knox [Sexual Offences and Child Abuse Investigation Team] office on 13th December 2015. Mr Tuting made full admissions as follows:

i. ‘I was coming here to have sexual relations with an underage girl’. (Q & A 25)

ii. Based on the victim’s profile picture, he believed she was 14. (Q & A 83)

iii. He could not recall why he chose to start messaging [Amy] in particular (Q & A 71–4). He denied having previously been sexually involved with ‘underage girls’.  Later on in the interview he said he found [Amy] attractive. (Q & A 360, 406)

iv. He probably sent a few hundred messages of a sexual nature to [Amy] (Q & A 93–101)

v. He described his conduct as ‘stupid … but like it’s so easy to get caught up in it’. (Q & A 380–1)

1. Tuting was sentenced by Judge Pullen in the County Court on 8 May 2018 as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Grooming for sexual conduct	10 years	3 years	N/A
Total Effective Sentence		3 years’ imprisonment
Non-Parole Period		15 months
Pre-Sentence Detention		152 days
Ancillary Orders		Sex offender registration for 8 years pursuant to Sex Offenders Registration Act 2004. Forensic sample order made.
S 6AAA statement		Total effective sentence 5 years Non-parole period 3 years

1. Tuting now seeks leave to appeal against his sentence on the single ground of manifest excess as follows:

Ground 1:       

The total effective sentence and non-parole period fixed are each manifestly excessive.

Particulars:

(a)The sentence imposed is more severe than necessary to achieve the purposes for which the sentence was imposed.

(b)The learned sentencing judge gave manifestly insufficient weight to the rehabilitation of the applicant.

(c)The learned sentencing judge gave manifestly insufficient weight to the applicant’s early plea of guilty, lack of prior convictions, and prior good character.

(d)The sentence imposed is not consistent with current sentencing practices.

1. There is no specific challenge to any of the findings of the judge and there is no allegation of specific error.

1. On the issue of parsimony, Tuting submits that a less severe sentence would achieve the aims of punishment, deterrence and denunciation.  During the plea, his counsel urged the judge to impose a Community Correction Order (‘CCO’), or a combined short sentence of imprisonment with a CCO.  The judge decided against that course.  She was clearly troubled by Tuting’s persistence in exchanging messages with Amy, even when it was clear that Amy was underage, and by the arrangement he made with her to meet in order to engage in sexual relations.  Her Honour was also troubled by Tuting’s subsequent attendance at the oval to carry out his intentions.  In addressing Tuting, the judge said:

I ... note the opportunities you had to desist from your offending which could have commenced with the cessation of messages once aware of the complainant’s age. Unfortunately you did not desist.  That you attended the oval as arranged increases the objective seriousness of your offending relevant to this grooming charge.[4]  

[4]Reasons [60].

1. The judge was also concerned that while a detailed risk assessment by forensic psychologist, Dr Dion Gee, suggested that Tuting did not meet the clinical diagnosis of Paedophilic Disorder (DSM-5) and that he has a ‘low risk’ of re-offending, Dr Gee’s conclusion about risk was dependent on Tuting being motivated to address his issues.  The judge regarded Tuting’s prospects of rehabilitation with ‘guarded optimism’,[5] but noted that even though he accepted the need for intervention and professional support, he ‘presented with only a partial appreciation of [his] risk profile and potential for future aberrant behaviour’.[6]  The judge said:

In the opinion of Dr Gee you demonstrated only partial insight into your mental health needs.  You struggled to articulate links between self-regulation and aberrant behaviour.  Further you had only a partial understanding of your risk profile and potential future risks.  And all of this is relevant when assessing your rehabilitation prospects, of which I have some concerns.[7]

[5]Ibid [88].

[6]Ibid [61].

[7]Ibid [70].

1. The judge also took into account the significant adverse impact that Tuting’s offending had on Amy and her family.  The judge acknowledged that she must not allow the effects upon the victim ‘to swamp the sentencing process’,[8] but she noted the mutual loss of trust between Amy and her mother, the damaging impact on Amy’s self-confidence and her interactions with her siblings and friends, and the upset and self-blame experienced by Amy’s mother.  

   [8]Ibid [87].

1. The judge also noted the submissions made on behalf of the Crown that, in considering whether to impose a CCO or a combined sentence, regard should be had to Tuting’s ‘flagrant disregard for court orders in the past’.[9]  Tuting had been granted bail on 17 December 2015, but then breached his bail conditions and had his bail revoked on 17 May 2016.  He failed to appear at court on 3 June 2016 and was arrested pursuant to a warrant on 13 December 2017.  The judge noted that the delay between the offending and the date of the sentence was the result of Tuting’s own actions:

As at the date of your plea hearing, up to and including 1 May 2018, you had spent 144 days in custody by way of pre-sentence detention.  Specifically you were arrested on 13 December 2015, granted bail on 17 December 2015, rearrested 13 December 2017 and in custody up until your plea hearing and at sentence.[10]

[9]Ibid [94].

[10]Ibid [22].

1. The judge concluded that the only appropriate disposition was to impose a head sentence of imprisonment with a non-parole period so as to reflect the need for general and specific deterrence, as well as protecting the community and manifesting the community’s denunciation of Tuting’s conduct. 

1. It is well accepted that the ground of manifest excess is a very difficult ground on which to succeed. It will only succeed if the appellate court considers that the sentence is ‘unreasonable or plainly unjust’.[11]   

   [11]R v Pham (2015) 256 CLR 550, 568 [56] (Bell and Gageler JJ) (‘Pham’).  

1. Redlich and Priest JJA explained in McPhee v The Queen[12] that there are considerable problems in making out the ground:

Every single human situation is unique, and the sentencing judge’s instinctive synthesis involve[s] a distillation of numerous individual factors into an appropriate head sentence and non-parole period.  It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula.  Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences … In order for an argument of manifest excess to be successful, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakable.  It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.[13]

[12][2014] VSCA 156.

[13]Ibid [8] (emphasis added) citing Hanks v The Queen [2011] VSCA 7 [22] (Bongiorno JA, Redlich JA agreeing). See also Clarkson v The Queen (2011) 32 VR 361, 384 [89].

1. It is clear that the stringent threshold to establish manifest excess is not easily met.

1. Although I consider that the sentence imposed was stern, and at the very high end of the available range (as the Crown concedes), in my view it is not reasonably arguable that it reflects an excess that is obvious, plain, or unmistakable.  I do not consider that it is reasonably arguable that the sentence is so far outside the range of a reasonable discretionary judgment as to itself bespeak error, given:

·    The disparity in age and life experiences of Tuting and Amy;

·    The large volume of sexually explicit/suggestive messages sent by Tuting (including the photo of Tuting’s erect penis);

·    The duration of the messaging over a period of five days;

·    Tuting’s request for Amy to meet him for sexual relations;

·    Tuting was not afflicted with any impairment (physical, mental or substance-induced);

·    The impact upon Amy and her family;

·    The importance of general deterrence in this context. 

1. The judge correctly regarded this offending as serious.  It was Tuting who initiated contact with Amy by using a social networking site, and who almost immediately starting asking her if she could sneak out of her house to meet him.  The offending occurred on multiple occasions and over a number of days.  Tuting’s admission that his intention was to engage in sex with Amy, and the fact that he went to the oval in furtherance of that intention, makes this a particularly grave example of the offence. 

1. In her assessment of Tuting’s rehabilitation, the judge carefully considered the assessment by Dr Gee as well as Tuting’s background and circumstances as a first time offender, and was mindful of the need to sentence in a manner that would  maximise his prospects of rehabilitation.[14]  The judge’s concerns about Tuting’s prospects of rehabilitation (‘guarded optimism’) were clearly based upon his having demonstrated only partial insight into his mental health needs and risk profile.  

   [14]Reasons [89].

1. Tuting submits that the sentence is not consistent with current sentencing practice.  He acknowledges that this is only one of the sentencing considerations for a judge to take into account, but he points to four decisions in which lesser sentences were imposed for the same offence, or the Commonwealth equivalent:  Waldon v The Queen,[15] Meadows v The Queen,[16] Director of Public Prosecutions v Van Daalen,[17] and Director of Public Prosecutions (Cth) v Singh.[18]    

   [15][2016] VSCA 260 (‘Waldon’).

   [16][2017] VSCA 290 (‘Meadows’).

   [17][2017] VCC 117 (‘Van Daalen’).

   [18][2017] VSCA 146 (‘Singh’).

1. In Waldon the offender was sentenced on a grooming change to eight months’ imprisonment (in the context of multiple difference offences).  However, the judge here distinguished this case on the ground that no meeting was arranged by the offender for sexual relations with his victim.  Nor, obviously enough, did the offender attend an arranged meeting place intending to engage in sexual intercourse with the underage victim.

1. In Meadows the offender was sentenced to 12 months’ imprisonment.  However, there was no victim in that case because the apparent 12 year old girl was a covert police officer.  Moreover, the offending was limited to online conversations and the offender did not intend to meet his victim.[19]  He suffered from epilepsy, as the result of a mild brain injury, and a mild intellectual disability.  He was caring for his ill mother.

   [19]Meadows [2017] VSCA 290 [11].

1. In Van Daalen the offender was sentenced to a CCO.  As the judge here noted, there was only two episodes of online sexual communications between the offender and his victim, the offender desisting voluntarily after the second occasion.  There was also geographical distance between Van Daalen and his victim and no concrete or practical arrangements made to meet.  There was in fact no victim as the apparent 12 year old girl was covert police officer.  Van Daalen was himself youthful, aged 23 at the time of the offending.

1. In Singh the offender was sentenced to a three year CCO with a $2,000 fine on one charge of using a carriage service to procure a person under 16 years of age to engage in sexual activity, contrary to s 474.26(1) of the Criminal Code (Cth). The Court of Appeal dismissed an appeal by the Commonwealth Director of Public Prosecutions on the ground of manifest inadequacy although it stated that the sentence imposed was ‘remarkably lenient’[20] and that had it been exercising the sentencing discretion, it would have imposed an immediate term of imprisonment.  There was an exchange of messages and a meeting was arranged.  There was no victim because the teenage girl was in fact a covert police officer.  The Court of Appeal emphasised the seriousness of grooming offences:

The seriousness of the offence under s 474.26(1) is not to be underestimated. The conduct which it prohibits is insidious and often highly damaging. The offending is calculated to harm children who are vulnerable to abusive, predatory approaches, which are of their nature liable to be kept secret from third parties. The maximum penalty for the offence is very substantial. The authorities are clear that the offence usually merits a term of immediate imprisonment. Lesser sentencing dispositions should be very rare. While there are a number of instances of non-custodial sentences having been upheld after appeal, several of them turned on features peculiar to Crown appeals. None of them should be seen as anything other than exceptional.

The sentencing judge plainly gave the appropriate sentence anxious consideration and so have we. Were we exercising the sentencing discretion ourselves, we would have imposed a term of immediate imprisonment. For our part, the case did not display sufficient mitigating features to take it out of the ordinary kind of offending in this area which demands an immediate term of imprisonment. However, this Court’s role on appeal is not to substitute the sentence it would itself have passed, unless specific error is shown in the sentence imposed or it finds that the sentence was not reasonably open.  With some hesitation we have come to the conclusion that the disposition at which the judge arrived, while remarkably lenient, was not wholly outside the range of sentences available in this instance. The four cases upon which the Director relied all involved offending of a markedly more serious kind than the present case, including predatory conduct and the provision of pornographic material. The sentencing judge opted for a merciful sentence which had regard to the respondent’s immaturity and naïvety, and the fact that he was not searching the internet for children with whom to have sexually explicit communications. Although the judge did not in terms refer to general deterrence, it is plain from his remarks, which quoted cases concerning the primacy of deterrence (both general and specific) that he did not fail to take that matter into account.[21]

[20]Singh [2017] VSCA 146 [65].

[21]Ibid [64]–[65] (citations omitted).

1. The Crown relies on Director of Public Prosecutions v Swingler[22] and Director of Public Prosecutions v Meharry,[23] noting that there are difficulties comparing cases given the differences in the circumstances of both the offending and of the offender. 

   [22][2017] VSCA 305 (‘Swingler’).

   [23][2017] VSCA 387 (‘Meharry’).

1. In Swingler the relevant offending involved three Commonwealth charges of using the internet to groom persons under 16 for sexual activity (charges 1, 3 and 8). There were also multiple State offences.  On each of those charges the offender was re-sentenced, on a Crown appeal, to three years’ imprisonment,[24] with each of those sentences to commence on the expiry of the State non-parole period (resulting in nil cumulation for those offences).  Swingler was aged between 25 and 26 at the time of offending and had no relevant prior criminal convictions.  The Court emphasised the destructive impact of the offences upon the victims, observing that ‘the internet offences have been just as harmful as the offences involving sexual contact’.[25]  It also observed it was ‘increas[ing] the sentences imposed below for the grooming offences which we regard as very serious’.[26] 

   [24][2017] VSCA 305 [90]. In fact the sentence was three years and one hour to ensure that it exceeded three years to render permissible the imposition of a non-parole period under the Commonwealth sentencing regime.

   [25]Ibid [58], the Court referring to ‘Clarkson v The Queen (2011) 32 VR 361, 368–71; R v Gavel (2014) 239 A Crim R 469, [109]; K Choo, ‘Online child grooming: a literature review on the misuse of social networking sites for grooming children for sexual offences’ (2009) 103 Australian Institute of Criminology Reports, Research and Public Policy Series, 34–7’.

   [26][2017] VSCA 305 [60].

1. In Meharry the offender was re-sentenced, on a Crown appeal, relevantly, to two years’ imprisonment for the offence of grooming a child for sexual conduct.  

1. It must be acknowledged that a survey of cases is useful only as a general guide to provide an indication of the appropriate range as part of the instinctive synthesis.  It is necessary for a sentence to be appropriately tailored to the particular circumstances of each case.  I do not consider that it is reasonably arguable that the sentence imposed by her Honour was ‘unreasonable or plainly unjust’.[27]  As Bell and Gageler JJ observed in Pham:

To observe that a sentence is ‘very heavy’ when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencer’s discretion.[28]

[27]Pham (2015) 256 CLR 550, 568 [56].

[28]Ibid.

1. Furthermore, I do not consider that it is reasonably arguable that a non-parole period of 15 months, less than 50 per cent of the head sentence, is manifestly excessive.  Such a period is consistent with the judge bearing in mind an extended transition period should Tuting be granted parole.  

1. In my opinion, leave to appeal against sentence should be refused.

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