Aboud v R - [2021] NSWCCA 77 - NSWCCA 2021 case summary — Zoe

NSWNSWCCA

Aboud v R

[2021] NSWCCA 77

Court of Criminal Appeal (NSW)|2021-03-17|Before: Bellew J, Wilson J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2021-03-17

Before

Bellew J, Wilson J

Catchwords

[2012] HCA 1 Davis v R [2015] NSWCCA 90 Hili v The Queen
Jones v The Queen (2010) 242 CLR 520
[2010] HCA 45 Holyoak v R (1995) 82 A Crim R 50 Huang v R (2018) 96 NSWLR 743
[2018] NSWCCA 57 Jinde Huang aka Wei Liu v R [2018] NSWCCA 70

Source

Original judgment source is linked above.

Catchwords

[2012] HCA 1 Davis v R [2015] NSWCCA 90 Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45 Holyoak v R (1995) 82 A Crim R 50 Huang v R (2018) 96 NSWLR 743[2018] NSWCCA 57 Jinde Huang aka Wei Liu v R [2018] NSWCCA 70(2018) 272 A Crim R 266 Johnson v The Queen [2004] HCA 15(2004) 78 ALJR 616 Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37 Power v The Queen (1974) 131 CLR 623[1974] HCA 26 Pratten v R (2017) 94 NSWLR 194[2017] NSWCCA 42 R v Asplund [2010] NSWCCA 316(2007) 171 A Crim R 544 R v Simpson (2001) 53 NSWLR 704[2001] NSWCCA 534 Sabra v R [2015] NSWCCA 38(2015) 257 A Crim R 33 Thammavongsa v R [2015] NSWCCA 107 Weber v R [2020] NSWCCA 103 Wong v The Queen (2001) 207 CLR 584[2001] HCA 64 Xiao v R (2018) 96 NSWLR 1

Judgment (32 paragraphs)

[1]

[3]

Judgment

SIMPSON AJA: I am grateful to Bellew J for his clear and comprehensive analysis of the relevant facts and issues in this appeal against sentence. I have no issue with any of that analysis.
In light of my earlier judgment in Davis v R, [1] however, I should explain why I also did not take issue with his Honour's conclusion that "no lesser sentence is warranted and should have been passed". That terminology is drawn from s 6(3) of the Criminal Appeal Act 1912 (NSW), although with the omission of two important words. Section 6(3) is in the following terms: "On an appeal under s 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." (italics added)
In Davis, with the concurrence of Basten JA and Adamson J, I explained why, in my opinion, a commonly advanced submission on the part of the Crown that "no lesser sentence is warranted in law" should not be accepted. In Thammavongsa v R, [2] R A Hulme J agreed with additional observations.
The task of this Court in resentencing after error has been established in the sentencing process is, as stated in Kentwell v The Queen, [3] to exercise its own sentencing discretion, independently of the sentence imposed at first instance. That task is not discharged by concluding that "no lesser sentence is warranted in law", which is simply wrong unless the sentence imposed lies at the bottom of the available range. As the High Court said in Kentwell, any sentence within an available range is "warranted in law".
The test stated by s 6(3) is a composite one, in two parts, the most important of which is the second - "and should have been passed", which was largely ignored in submissions to which reference was made in Davis and Thammavongsa. Sentencing is not an exact science and no one sentence can be said to be the correct sentence (as distinct from a correct sentence). Thus, any sentence that lies within the available range is "warranted in law". A lesser sentence than that imposed at first instance may, and often is, "warranted in law". It does not follow from that that the lesser sentence "should have been passed". That phrase implies that the established error in the sentencing process had the effect of wrongly elevating the sentence imposed, rendering the sentence excessive in the circumstances. Otherwise, it would not be possible to say that the other sentence "should have been passed".
Whether a lesser sentence should have been passed depends upon a range of circumstances and factors, all of which have, in this case, been thoroughly canvassed by Bellew J. While I consider that a lesser sentence may have been "warranted in law", I am unable also to conclude that any lesser sentence should have been imposed.
With this explanation that there is no inconsistency between the conclusion of Bellew J, and my concurrence in that conclusion, with Davis and Thammavongsa, I agree with the orders proposed by Bellew J, and his Honour's reasons therefore.
BELLEW J: On 15 March 2016 Michael Anthony Aboud (the appellant) pleaded guilty before the Local Court to the following offences: 1. using a carriage service to menace, harass or offend, contrary to s 474.17(1) of the Criminal Code 1995 (Cth) (the Code) (sequence 1); 2. using a carriage service to groom a person under the age of 16 years for sexual activity, contrary to s 474.27(1) of the Code (sequences 16, 17, 18 and 20); 3. using a carriage service to procure a person under the age of 16 years for sexual activity, contrary to s 474.26(1) of the Code (sequence 21).
The applicable maximum penalties were as follows: 1. sequence 1 - 3 years imprisonment; 2. sequences 16, 17, 18 and 20 - 12 years imprisonment; 3. sequence 21 - 15 years imprisonment.
On 29 July 2016, the appellant was sentenced in the District Court by her Honour Judge Wells SC as follows: 1. sequence 1 - imprisonment for 1 year to date from 24 June 2016; 2. sequences 16 and 18 - on each count, 2 years imprisonment to date from 24 June 2017; 3. sequence 17 - 3 years imprisonment to date from 24 June 2018; 4. sequence 20 - 18 months imprisonment to date from 24 June 2017; 5. sequence 21 - 4 years imprisonment to date from 24 June 2019.
The total term of imprisonment imposed was 7 years commencing on 24 June 2016 and expiring on 23 June 2023. Her Honour imposed a single non-parole period of 5 years and 3 months expiring on 23 September 2021.
Following the imposition of that sentence, the appellant sought leave to appeal. This Court granted leave, but dismissed the appeal. [4]
Subsequent to that decision, the appellant brought an application pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Review Act) for an inquiry into the sentence imposed, based upon an asserted failure by the sentencing judge to take into account the utilitarian value of his pleas of guilty. That application stemmed from the decision of this Court in Xiao v R, [5] which was delivered after the appellant's sentence was imposed, and after this Court's previous determination of his application for leave to appeal. The decision in Xiao makes it clear that a sentencing court should take into account the utilitarian value of a plea of guilty when sentencing a federal offender.
The application pursuant to Part 7 of the Review Act was determined by Button J on 20 November 2020, [6] at which time his Honour concluded that it was "very arguable" that the sentencing judge had erred by failing to take into account the utilitarian value of the appellant's pleas of guilty. [7] His Honour concluded that there appeared to be a doubt or question about a mitigating circumstance [8] and made an order referring the matter to this Court to be dealt with as an appeal against sentence under the Criminal Appeal Act 1912 (NSW).
The appellant advanced a single ground of appeal before this Court which is more fully discussed below.

[4]

Overview

The appellant operated two Facebook accounts in the false names of Zac Smith and Zac A Takk. Each account had an accompanying email address, along with photographs depicting a blonde male who was 25 to 30 years of age (in circumstances where the appellant was aged 47). Both accounts had a fictitious date of birth of 8 August 1985. [9]
When police approached the appellant on 25 July 2011, he voluntarily participated in an interview in which he admitted being the owner and the sole user of the two Facebook accounts. He said that the purpose of the accounts was to talk to younger people, that he was mainly interested in speaking to females, and that he had put the images of a young blonde male on each account in order to meet younger people. The appellant also admitted having searched the White Pages online for the home telephone numbers of some of the victims of his offending, before contacting them through one or other of the Facebook accounts. The appellant provided police with the passwords and account details for the two accounts, and gave his consent to the police to access them. [10]
The appellant's modus operandi was to trawl through Facebook using the two false accounts with a view to finding, and initiating contact with, his victims, all of whom were teenage girls aged between 13 and 15. The appellant variously employed strategies of flattering and bribing his victims, in an attempt to (inter alia) elicit sexually explicit photographs from them for his own personal gratification. On some occasions, when a particular victim whom he had contacted did not respond to him favourably, the appellant would make it known that he had the victim's home telephone number, and would threaten to tell the victim's parents about the content of their conversations. The sentencing judge found that the appellant put his victims in a position where they had little option but to respond favourably to him, [11] given that the alternative would have involved suffering the consequences of being exposed to their parents and others.
The appellant's threats caused some particular victims to send the appellant photographs of themselves. On some occasions, those photographs were then used by the appellant as what might be described as a form of "leverage" to elicit further responses from his victims, conduct which the sentencing judge described as typical "grooming behaviour". [12] In some cases, the appellant promised his victims accommodation, drinks and cash as a prelude to introducing them to a person he described as "an older friend" with whom he proposed that they have sex. The appellant was, in fact, the "older friend".
Against that general background, the specific instances of offending can be summarised as follows.

[5]

Sequence 1

The offending in relation to the first victim in sequence 1 took place over approximately two months between about January and March 2011. The appellant initially contacted the victim, who was aged 14 at the time, by sending her a private message saying he was 25 years old. The victim responded by saying that she was "not even 15 yet". The appellant then said to her: [13] I just seen your display pic so i had a little creep of your pics…freeking hot pic! Your pretty as
The victim did not respond.
On 10 February 2011, the appellant again contacted the victim stating: Random....your stunning [14]
After repeated instances of contacting the victim had not resulted in a favourable response, the appellant sent the victim a message on 2 March 2011 saying: [15] hey cunt whore
Following negative responses to that message from the victim, the appellant sent her a further message containing her home telephone number which he then followed up with another message which stated: [16] imagine what i could do with your number
The victim responded by threatening to report the appellant to the police. This did not dissuade the appellant who, in an attempt to intimidate the victim, told her that she would be the person in trouble with the police if she made a complaint. [17]
The second victim of the offending in sequence 1, who was aged 13 at the time, was contacted by the appellant on 1 May 2011 with a message saying: …thats a hot display pic…. your pretty and a guy just hav to lurve your body mmm… [18]
The appellant told the victim that he was 25 years of age and requested that she allow him to contact her. [19] He then started to send her sexually suggestive messages such as: [20] ….r u into getting naughty with boys?…how much have u done with boys?
In the absence of a response from the victim, the appellant contacted her on 2 May 2011 asking questions about her sexual activity. He continued to press her to allow him to phone her and continued to pay her compliments, ultimately requesting that she take photos of herself in a bikini and in underwear. [21] The appellant then requested the victim to take "real sexy ones" (i.e. photographs), "like naughty ones", in the context of which he made reference to "legs spread". On the evening of 3 May 2011, when he had not received a response from the victim, the appellant again requested that he be permitted to call her. On that occasion he sent the victim a message containing her own phone number.
The victim ceased contact with the appellant thereafter. [22]
The third victim of the offending in sequence 1 was aged 13. When the appellant contacted the victim, he began to tell her how her pictures made him sexually aroused. He then provided his phone number and repeatedly asked the victim for her phone number and for permission to contact her. [23] The victim did not respond favourably, threatening the appellant that she would contact the police. The appellant's response was to threaten to contact the victim's parents and inform them about her internet activity. [24] The appellant then sent the victim a text message containing her phone number and saying: [25] …ring ring u let me call u on your mobile and i won't call it??
The victim continued to tell the appellant that she did not want him to call her, and asked how he had acquired her telephone number. The appellant continued to threaten to call the victim, and then sent her a message in which he correctly quoted the street number of her residence, stating: [26] u live at number 8, my fav number

[6]

Sequence 16

The appellant first contacted the victim of this offending, who was 15 years of age, on 29 April 2011, by commenting on her physical appearance in the following terms: [27] …wow who's a cutie… your deffs pretty tho hey and your bod…gawd
The appellant's messages continued the following day when he commented on a photograph of the victim in which her navel piercing was visible. The appellant then sent a message to the victim stating: [28] ...Seriously friggin hell!!! Haha what looks real hot is… ya do a pic like that "showing off your belly button" but you be in bikinis and hav the front of your bikinis sooo low, like as low as you possably can. Thats the hottest look when a girl has a great bod. Guys nearly cream their pants and other girls get jealous hahaha.
The appellant then sent a further message: [29] I'd friggin smoke you sooo good
The appellant then asked the victim if she was a virgin and enquired as to the extent of sexual activity in which she had previously engaged. The victim told the appellant that this made her feel uncomfortable and asked him if he knew how old she was. The appellant responded: [30] 17-18 / maybe I don't wanna know then… age makes no diff to me
The victim then told the appellant that she was 15 years of age. The appellant responded: [31] no wonder guys get locked up…i reckon if i had the chance the temptation would be jsut too much
When the victim asked the appellant to clarify what he had meant, he responded: [32] if i had the chance i'd love to fuck your brains out
The appellant then asked the victim about "naughty pics" and requested that she send him pictures in which she was dressed in a bikini or in underwear. He continued to make favourable comments about the victim's physical appearance, following which he sent her his mobile phone number requesting that he be able to message her. The victim told the appellant that she had no credit on her telephone account, in response to which the appellant offered to send her mobile phone credit in order to facilitate their contact. The appellant then said: [33] i could try and bribe u for a few pics or a bit of naughty phone call some time
The appellant continued to contact the victim in an effort to elicit her phone number, and sent his own mobile phone number details to her on more than one occasion. [34]

[10]

Sequence 21

The victim of this offending was 15 years of age. Immediately upon making contact, the appellant engaged in sexually suggestive conversation with her in the course of which the victim intimated her age. [51]
The appellant requested that the victim send him nude photographs of her. The victim told the appellant that she had no mobile phone credit and asked the appellant to provide her with credit in exchange for the photographs. There followed discussions between them as to the potential poses in which the victim could place herself. [52]
The appellant deposited credit into the victim's phone account. The victim and the appellant then had an argument, the victim denying that she had received any credit. The victim reiterated her age but the appellant persisted with his attempt to procure naked photographs of her. [53] Having sent her credit but not having received any photographs, the appellant sent the victim a message containing her home telephone number, demanding that she send him five photographs "leg spread with all of (her) in them". [54]
The victim then sent the appellant four photographs in which she was nude from the waist up. Having received them, the appellant complained about the fact that the photographs did not depict the victim completely naked. He asked that he be allowed to telephone her, following which he threatened that he would call her home phone if she did not send him the nude photographs that he had requested. The conversations continued, reaching the point where the appellant offered the victim $200.00 in exchange for sexual intercourse. [55]
The victim then sent the appellant a naked photograph of herself, explaining how she lost her virginity. That prompted a demand by the appellant for additional photographs of the victim, accompanied by a threat that if they were not sent he would call the victim's mother on her home phone and disclose the conversation they had previously had about the circumstances in which the victim had lost her virginity. That threat was repeated over a number of days until the victim sent the appellant 17 further photographs. [56]
At that point, the appellant raised the suggestion of his "friend" meeting the victim in a motel, and her being paid money in exchange for having sex. In doing so, the appellant told the victim that his "friend" was 41 years of age, and assured her that he was a "good guy". [57]
The appellant then sent the victim a photograph of his penis and asked her to comment on its size. The appellant also stated: [58] fucking younger girls is lots of fun
The appellant continued to harass the victim, to the point that she threatened self-harm if he did not stop doing so. Notwithstanding that threat, the appellant continued with his approaches to her, to the point of calling her home telephone number. Throughout their conversations the appellant regularly telephoned the victim at night, requesting to meet with her and offering to pay her money in exchange for sex. [59]

[16]

Consideration

At the time of the appellant's sentence, s 16A(2)(g) of the Crimes Act 1914 (Cth) (the Act) provided that one of the matters to be taken into account when sentencing a federal offender was the offender's plea of guilty. In Xiao this Court concluded that s 16A(2)(g) (in its then form) required a sentencing judge to take into account the utilitarian value of such a plea. [66]
Following Xiao, this Court delivered judgment in Jinde Huang aka Wei Liu v R. [67] In that case Bathurst CJ (with whom the other members of the Court agreed) said the following in relation to the operation of s 16A(2)(g) in its original form: [68] [9] Because somewhat divergent views have been expressed on the issues raised in this appeal, it may be of assistance to specify the approach which should be taken by sentencing judges in dealing with the utilitarian value of a plea of guilty in respect of Commonwealth offences having regard to the decision in Xiao v R and the judgment handed down in the present case: (1) Sentencing judges should take into account the utilitarian value of a plea in Commonwealth sentencing offences. Failure to do so constitutes error. (2) It is desirable that any discount given for the utilitarian value be specified. However, a failure to do so would not of itself constitute error. (3) It is an error to specify a range of percentage discounts as distinct from a specific percentage.
Section 16A(2)(g) was amended following the decision in Xiao, [69] and now requires a sentencing court to take into account, in addition to the fact of the plea itself: 1. its timing; and 2. the degree to which the plea, and its timing, resulted in any benefit to the community, any victim or any witness.
The Crown's concession in this Court that error is established in the present case was, in my view, an appropriate one. There was no dispute that the appellant's pleas had been entered in the Local Court, and thus at the earliest possible opportunity. Her Honour did not specify the discount which she applied but there is nothing to suggest that the discount should have been anything less than 25%. In circumstances where her Honour made no reference to the utilitarian value of the appellant's pleas of guilty, the only available conclusion is that she did not take that matter into account. I am therefore satisfied that the ground of appeal has been made out.
It follows that this Court must resentence the appellant in the fresh exercise of the sentencing discretion. In that regard, the appellant relied on his affidavit of 19 February 2021, an earlier affidavit of 15 June 2017 which was relied upon in his previous application for leave to appeal, and an affidavit of Stephen Eccleshall, solicitor, of 19 February 2021, which annexed a number of documents which were before this Court at the hearing of that application.

[17]

Submissions of the appellant

In written submissions, counsel for the appellant pointed to the fact that prior to this offending the appellant had no criminal convictions of any kind, had enjoyed a stable family life, had been active in the community, and had no issues with alcohol, illicit drugs, or sexual misconduct. Counsel also submitted that the appellant was truly remorseful for his offending.
In oral submissions, counsel for the appellant focussed on three matters, the first of which was the appellant's assistance. In this regard, counsel directed particular attention to the fact that the appellant had: [70] 1. voluntarily attended the police station when contacted by police; 2. taken part in a record of interview in which he had made admissions as to (inter alia) his ownership and use of the two Facebook accounts through which the offending took place; and 3. supplied his passwords for these accounts to police, and had given the police permission to access them.
Counsel submitted that the appellant's co-operation entitled him to a "small discount", over and above that to which he was entitled in recognition of the utilitarian value of his pleas of guilty. As I understood it, counsel's reference to a "small discount" was a reference to a discount specifically quantified in percentage terms.
Secondly, counsel highlighted the substantial, and what was submitted to be the unjustified, delay in bringing the proceedings. He pointed out, in particular, that in circumstances where the offending had been discovered in 2011, and where the appellant had, by his co-operation, essentially provided the police with a large amount of the evidence against him, a period of four years had elapsed before he was charged. Counsel submitted that whilst the reason(s) for that delay were entirely unexplained, there had been no suggestion that the appellant had been in any way responsible for it. Counsel also pointed out that the appellant had not offended, in any way, in the 4 years which had elapsed between his interview with police and the laying of the charges.
In addressing this issue, counsel for the appellant submitted that delay remained a matter to be taken into account even though it is not a matter to which specific reference is made in s 16A of the Act. Counsel submitted that the terms of s 16A(2), and in particular the use of the words "in addition to any other matters" which appear at the commencement of that sub-section, supported a conclusion that the matters set out in s 16A(2) do not constitute an exhaustive list of the matters that may be taken into account when sentencing a federal offender, and do not exclude the application, in an appropriate case, of common law principles of sentencing.
Thirdly, counsel submitted that the appellant had good prospects of rehabilitation. In this regard, he pointed to the affidavit material which, he submitted, established that the appellant had made productive use of his time in custody.
In advancing all of these submissions, counsel for the appellant expressly acknowledged the objective seriousness of the offending.

[19]

CONSIDERATION

Before dealing with the question of resentence, it is necessary to address the discreet issue raised by counsel for the appellant as to whether it is open to take into account, when sentencing a federal offender, a matter such as delay to which no specific reference is made in s16A(2) of the Act.
Section 16A is in (inter alia) the following terms: 16A Matters to which court to have regard when passing sentence etc. - federal offences (1) In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. (2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court: (emphasis added) ……..
In Pratten v R [71] Basten JA (with whom the other members of the Court agreed) considered the extent to which delay should be taken into account in determining an appropriate sentence for taxation offences. Having reviewed a number of authorities, his Honour said: [72] These cases do not stand for the proposition that where there has been a significant lapse of time between the date of the offending and the trial, where the offender has caused the delay, that the offender can then rely upon that fact in mitigation of sentence. Indeed, any such principle would be an invitation to offenders to take all available steps to delay a trial. Accordingly, not only did the authorities relied upon by the sentencing judge not warrant the conclusion that delay could be treated as a mitigating factor; in principle it would be a most unusual case in which such a consideration could be taken into account. In any event, for reasons discussed in relation to the taxation frauds, these principles have no application unless located in Pt 1B of the Crimes Act, or otherwise picked up by a federal law (emphasis added).
In the course of the present hearing, counsel for the appellant drew attention to the italicised passages of his Honour's judgment and queried the proposition that in the absence of some reference in Part 1B of the Act, or otherwise in the absence of being picked up by a federal law, it was not open to take delay into account when determining an appropriate sentence for a federal offender. Counsel submitted, in effect, that the terms of s 16A(2) of the Act, and in particular its opening words, allow a Court to have regard to common law principles of sentencing, irrespective of whether such principles are referred to, or located in, Part 1B of the Act, or otherwise picked up by a federal law. I accept that submission for the following reasons.
Section 16A(2) of the Act mandates that the Court take into account the factors set out in sub-paragraphs (a) to (p), to the extent that such factors are relevant and known to the Court. The opening words of s16A(2) make it clear that the matters in s16A(2)(a)-(p) do not constitute an exhaustive list of relevant considerations on sentence. To the extent that those matters might be relevant in a particular case, they must be taken into account "in addition to any other matters". In my view, the words "in addition to any other matters" make it clear that in sentencing a federal offender, a Court is not limited to take into account only those factors for which express provision is made. That view is supported by historical considerations.
Section 16A was inserted into the Act by the Crimes Legislation Amendment Act (No. 2) 1989 (Cth) and commenced operation on 17 July 1990. In its original form, s 16A(2) made no provision for general deterrence to be taken into account on sentence. That remained the position until November 2015 when the Crimes Legislation Amendment (Powers, Offences and Other Measures Act 2015 (Cth) [73] inserted paragraph (ja) into s 16A(2), providing that "the deterrent effect that any sentence or order under consideration may have on other persons" was a relevant factor to be taken into account on sentence.
Notwithstanding the omission of any reference to general deterrence in Part 1B of the Act for a period of more than 15 years, and in the absence of that factor being picked up by any other federal law during the same period, it was accepted that s 16A did not just accommodate, but in fact mandated, that a court sentencing a federal offender take into account that factor. For example, in DPP (Cth) v El Karhani [74] this Court concluded that notwithstanding the absence of any reference to it in s 16A, general deterrence was something that "must be taken into account in determining the sentence to be passed". In doing so, the Court expressly agreed with observations to similar effect made by Hunt J (as his Honour then was in R v Paull. [75]
General deterrence was not the only factor in respect of which this general approach was taken. [76] More recently, in Xiao Bathurst CJ (with whom the other members of the Court agreed) concluded that it was well established that, except to the extent stated in ss 16A and 16B of the Act, and elsewhere in Part 1B, general common law principles (as opposed to peculiarly local or State statutory principles of sentence) will apply to the sentencing a federal offender. [77]
It follows in my view that even though there is no specific reference to delay in Part 1B of the Act, and notwithstanding that it is not a factor which is picked up by any other federal law, it remains a relevant consideration when sentencing a federal offender. I am fortified in that view by the fact that it is a matter which has been taken into account by this Court (albeit in respect of offending of a different kind to that which was committed by the appellant) when sentencing of a federal offender. [78]
The significance of the delay in this particular case is, of course, a separate question, which I will consider after dealing with those specific matters in s 16A which are applicable.

[21]

The need for adequate punishment - s 16A(2)(k)

In a case where there is a multiplicity of offences of this kind, it is important that the task of assessing the nature and circumstances of the offending, and its objective seriousness, is not obscured by adopting what might be described as a "broad brush" approach. It is for that reason that I have set out, in some detail, the circumstances of each individual instance of offending. By reference to those circumstances, the following conclusions can be drawn, all of which inform the nature and circumstances of the offending, and its objective seriousness: 1. the offending took place over a period of approximately 6½ months between January 2011 and July 2011; 2. the appellant, who was then 46 years of age, specifically targeted eight separate victims who were aged between 13 and 15; 3. the offending was carefully planned, the appellant having specifically created two false Facebook accounts for the specific purpose of facilitating his offending; 4. the offending included the appellant: 1. threatening some of his victims with various forms of retribution in the event that they did not comply with his demands; 2. using photographs which he had prised from some of his victims as a form of leverage in an attempt to force their further co-operation; 3. offering some victims money in exchange for sexual favours; 4. on one occasion, sending a victim a photograph of his penis; 5. on another occasion, deliberately and callously ignoring the fact that one of the victims was on the verge of self-harm as a consequence of his conduct.
The appellant's offending was consistent, premediated, disturbingly predatory and unequivocally manipulative. It had the clear potential to do great damage to the victims. The seriousness of such offending, and the associated need to protect young persons from behaviour of this nature, is reflected in the Parliament's prescription of substantial maximum penalties. Courts necessarily have a responsibility to reflect all of those factors by imposing sentences of appropriate severity. [79] Any penalty imposed on the appellant must necessarily reflect the absolute denunciation of such serious and sustained conduct.

[25]

The appellant's cooperation with law enforcement agencies in the investigation of the offence or of other offences - s 16A(2)(h)

I have already set out the nature and extent of the appellant's co-operation with the police at the time of his arrest. Before this Court, the Crown acknowledged that co-operation, but submitted that it had been provided by the appellant in the context of what was a strong Crown case. That submission had something of a circular tendency. Accepting that the Crown case was a strong one, it is open to conclude that it was rendered so at least partly as a consequence of the appellant's co-operation, particularly his decision to provide the police with the passwords to the two Facebook accounts, thus giving police unfettered access to them.
In the course of oral submissions counsel for the appellant made reference to the decision of this Court in Weber v R [82] in which the appellant, who had pleaded guilty to importing a marketable quantity of a border-controlled drug, had assisted the authorities by (inter alia) providing the name of the person who had provided him with the quantity of drug which was the subject of the importation. In addressing the appellant's co-operation, and how it should be taken into account on sentence, I said the following: [83] [67] If a federal offender has co-operated with authorities, he or she is entitled, by virtue of s 16A(2)(h) of the Act, to have that factor taken into account on sentence. There is no fixed tariff to be applied. The usefulness of the co-operation provided will obviously be relevant in considering the nature and extent of the co-operation, and in assessing the quantum of any discount which is to be applied. The absence of evidence establishing the usefulness of the co-operation does not lead to a conclusion that there should be no discount at all, although in such circumstances the discount may be less than would otherwise be the case. [68] Further, as conceded by the Crown before this Court, the scheme of s 16A(2) is such that the plea of guilty, and an offender's co-operation with authorities, are separate and distinct considerations on sentence. The correctness of that approach was recognised by this Court in Valsamakis v R where the application of a separate discount of 5% to reflect the offender's past assistance was regarded as appropriate. [69] In all of these circumstances, I would allow a discount of 5% to reflect the appellant's co-operation with authorities. It follows that the total discount to be applied is one of 30%.
By reference to those passages, counsel for the appellant submitted that "an admission, even a bare admission under the Commonwealth regime, is deserving of some discount." [84]
If, in advancing that submissions, counsel was submitting that such passages stand as authority for the proposition that every form of assistance by a federal offender must result in the application of a specifically quantified discount, that is not a submission that I am prepared to accept. The entitlement of a federal offender in this regard is to have his or her co-operation and assistance taken into account on sentence. How that factor is taken into account may vary according to the circumstances of the particular case. In some instances, it may result in the application of a specifically quantified discount. Weber was such a case. The assistance provided by that offender was quite specific, and of a kind which has generally resulted in a specific discount being applied. But that will not be the position in every case. As I pointed out in Weber, it is not a matter of applying a fixed tariff. The assistance and co-operation of the appellant in the present case was of a completely different kind. As required by s 16A(2)(h) of the Act I have taken the appellant's co-operation and assistance into account, and have done so as part of the general mix of mitigating factors.

[31]

Endnotes

[2015] NSWCCA 90.
[2015] NSWCCA 107.
(2014) 252 CLR 601; [2014] HCA 37.
Aboud v R [2017] NSWCCA 140.
(2018) 96 NSWLR 1; [2018] NSWCCA 4.
Aboud v R [2020] NSWSC 1648.
At [15].
At [16].
Agreed facts at [3]; AB 25-26.
Agreed facts at [4]; AB 26.
AB 6.
AB 5.
Agreed facts at [16]; AB 28. The various messages sent by the appellant in the course of his offending are reproduced in this judgment in the precise terms in which they were sent.
Agreed facts at [17]; AB 28.
Agreed facts at [18]; AB 28.
Agreed facts at [18]; AB 28.
Agreed facts at [18]; AB 28.
Agreed facts at [20]; AB 29.
Agreed facts at [21]-[22]; AB 29.
Agreed facts at [23]; AB 29.
Agreed facts at [24]-[25]; AB 29-30.
Agreed facts at [26]-[27]; AB 30.
Agreed facts at [28]; AB 30.
Agreed facts at [29]; AB 30.
Agreed facts at [30]; AB 30.
Agreed facts at [31]; AB 31.
Agreed facts at [33]; AB 31.
Agreed facts at [34]; AB 31.
Agreed facts at [35]; AB 31.
Agreed facts at [35]; AB 31.
Agreed facts at [36]; AB 31.
Agreed facts at [37]; AB 32.
Agreed facts at [38]-[39]; AB 32.
Agreed facts at [40]-[41]; AB 32.
Agreed facts at [42]; AB 32.
Agreed facts at [44]-[45]; AB 33.
Agreed facts at [46]; AB 33.
Agreed facts at [47]-[48]; AB 33.
Agreed facts at [49]; AB 34.
Agreed facts at [51]-[52]; AB 34.
Agreed facts at [51]-[52]; AB 34.
Agreed facts at [52]-[53]; AB 34.
Agreed facts at [52]-[53]; AB 34.
Agreed facts at [54]; AB 34.
Agreed facts at [55]; AB 35.
Agreed facts at [72]-[73]; AB 37.
Agreed facts at [73]-[74]; AB 37-38.
Agreed facts at [75]; AB 38.
Agreed facts at [76]; AB 38.
Agreed facts at [77]; AB 38.
Agreed facts at [57]; AB 35.
Agreed facts at [58]-[59]; AB 35.
Agreed facts at [60]-[62]; AB 35-36.
Agreed facts at [63]; AB 36.
Agreed facts at [64]-[65]; AB 36.
Agreed facts at [66]-[67]; AB 36.
Agreed facts at [68]; AB 37.
Agreed facts at [69]; AB 37.
Agreed facts at [70]-[71]; AB 37.
AB 9.
AB 9.
AB 64.
AB 4.
AB 12.
(2018) 96 NSWLR 743; [2018] NSWCCA 57.
Per Bathurst CJ at [269]-[278] (with whom the other members of the Court agreed).
[2018] NSWCCA 70; (2018) 272 A Crim R 266.
At [9].
See Schedule 8 of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) which came into force on 20 July 2020.
Agreed facts at [4]-[8]; AB 26-27.
(2017) 94 NSWLR 194; [2017] NSWCCA 42
At [140].
Schedule 7, Part 1(1).
(1990) 21 NSWLR 370 at 377 adopting the observations of Hunt J (as his Honour then was) in R v Paull (1990) 20 NSWLR 427 at 434.
(1990) 20 NSWLR 427 at 434.
See Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 at [18] citing Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [31]; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [15]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [25].
At [94], referring to Johnson and Hili.
See for example R v Gay [2002] NSWCCA 6 at [14]-[17] per Mason P (R S Hulme and Hidden JJ agreeing).
See R v Asplund [2010] NSWCCA 316 at [50]-[51] per McClellan CJ at CL (Latham and Price JJ agreeing); (2010) 216 A Crim R 48.
At [2].
AB 64.
[2020] NSWCCA 103.
At [67]-[69], with the concurrence of Simpson AJA and Rothman J, citations omitted.
At T4.21-T4.22.
As to which see R v Poynder [2007] NSWCCA 157; (2007) 171 A Crim R 544 at 550 per James J (Rothman and Harrison JJ agreeing).
[2015] NSWCCA 38; (2015) 257 A Crim R 33
At [45], Meagher JA and Schmidt J agreeing.
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [59] citing Power v The Queen (1974) 131 CLR 623; [1974] HCA 26.
(1995) 82 A Crim R 50 at 508-509.

Aboud v R

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Catchwords

Judgment (32 paragraphs)

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Legislation Cited (6)

Cases Cited (33)

Cited By (5)