Tector v R

[2008] NSWCCA 151

New South Wales
Court of Criminal Appeal

CITATION:	TECTOR v REGINA [2008] NSWCCA 151
HEARING DATE(S):	28 May 2008
JUDGMENT DATE:	4 July 2008
JUDGMENT OF:	Giles JA at 1; Barr J at 2; Hall J at 3
DECISION:	(1) Leave to appeal be granted and the appeal allowed. (2) The sentence imposed by the District Court of 11 years imprisonment with a non-parole period of seven years for each of the three counts be quashed. (3) In lieu, the applicant is sentenced as follows: (a) Count 1: the applicant is sentenced to 8 years imprisonment dating from 25 August 2006 and to expire on 24 August 2014. (b) Count 2: the applicant is sentenced to 8 years imprisonment dating from 25 August 2006 and to expire on 24 August 2014. (c) Count 3: the applicant is sentenced to 8 years imprisonment dating from 25 August 2006 and to expire on 24 August 2014. (d) In respect of each of the offences in Count 1, Count 2 and Count 3, there is to be a non-parole period of 5 years dating from 25 August 2006 and to expire on 24 August 2011, the date upon which the applicant is eligible to be released on parole.
CATCHWORDS:	CRIMINAL LAW – SENTENCING – appeal against severity of sentence – applicant convicted at trial of Commonwealth offences – three counts of using a carriage service to transmit a communication with intent to procure a person under 16 years age to engage in sexual activity – discussion of sentencing decisions made under State legislation – nature of proposed sexual activity as merely one factor in assessing objective seriousness of offence – maximum penalty for the offence as a relevant consideration – other relevant considerations discussed
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Criminal Code 1995 (Cth) Criminal Code Act 1899 (Q) Criminal Code (Q) Penalties and Sentences Act 1992 (Q) Telecommunications Act 1997
CATEGORY:	Principal judgment
CASES CITED:	Markarian v The Queen (2005) 228 CLR 357 Regina v Burdon [2005] QCA 147 Regina v Campbell [2004] QCA 342 Regina v H (1981) 3 A Crim R 53 Regina v Hays [2006] QCA 20 Regina v Kennings [2004] QCA 162 Regina v McGrath [2005] QCA 463 Regina v Meehan [2007] VCC (21 July 2006) unreported, Victorian County Court Regina v Poynder (2007) 171 A Crim R 544 State of Western Australia v Collier [2007] WASCA 250
PARTIES:	Darren John TECTOR v REGINA
FILE NUMBER(S):	CCA No 2007/2970
COUNSEL:	Crown: J Agius SC App: H Dhanji
SOLICITORS:	Crown: Commonwealth Director of Public Prosecutions App: S E O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/110009
LOWER COURT JUDICIAL OFFICER:	Finnane DCJ
LOWER COURT DATE OF DECISION:	4 May 2007

No 2007/2970

GILES JA
BARR J
HALL J

FRIDAY 4 JULY 2008

DARREN JOHN TECTOR v REGINA

Judgment

1 GILES JA: I agree with Hall J.

2 BARR J: I agree with Hall J.

3 HALL J: This is an appeal against the severity of sentence imposed by the District Court on 4 May 2007. On that date, the applicant was sentenced to 11 years imprisonment with a non-parole period of 7 years for each of three counts of using a carriage service to transmit a communication to a person under the age of 16 years, with the intention of procuring that person to engage in sexual activity, contrary to s.474.26(1) of the Criminal Code 1995 (Cth).

4 The first count concerned the applicant’s use of an internet messaging facility sent along telephone lines through a computer. The second and third counts involved the use of telephone lines to communicate orally with the recipient by the communications.

5 The applicant proceeded by way of application for leave to appeal dated 8 February 2008 and he relied upon two grounds as follows:-

“1. The learned sentencing judge erred in failing to take into account the nature of the sexual activity intended to be procured.
2. The sentences are, in all the circumstances, manifestly excessive.

6 The applicant was charged that on 15 July 2006, 30 July 2006 and 5 August 2006 he, being 41 years of age, used a carriage service in transmitting a communication to the recipient, being a person under the age of 16 years, contrary to s.474.26(1).

7 That provision is in the following terms:-

“474.26 Using a carriage service to procure persons under 16 years of age
1. A person ( the sender ) commits an offence if:-
(a) the sender uses a carriage service to transmit a communication to another person ( the recipient ); and
(b) the sender does this with the intention of procuring the recipient to engage in, or submit to, sexual activity with the sender; and
(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and
(d) the sender is at least 18 years of age.
Penalty: Imprisonment for 15 years.”

8 The expression “carriage service” has the same meaning as in the Telecommunications Act 1997 (Dictionary to the Criminal Code). That expression is defined in s.7 of the latter Act as meaning “… a service for carrying communications by means of guided and/or unguided electromagnetic energy”.

9 Section 474.28(11) of the Code provides that:-

“In s.474.26 and s.474.27 and this section:-
procure a person to engage in sexual activity includes:-
(a) encourage, entice or recruit a person to engage in that activity; or
(b) induce the person (whether by threats, promises or otherwise) to engage in that activity.”
sexual activity means:-
(a) sexual intercourse as defined in s.50AC of the Crimes Act 1914; or
(b) an act of indecency as defined in s.50AB of that Act; or
(c) any other activity of a sexual or indecent nature that involves the human body, or bodily actions or functions.
The activity referred to in paragraph (c) need not involve physical contact between people.”

The trial proceedings

10 Following a plea of not guilty, the trial proceeded in the District Court with a jury. On 22 March 2007, the jury returned with verdicts of guilty to each count.

11 On 4 May 2007, the applicant was sentenced to 11 years imprisonment with a non-parole period of 7 years for each of the three counts, with an order being made that the sentences be served concurrently and commence on 25 August 2006.

12 In the Crown’s written submissions, the facts as determined by the sentencing judge in his remarks on sentence were accurately summarised as follows:-

“ Count 1
At about 7 pm on 15 July 2006 the complainant, who was 12 years of age at the time, was at the Golden Zone Internet Café in the Kogarah area. The complainant was logged on to the internet and had his MSN chat line open. The Appellant noticed the complainant and passed him a hand written note with his personal email address written on it. He asked the complainant to add him to this list of contacts. The complainant complied with the Appellant’s request and the Appellant began conversing with the complainant via the MSN internet facility. During the course of this email correspondence, the Appellant sent a message to the complainant offering to pay the boy $10 to play with his penis. The complainant became concerned, left the premises and went home and told his mother.
The complainant’s mother checked her son’s email and established that the emails that the complainant had told her about had in fact been received. Those emails had 2 particular addresses on them. The complainant’s mother, pretending to be her son, then commenced to communicate with the Appellant for a number of days. On 22 July 2006 she engaged the accused in email conversations for some 30 minutes. During that discussion the Appellant asked:-
‘Do you remember those cheeky questions? Did you tell anyone about those cheeky questions? Did you think about them anymore?’
The Appellant also repeatedly sought the mobile phone number of the boy and eventually the complainant’s mother provided this together with a photograph of her son. Throughout these online conversations the offender used the pseudonym ‘Dan’.
Count 2
On Sunday 30 July 2006, the Appellant rang the complainant on the complainant’s mobile phone, introducing himself as Dan and saying ‘Are you still interested in my playing with your dick’. The appellant told the complainant that he was on a public telephone. The complainant recognised the voice of the Appellant from conversations he had had with him at the Golden Zone Internet Café.
Subsequent Police investigation revealed 2 telephone calls made from a public telephone booth in Forest Road Hurstville to the complainant’s mobile. The evidence disclosed that the public phone booth was close to a café known as the Digitime Internet Café, the location at which the Appellant was ultimately arrested on 25 August 2006.
Count 3
On 5 August 2006 the Appellant again rang the complainant on his mobile phone, saying to him; ‘Do you want to tell me how I will touch you’. The complainant replied ‘okay’ and the Appellant said ‘do you want me to do it on the inside or the outside and are you doing it for money or what?’
Again Police investigations revealed that the calls to the complainant were made from the same telephone booth in Forest Road Hurstville.
On 19 and 20 August 20006 detectives assumed the online identity of the complainant and engaged the Appellant in internet conversations. During these conversations, the Appellant expressed a desire to meet with the complainant, but was reluctant to do so unless the complainant confirmed his identity by means of a telephone call.
On 25 August, assuming the identity of the complainant, police initiated a further online conversation with the Appellant. While the conversation was continuing, other police entered the Digitime Internet Café at 267 Forest Road Hurstville and arrested the Appellant who was seated at a computer terminal and in the process of typing messages to the AFP agent who was masquerading as the complainant. On 1 September 2006 the complainant looked at a photo board display and picked the Appellant from a number of photos as being the man who had first approached him in the internet café.”

13 In the written outline of submissions for the applicant, it is stated that no issue is taken with the facts of the offences as set out in the remarks on sentence (pp.2 to 6).

14 The evidence established that, from 15 July 2006, being the date upon which the applicant initially targeted the child in question (to whom I will refer in this judgment as the recipient), he continued his attempts to pursue him over a period of approximately six weeks (until he was arrested on 25 August 2006).

15 The applicant gave evidence at the trial denying the offences. He did not give evidence at the sentence hearing. There was tendered on his behalf at the sentencing hearing, a report of John Machlin, clinical psychologist, dated 19 April 2007.

16 The applicant’s criminal history was tendered, which included previous convictions relating to sexual misconduct with young children. The Crown’s written submissions set out a summary of the previous convictions as follows:-

DATE	COURT	OFFENCE	RESULTS
1.5.1998	Sydney District Court	1. Homosexual intercourse with male under 10 years. 2. Indecent assault (under age 10 years). 3. Act of indecency person under 16. 4. Aggravated indecent assault.	1. Fixed term: 2 years commencing 1.5.1998. 2. Fixed term: 12 months commencing 1.5.1998. 3. Fixed term: 12 months commencing 1.5.1998 concluding 30.4.1999. 4. Fixed term: 12 months commencing 1.5.1998 concluding 30.4.1999.
4.4.1995	Sydney District Court	1. Indecent assault under 10 years 2. Indecent assault upon person under 10 years.	1. Fixed term: 9 months from 4.4.95. 2. Minimum term 9 months from 4.4.95 add term 15 months release subject to supervision.

The psychological assessment

17 The report of John Machlin, clinical psychologist, dated 19 April 2007 was based upon an assessment undertaken by Mr Machlin of the applicant at MRRC Silverwater on 12 April 2007. The interview and psychometric assessment took place over a period of two to two and a half hours on that date. Mr Machlin recorded that the applicant co-operated willingly and courteously with the assessment and responded expansively to questions. He impressed as being of above average intelligence and he spoke articulately and coherently.

18 The history provided to Mr Machlin by the applicant was of a troubled childhood.

19 Mr Machlin referred to the applicant’s unusually high level of insight into his problems and to this and other factors that were said to be favourable indicators for therapy. He gave an account of having committed himself willingly to sex offender treatment in the past and “... would like the opportunity to do so again …” (p.4).

20 Mr Machlin diagnosed a moderately depressive personality style and recorded that, according to the applicant at the time of the offences, he underwent a relationship break-up and that work problems had precipitated low mood and low self-worth. However, there was an insufficient basis to establish a diagnosable depressive condition. Mr Machlin’s impression was, as recorded in his report, that the applicant had genuinely accepted responsibility for his offences and was genuinely remorseful in view of their impact upon his victim. Mr Machlin concluded by saying that he believed that the applicant would willingly commit once again to rehabilitation and that he was a suitable candidate.

21 The Crown referred to a report by Dr Fisher in sentence proceedings in 1995 in which the applicant was said to have a “paedophilic orientation” but that it was “highly unlikely he would re-offend”. The Crown also observed that, in light of the subsequent convictions for offences of the same type and the jury’s verdict in the present case, it was clear that Dr Fisher’s optimism had been misplaced.

22 The Crown also referred to a report of Dr Jeremy O’Dea dated 9 December 1997. Dr O’Dea is a forensic psychiatrist and he concluded that the applicant satisfied the DSMIV(1) diagnostic category, Paedophilia, sexually attracted to males, exclusive type. In paragraph 28 of his report he stated:-

“The risk of further offending behaviour will remain a long-term issue for Mr Tector who will require to remain very motivated and committed to long-term psychiatric supervision in the community in order to minimise his risk of re-offending.”

Remarks on sentence

23 The sentencing judge observed that s.474.26(1) was introduced into the Criminal Code in 2004 and that its provisions were intended to provide protection for children from what his Honour referred to as “soliciting” to engage in sexual activity.

24 His Honour referred to the applicant’s persistence in that he “repeatedly sought the mobile phone number of the boy …” (p.4) and to the assumed name “Dan” in all discussions with the under aged person.

25 The second and third offences effected by telephone communication included specific questions being put to the recipient effectively seeking an affirmative response to the applicant’s proposal for him to undertake sexual activity in the nature of genital stimulation.

26 The sentencing judge referred to evidence that supported an inference or conclusion that the applicant, in making the communications, did so in a way that protected his identity (including in particular the use of public telephones) and to the fact that he exercised caution (on 19 and 20 August 2006) by seeking to confirm the recipient’s identity before meeting him.

27 His Honour placed considerable emphasis upon the matter of general deterrence in sentencing the applicant. In that respect, he emphasised in his remarks on sentence the need for protecting children in the community from adults who seek to procure the engagement of children in sexual activity. His Honour also had regard to the activity proposed by the applicant:-

“The children of our community must be protected from people like him. It is doubtful I think that he would fully appreciate the harm that he does. I have no doubt that a lot of rationalisation would convince him that he was doing very little harm at all. There is no suggestion that he ever contemplated beating the child, or ill-treating the child. All that he was seeking to do in his own way of looking at things, was to get this child to touch him on his penis, either outside his clothes or inside his clothes so that he could get sexual gratification.
Luring children into such activities almost inevitably damages them for life …” (remarks on sentence, pp.11 to 12)

28 His Honour also stated that he considered there were no significant prospects of rehabilitation.

29 In relation to specific or individual deterrence, the sentencing judge stated (remarks on sentence, pp.12 to 13):-

“… it seems to me that I should impose a sentence, which ensures that for quite a considerable period, he cannot engage in activities that could bring harm to young male children …”

30 His Honour observed:-

“The three offences were committed within a short period of one another and in a real sense, I suppose, it could be said they all arise out of the same general transaction. Therefore, whilst I impose a sentence on each one, that sentence will reflect what I regard as the overall criminality of all three. I take into account also the need to balance any sentence by the principle of proportionality …
Having considered all of these matters, I consider this offence as an offence of extreme seriousness. Accordingly, I intend to impose an overall sentence of 11 years imprisonment and I intend to impose an overall non-parole period of 7 years. I intend to recommend that he be given the benefit of sexual counselling. In my view, he should not be released to parole at all, unless the authorities are fully satisfied that he has done something about his sexual maladjustment from which he suffers.”

31 The sentencing judge then went on to state that the sentences would be back-dated to 25 August 2006, being the date the applicant was taken into custody.

The grounds of appeal

Ground 1: The learned sentencing judge erred by taking into account the nature of the sexual activity intended to be procured.

32 Mr H Dhanji of counsel, who appeared on behalf of the applicant (but who did not appear in the proceedings below), observed that it had been submitted to the sentencing judge that the nature of the intended conduct was a relevant matter. Had the applicant in fact carried out the proposed activity, then an offence of indecent assault would have been committed under the Crimes Act 1900 (NSW). Mr Dhanji observed that an offence of aggravated indecent assault under that Act would have been the subject of a maximum penalty of 7 years (s.61M(1), Crimes Act). This, it was observed, was in contrast to the maximum penalty of 15 years for an offence under s.474.26(1).

33 Further, in his written submissions (paragraph 9), the following passage from the remarks on sentence were quoted (remarks on sentence, p.2.2):-

“During the course of argument, it was put to me that if these offences had not been preferred under the Criminal Code , they would have been nothing more than a summary offence matter to go before a magistrate. That is, some sort of attempt to solicit, or attempt to have sexual intercourse with a minor. I do not agree. In my opinion, if the police in this case had decided not to pursue the matter under Commonwealth legislation, they could have brought charged under State legislation relating to the prostitution of children, because an attempt to get a child to engage in sexual activity for the purposes of payment is an attempt to prostitute a child. Such offences carry penalties of the same order as the Commonwealth offences.”

34 It was submitted that this observation was not to the point and that in an offence under s.91D of the Crimes Act, it would still be necessary to take into account the nature of the sexual activity engaged in.

35 In oral submissions for the applicant, it was contended that it was necessary, in relation to the communication made by the applicant “… that we look at the nature of the communication and the nature of the sexual activity that is sought to be procured” (transcript p.3).

36 In developing the submission, reliance was placed upon the contrast between what was termed a “more explicit” communication and a communication that was not so explicit. In the present case it was submitted that the sexual activity sought to be induced was “… at the lower end of the scale” (paragraph 11). It was observed that there was no suggestion of intercourse of any form (which it was emphasised may involve various degrees of seriousness). In this case, the observation was that the contact proposed may have been made through clothing and there was no suggestion of violence (other than that implicit in the sexual activity itself) contemplated. It was also observed that no other person or persons were involved in the matter.

37 It was submitted for the applicant that the sentencing judge was required to consider the “proposed activity as part of the assessment of the objective gravity of the offence. This, the sentencing judge failed to do” (paragraph 13 of the written outline of submissions for the applicant).

38 Further, in oral submissions, it was argued that, in the context of s.474.26(1)(b), there was a requirement in evaluating the offences that “… one looks to precisely what it is that is sought to be procured and it is that that will assist in determining the objective gravity of the offence, at least with respect to that element …” (transcript, p.4).

39 Accordingly, it was argued that the sentencing judge had erred by failing to take into account the nature of the sexual activity intended to be procured.

40 The Crown submitted (written submissions, paragraph 6.4), that the nature of the sexual activity is “… but one of the factors to be taken into account in assessing the objective seriousness of the offending …” (paragraph 6.4).

41 The Crown emphasised that the sentencing judge was entitled to have regard to the type of conduct which the Commonwealth legislation proscribed.

42 The Crown also contended that the seriousness with which the community regards the anonymous use of communication services such as the internet for “predatory sexual conduct” towards children is reflected in the Parliament having set a maximum penalty for the offence of 15 years imprisonment. The Crown submitted:-

“6.8 In this case, the facts as found by the jury are precisely those that the legislation is aimed at penalising. The offender, a man of mature years, used a carriage service to seek out a child who he believed to be 12 years of age in order to entice him to engage in sexual activity with him for payment. As has been said previously, the nature of the proposed sexual activity is but one factor to be taken into account. The overriding consideration is to give effect to the legislative intent of the section. His Honour did precisely that.”

43 The Crown submitted in any event that the sentencing judge did, in fact, have regard to the nature of the proposed activity. It submitted that no error had been demonstrated in relation to either ground of appeal relied upon in this case.

Ground 2: The sentences are, in all the circumstances, manifestly excessive

44 Whilst Mr Dhanji acknowledged the seriousness of the applicant’s conduct, he again observed that the sexual contact that the applicant sought to engage the recipient in was not of the most serious kind.

45 Whilst he acknowledged that the applicant’s criminal record was a “concerning matter”, he submitted that the applicant was not in the category of child sexual predator where there is a failure to recognise the aberrant nature of their conduct. In this respect, reference was made to observations of Mr Machlin in his report, in particular, to the matters that indicated a willingness and a capacity for therapy. Mr Dhanji further noted that the present offences occurred some nine years after the last offences and that this was against the background of a relationship break-up and work related problems.

46 The applicant did not have the benefit of a plea of guilty. However, that said, it was submitted on his behalf that the sentences of 11 years with a non-parole period of 7 years was “… very significantly beyond anything imposed for comparable offences. The discrepancy is of an extent that cannot be reconciled by reference to the applicant’s record or the absence of a plea of guilty” (written outline of submissions for the applicant, paragraph 23).

47 The Crown submitted that the sentence imposed was appropriate in all the circumstances and that the applicant had failed to make out Ground 1 and this ground of appeal.

Decisions under State legislation

48 In the written submissions of both the applicant and the Crown, considerable attention was given to sentencing decisions made under State legislation. These included, in particular, the decisions in Regina v Poynder (2007) 171 A Crim R 544; State of Western Australia v Collier [2007] WASCA 250 and Regina v Meehan [2007] VCC (21 July 2006) unreported, Victorian County Court. Sentences imposed under State legislation for procuring offences of a similar nature do not provide guidance as to the appropriate sentencing range for the purposes of the present case. Mr Dhanji frankly and, with respect in my opinion, correctly acknowledged that these cases are of limited assistance.

49 However, as a number of decisions in relation to offences under s.218A(1)(a) of the Criminal Code Act 1899 (Q) were referred to in the course of submissions, it is appropriate to examine them for the purpose of determining whether they may provide assistance in identifying the type of aggravating or mitigating circumstances relevant to offences committed under s.476.26(1) of the Criminal Code (Cth).

50 Section 218A of the Criminal Code (Q), inserted into that Code with effect from 1 May 2003, is in the following terms:-

“(1) Any adult who uses electronic communication with intent to:-
(a) procure a person under the age of 16 years, or a person the adult believes is under the age of 16 years, to engage in a sexual act, either in Queensland or elsewhere; or
(b) expose, without legitimate reason, a person under the age of 16 years, or a person the adult believes is under the age of 16 years, to any indecent matter, either in Queensland or elsewhere;
commits a crime.
Maximum penalty – 5 years imprisonment.
(2) The adult is liable to 10 years imprisonment if the person is:-
(a) a person under 12 years; or
(b) a person the adult believes is under 12 years.
(3) For subsection (1)(a), a person engages in a sexual act if the person:-
(a) allows a sexual act to be done to the person’s body; or
(b) does a sexual act to the person’s own body or the body of another person; or
(c) otherwise engages in an act of an indecent nature.
(4) Subsection (3) is not limited to sexual intercourse or acts involving physical contact.
(5) For subsection (1)(a), it is not necessary to prove that the adult intended to procure the person to engage in any particular sexual act.
(6) Also, for subsection (1)(a), it does not matter that, by reason of circumstances not known to the adult, it is impossible in fact for the person to engage in the sexual act.
(7) For subsection (1), it does not matter that the person is a fictitious person represented to the adult as a real person.
(8) Evidence that the person was represented to the adult as being under the age of 16 years, or 12 years, as the case may be, is, in the absence of evidence to the contrary, proof that the adult believed the person was under that age.
(9) It is a defence to a charge under this section to prove the adult believed on reasonable grounds that the person was at least 16 years, or 12 years, as the case may be.
(10) In this section:-
electronic communication means email, Internet chat rooms, SMS messages, real time audio/video or other similar communication.
procure means knowingly entice or recruit for the purposes of sexual exploitation.”

51 In sentencing an offender for an offence of a sexual nature committed in relation to a child under 16 years, the sentencing court must have regard primarily to the matters in s.9(6) of the Penalties and Sentences Act 1992 (Q).

52 Regina v Kennings [2004] QCA 162: the applicant was the first person to be sentenced for an offence under s.218A. He was 25 years old at the time of the offence. He visited a mainstream chat rooms and conversed with a police officer who posed as a 13 year old girl for the purpose of catching sexual predators in internet chat rooms. Relevant matters included:-

(1) The applicant’s persistent (over four days) and aggressive pursuit of a meeting with the person.

(2) The fact that the applicant had no previous convictions.

(3) He had voluntarily sought referral to a psychiatrist with positive results for treatment.

(4) Medical assessment that he had a low risk of re-offending.

(5) There was an element of enticement by the police.

(6) There was no real child involved. This was expressly found as a relevant consideration on penalty with reference in this regard to s.9(6) of the Penalties and Sentences Act .

(7) The applicant’s personal circumstances and obvious remorse and co-operation with the authorities.

(8) The ongoing medical treatment and prognosis.

53 The applicant had been in custody for three months as at the date of the appeal. The sentence of a term of imprisonment of two and a half years, to be suspended after serving nine months imprisonment for an operational period of four years, was held to be excessive and was set aside. In lieu, he was sentenced to a term of imprisonment of 18 months to be suspended immediately, for an operational period of four years.

54 Regina v Campbell [2004] QCA 342: the applicant was sentenced to 18 months imprisonment suspended after three months with an operational period of four years.

55 The applicant was aged 22 years at the time of the offences. He had five conversations with a police officer who posed as a 13 year old girl. The evidence established he was desirous of arranging a meeting with her.

56 The language used was very sexually explicit. He sent over the internet two photographs of himself depicting sexual activity.

57 The applicant had no previous convictions and his personal circumstances were similar to Kennings (supra).

58 Whilst he was not as insistent or aggressive in seeking a meeting as Kennings, that was amply balanced out by the more explicit sexual nature of the conversations and the photographs.

59 The Court of Appeal dismissed the appeal by the applicant.

60 Regina v Burdon [2005] QCA 147: the applicant was 50 years of age. He was charged with two offences under s.218A of using the internet to expose a person he believed was under 16 years to indecent matter and a procuring offence under the section.

61 He was sentenced to community service on the first count and to 18 months imprisonment wholly suspended with an operational period of two years on the second count.

62 As in the cases of Kennings and Campbell, a police officer pretended to be a 13 year old girl. There were two separate conversations on 27 March 2004 and 5 April 2004, the second constituting the offence in Count 1. Thereafter, the offender continued to discuss sexual matters with the police officer acting in the pretence of being the 13 year old girl. The discussion involved extremely explicit sexual matters. He arranged to meet her and, on attending at the appointed place and time, was arrested by police.

63 He admitted the offences. The Prosecutor at sentence urged the sentencing judge to impose a term of imprisonment of 18 months suspended after three months to recognise the mitigating factors and the early plea of guilty.

64 The applicant had occupied a prominent place in his community and the local media interest in the case caused him great shame. He had no prior convictions.

65 The opinions of a treating psychologist and psychiatrist was that the offender was unlikely to re-offend.

66 The Court of Appeal noted that the sentencing judge had recognised the importance of general deterrence and the clear policy behind the legislation to protect young people from such behaviour as occurred in this case.

67 On appeal, the Court noted the maximum penalty was five years imprisonment and that the sentencing judge had not placed undue emphasis on the offender having been shamed.

68 The Court observed that the conversations initiated by the offender were comparable in their sordidness to those in Kennings (supra) and that in both cases arrangements had been made to meet the “child” to pursue the lewd suggestions.

69 The Court of Appeal observed:-

“The widespread use of the internet in Australia, especially amongst young people, gives those like Burdon disposed to corrupting and sexually exploiting children unprecedented access to vast numbers of potential victims. In enacting s.218A Criminal Code the legislature has plainly intended to punish those who commit such acts and to deter those who might otherwise consider taking part in such behaviour with the aim of protecting children from predatory conduct of this type. It is of concern that Burdon, a successful middle aged businessman, who, in other ways, has been a worthy member of the community, would prey on an apparent 13 year old innocent and vulnerable child. His approaches were sickening and his persistence in encouraging the fictional Angela to meet him extremely concerning.
As in Campbell and Kennings, there was no real victim in the case and the sentence imposed cannot be as severe as if he had physically carried out his suggestions made over the internet. Nevertheless, denunciation, just punishment and special and general deterrence are important factors in determining sentences in cases like this.”

70 The Court of Appeal dismissed the Crown appeal. The sentence imposed in Burdon (supra) is to be understood in light of:-

• The maximum penalty of five years imprisonment.

• The Prosecutor’s submission to the sentencing judge to impose a term of imprisonment of 18 months suspended after three months.

• The offender’s early plea of guilty and co-operation with the authorities.

• The medical and psychological evidence that support a low risk of re-offending and the offender having embarked on his own rehabilitation.

• The medical evidence that, at the time of the offence, the offender had been devastated and overwrought by the death of his father.

• The offender’s unblemished record in the community.

71 The Court of Appeal noted that it was a difficult decision as to whether these combined mitigating factors were sufficient to allow the imposition of an effective non-custodial sentence. The fact that the offender had completed 240 hours of community service in an exemplary manner, and the fact that the matter was still hanging over him with resultant public notoriety since arrest on 22 April 2004, were, the Court of Appeal held, additional matters that tipped the scales in his favour and accordingly the Attorney-General’s appeal was not allowed. The Court concluded:-

“Nevertheless, people who are considering using the internet like Burdon to attempt to make contact with young people with a view to corrupting or sexually exploiting them must now be on notice that such behaviour will be likely to result in a salutary penalty generally involving a term of actual imprisonment, even where indecent physical contact does not and could not eventuate.”

72 In Regina v McGrath [2005] QCA 463, the applicant had pleaded guilty to five offences under s.218A, receiving a sentence of four months imprisonment for each of his offences. These five offences comprised two counts of using the internet with intent to procure a child under 16 to engage in a sexual act under s.218A(1)(a), and three counts of using the internet to expose a child under 16 to indecent matter under s.218A(1)(b).

73 The applicant was aged 19 years at the time of the offence and had no prior convictions. The offences arose out of the applicant’s communications with two internet users – ‘Bec’ and ‘Tabitha’ – both supposed girls of age 13. They were, in fact, police officers.

74 In determining the application for leave to appeal the severity of sentence, the Court of Appeal had regard to:-

• The nature of the contact: the contact with Bec having been ‘relatively sporadic’ while the correspondence with Tabitha being of greater continuity.

• The content of the conversations: in particular, conversations with Bec in which blatant sexual propositions were put to her and instructions on how to perform sexual acts were provided.

• The absence of definite meeting arrangements: notably, in regards to Tabitha, the applicant had in later communications evidenced a disinclination to meet her.

• That the applicant had not sent explicit images to either supposed girl.

• That no real child was involved.

• As well as his guilty plea, his youth, and his low risk of re-offending.

75 Upon consideration of these matters, the Court determined, in respect of counts one and two, a sentence of four months imprisonment, suspended forthwith (the applicant having spent six days in custody) and with an operational period of 12 months was appropriate. In respect of the three remaining counts, the Court ordered that the applicant be placed on a 12 month probationary period.

76 Regina v Hays [2006] QCA 20: In relation to an application for leave to appeal against the severity of sentence, the applicant had previously pleaded guilty to four offences under s.218A, those being, two counts of intent to procure under s.218A(1)(a) and two counts of intent to expose under s.218A(1)(b).

77 The applicant appealed against his sentence of a term of imprisonment of 18 months, suspended after three months and with an operational period of two years.

78 The applicant, aged 29 years old, had used a chat room to engage in sexually explicit internet communications with another person, believed by the applicant to be a 13 year old girl (but who was, in fact, a police officer).

79 Whilst the appellate court acknowledged an absence of attempt by the applicant to arrange a meeting with the supposed girl, this was outweighed by other circumstances unfavourable to the applicant.

80 In refusing leave to appeal, the Court noted that the applicant had instigated the conversations with the supposed girl, that these conversations were explicit (extending to the provision of graphic instructions on how to masturbate herself) and that on two occasions the applicant had transmitted ‘over an appreciable’ period moving, real time images of himself masturbating. Furthermore, of relevance, the applicant had sought from the supposed girl, names of her friends similarly online, and having been provided with such names, later communicated with one such ‘friend’ (in reality, another police officer). These facts prompted the Court to hold that the sentence imposed, requiring actual imprisonment, was not manifestly excessive.

81 The above five sentencing decisions under s.218A of the Criminal Code (Q) share similar circumstances including, in particular that:-

• The offenders were (apart from Burdon ) comparatively youthful.

• There was no real child victim involved.

• Each involved early pleas of guilty.

• The offenders did not have any prior convictions.

• The risk of recidivism was considered to be low (although in Hays there was no evidence that the offender had undergone counselling).

• The maximum penalty in all five cases was five years.

Consideration

82 The Crown, as earlier noted in its submissions, submitted that it was important for the sentencing judge to focus on “the type of conduct” at which the legislation was directed. Accordingly, it contended, consideration needed to be given to the sentence that was “proportionate to the circumstances of the offence”: Crown’s written submissions, paragraph 7.4.

83 In determining the issues raised by Grounds 1 and 2, it is necessary to have regard to the nature of the statutory offence created by s.474.26 of the Code in determining the nature and type of circumstances that may properly be considered to be matters of aggravation of a particular offence and that otherwise bear upon its culpability when determining the appropriate sentence.

84 The provisions of s.474.26 were introduced by the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No 2) (2004).

85 In relation to the mischief to which it was directed, the explanatory memorandum discussed the then proposed provisions of s.474.26 to s.474.29 in the following terms (p.44):-

“Proposed sections 474.26 – 474.29 contain an offence regime targeting adult offenders who exploit the anonymity of telecommunications services (for example, the Internet) to win the trust of a child as a first step towards the future sexual abuse of that child. The practice is known as ‘on-line grooming’.
There are two steps routinely taken by adult offenders leading up to a real life meeting between adult and child victim that results in child sexual abuse:-
(i) The adult wins the trust of a child over a period of time. Adults often use ‘chat rooms’ on the Internet to do this. They may pose as another child, or as a sympathetic ‘parent’ figure. Paedophiles reportedly expose children to pornographic images as part of this ‘grooming’ process. It is proposed to specifically criminalise this practice. Specific offences would remove any doubt about whether ‘on-line grooming’ of a child before actual contact is ‘mere preparation’ (ie, not a criminal offence) or an unlawful attempt to commit child sexual abuse.
(ii) With the child’s trust won, adults often use telecommunications services to set up a meeting with the child. Although this step is more likely to be characterised as an attempt to commit child sexual abuse, than step (i), it is desirable to provide a firm justification for police action by enacting specific ‘procurement’ or ‘solicitation’ offences. This is consistent with the underlying rationale for the new offences: to allow law enforcement to intervene before a child is actually abused.”

86 The explanatory memorandum discussed (at p.45) the proposed s.474.26, observing:-

“The proposed offence in sub-section 474.26(1) would apply to acts of procurement where the sender intends to procure the recipient to engage in sexual activity with the sender. Proposed paragraph 474.26(1)(b) contains this fundamental component of the offences: the sender must actually intend to procure sexual activity. It is not enough for the prosecution to show that the communications between sender and recipient were of a nature that would suggest the sender wanted to engage in sexual activity with the recipient. The prosecution must prove that the sender had this specific intention.”

87 Section 474.26(1) is contained within Part 10.6 – Telecommunications Services. It is part of Subdivision C of that Part which is concerned with “offences related to the use of telecommunications”.

88 The provision is directed to apply to acts of procurement in the use of a carriage service by the transmission of a communication by an adult to a “recipient” as referred to in sub-paragraph (c) of the section to engage in sexual activity. In other words, it is directed to proscribing those specified acts of procurement in the nature of “on-line grooming” [Explanatory Memorandum Australian (Telecommunications and Other Measures) Bill (No. 2) (2004)].

89 The provisions of s.474.26(1) include the following elements:-

• Specified “conduct” – the physical element of the offence – being the transmission of a communication by a carriage service to a “recipient” .

• That such conduct is undertaken with a specific intent, namely, procuring the recipient to engage in, or submit to, sexual activity with the sender.

• The recipient being (or, alternatively, the sender believing him or her to be) under 16 years of age.

• The sender is an adult, that is, at least 18 years of age.

90 The gravamen of the offence, accordingly, is conduct by any adult directed at children under 16 years undertaken with the specified state of mind by way of encouraging, enticing, recruiting a child under 16 years or inducing such a person (whether by threats, promises or otherwise) to engage in sexual activity as defined in s.478.28.

91 The specific intent referred to in s.476.26(1)(b) may, in a particular case, be inferred from the particular terms of the communication.

92 Section 16A(2)(a) of the Crimes Act 1914 (Cth) in Division 2 – General Sentencing Principles – requires a sentencing judge, inter alia, to take into account the “nature and circumstances” of the offences of which the applicant was convicted.

93 Accordingly, as earlier noted, the nature of the offence created by s.476.26 and the circumstances associated with an offence are central matters in determining an appropriate sentence for such an offence.

94 I consider that, in addition to the nature of the sexual activity proposed by the applicant, the following matters were relevant to the determination of the sentence in this case:-

(1) The fact that a monetary offer was made by the applicant by way of inducement in his communication to the recipient on 15 July 2006 (Count 1).

(2) The invitation on 15 July 2006 to the recipient to engage in sexual activity with the applicant.

(3) The applicant’s persistence in pursuing the recipient in telephoning him from a public telephone on 30 July 2006 and on 5 August 2006 in which he asked the recipient if he was interested in engaging in sexual activity with him.

(4) The fact that the recipient was significantly below the age of 16 years, namely, 12 years of age.

(5) The extent of the age differential between the applicant (54 years at the date of the offences) and the recipient.

(6) The steps taken by the applicant to preserve his anonymity – the use of a false name “Dan” , the anonymous use of email addresses and the use of public telephones.

95 Communications that fall within s.474.26 may, of course, relate to a range of proposed sexual activity between sender and recipient of varying degrees of seriousness as the definition of “sexual activity” indicates: s.474.28(11).

96 A communication, for example, that expresses an intention to engage in sexual intercourse in contrast to some lesser form of sexual activity is a relevant circumstance in the assessment of the gravity of an offence.

97 However, a communication that contravenes the section may be deliberately or strategically expressed in terms that propose a lower level of sexual activity in order to enhance the prospects of initially establishing a relationship between the sender and the recipient and/or to disguise an existing intention to engage in a more serious level of sexual activity than that proposed. In other words, what may be termed a “low level” of proposed sexual activity may be considered by a “sender” to be more effective in encouraging, enticing or inducing etc a child than one that blatantly conveys a high level of sexual activity.

98 It may, on the facts of a particular case, be open to a sentencing judge in assessing the gravity of a s.472.62(1) offence, not to accept the terms of a communication as a true reflection of the level of sexual activity the sender had in mind, at least where, for example, the “sender” has a relevant history of serious past offending involving sexual activity with children. In other words, the terms of a communication may, but may not always be fully accepted on their face in the assessment of the gravity of an offence under the section.

99 With these considerations in mind, the sentencing judge was correct in having regard to the nature of the offence at which the legislation was directed. It was appropriate for him to consider the nature of the proposed sexual activity in this case as one amongst other factors to be taken into account in assessing the objective seriousness of the offending.

100 The evidence in the present proceedings establishes that the circumstances of the offences were, in a number of respects, significantly different from the Queensland cases examined above. In particular, the applicant was convicted after a trial on three counts under s.474.26(1) and he had prior convictions for actual sexual conduct and there had been no demonstrated commitment by him to receiving treatment or rehabilitation.

101 Whilst the terms of the communications may not have been as explicit as those in certain of the abovementioned cases, their terms (proposing specific sexual activity to a 12 year old) must be considered as a serious breach of s.474.26(1).

102 An important matter which the sentencing judge was required to (and did) have regard to was the maximum penalty prescribed of 15 years imprisonment. This stands in contrast to the maximum penalty of five years imprisonment under s.218A of the Criminal Code (Q) if the child is under the age of 16 years and 10 years imprisonment, if the person is under 12 years.

103 The evaluation of the criminality of an offence is for the sentencing judge to determine upon the relevant evidence in relation to the crime. This requires the court to assess the seriousness of the offence. The maximum penalty for an offence may operate as a yardstick and may, in relation to certain offences, assume particular significance.

104 In Regina v H (1981) 3 A Crim R 53, Street CJ (dissenting in the result) observed (at 65):-

“… deterrence and community disapproval of various crimes, such disapproval carrying with it an expectation by the community of punishment, are accepted aspects of sentencing. The term of imprisonment prescribed by the relevant section of the Crimes Act is the public expression on these matters through the legislative process. It is for the judge to determine how important they are in a particular case but always by reference to the seriousness of the crime itself as pronounced by the penalty provided by the statute.”

105 Recently, the significance of the maximum penalty for an offence as a “yardstick” was discussed by Gleeson CJ, Gummow, Hayne and Callinan JJ in their joint judgment in Markarian v The Queen (2005) 228 CLR 357 in particular, at [30] and [31]. Their Honours said:-

“30. Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book sentencing, Stockdale and Devlin observed that:-
‘A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century … or because it has more recently been set at a high catch-all level … At other times, the maximum may be highly relevant and sometimes may create real difficulties …
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].
31. It follows that careful attention to maximum penalties will almost always be required, first, because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before court at the time; and thirdly, because in that regard, they do provide, taken and balanced with all of the other relevant factors, a yardstick …”

106 In relation to an offence under s.474.26(1), a sentencing judge, in my opinion, is required to give careful attention to the fact that the federal legislature has prescribed a maximum penalty for an offence under the section of 15 years imprisonment and that that, of itself, is a distinguishing aspect to those cases decided under s.218A of the Criminal Code (Q).

107 The question remains as to whether or not, having regard to all of the relevant circumstances, including the maximum penalty for an offence under s.474.26(1), the sentence imposed by the sentencing judge in the present case of a sentence of 11 years imprisonment with a non-parole period of seven years for each of the three offences was manifestly excessive.

108 In my assessment, the circumstances referred to in paragraph [94] characterise the offence as an objectively serious one. Applying the maximum penalty of 15 years as a yardstick for the present case, I consider that, although the offences fall short of what would be considered to be the most serious type of offence under s.474.26(1), they are nonetheless offences involving grave criminality. On that basis, I am of the opinion that the sentencing judge’s assessment of 11 years with a non-parole period of 7 years is outside the appropriate range for a case of this kind. I am, however, of the opinion that they warrant substantial sentences, having regard, in particular, to considerations of individual and general deterrence. It follows that it will be necessary for the sentence in question to be set aside and for this Court to re-sentence the applicant.

109 In the event that this Court did come to re-sentence, the applicant sought to rely upon his own affidavit sworn 18 May 2008.

110 The Crown objected to the affidavit as it had only been recently received and time had not permitted enquiries to be made with the Junee Correctional Centre where the applicant was currently serving his sentence. The particular matter the Crown indicated concern about was the statement in the affidavit (paragraph [2]) that he did not have access to counselling.

111 On 2 June 2008, the Crown filed an affidavit of Rachael Anderson of the Commonwealth Director of Public Prosecutions, sworn 2 June 2008. That affidavit attached a letter from Dom Karauria, the General Manager of the organisation that operates the Junee Correctional Centre. A copy of Ms Anderson’s affidavit has been sent to the applicant’s solicitor.

112 Mr Karauria states in his abovementioned letter that the applicant was received at the Centre as a Protection Requiring Limited Association (PRLA) inmate. He also stated in respect of such inmates:-

“They also have access to one-on-one counselling services where they can submit a form at any time to be seen by a counsellor as soon as the counsellor is available.”

113 Mr Karauria also stated that such inmates have limited access to employment but that the applicant had not completed his “Pre-Employment Course” to be eligible to obtain work.

114 On 10 June 2008, pursuant to directions given by the Court, a letter was sent to the Registrar of the Court by the applicant’s solicitor. In that letter, it is stated that the applicant presses the affidavit filed on behalf of the applicant at the hearing and essentially accepts that he has access to a counsellor in accordance with Mr Karauria’s letters.

115 I am of the opinion that an appropriate sentence for each offence to be a head sentence of eight years imprisonment with a non-parole period of five years.

116 Accordingly, I propose the following orders:-

(1) Leave to appeal be granted and the appeal allowed.

(2) The sentence imposed by the District Court of 11 years imprisonment with a non-parole period of seven years for each of the three counts be quashed.

(3) In lieu, the applicant is sentenced as follows:-


(a) Count 1: the applicant is sentenced to 8 years imprisonment dating from 25 August 2006 and to expire on 24 August 2014.

(b) Count 2: the applicant is sentenced to 8 years imprisonment dating from 25 August 2006 and to expire on 24 August 2014.

(c) Count 3: the applicant is sentenced to 8 years imprisonment dating from 25 August 2006 and to expire on 24 August 2014.

(d) In respect of each of the offences in Count 1, Count 2 and Count 3, there is to be a non-parole period of 5 years dating from 25 August 2006 and to expire on 24 August 2011, the date upon which the applicant is eligible to be released on parole.
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