Aboud v R

Solicitors: Legal Aid (NSW) - Appellant Commonwealth Director of Public Prosecutions - Respondent File Number(s): 2015/100797; 2020/247547 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 29 July 2016 Before: Her Honour Judge Wells SC File Number(s): 2015/100797

Judgment

1. 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.
2. 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)
3. 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.
4. 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".
5. 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".
6. 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.
7. 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.
8. 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).
9. 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.
10. 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.
11. 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.
12. Following the imposition of that sentence, the appellant sought leave to appeal. This Court granted leave, but dismissed the appeal. [4]
13. 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.
14. 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).
15. The appellant advanced a single ground of appeal before this Court which is more fully discussed below.

Overview

1. 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]
2. 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]
3. 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.
4. 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".
5. Against that general background, the specific instances of offending can be summarised as follows.

Sequence 1

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
2. The victim did not respond.
3. On 10 February 2011, the appellant again contacted the victim stating: Random....your stunning [14]
4. 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
5. 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
6. 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]
7. 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]
8. 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?
9. 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.
10. The victim ceased contact with the appellant thereafter. [22]
11. 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??
12. 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

Sequence 16

1. 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
2. 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.
3. The appellant then sent a further message: [29] I'd friggin smoke you sooo good
4. 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
5. 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
6. 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
7. 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
8. 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]

Sequence 17

1. The victim of the offending in sequence 17 was aged 15. The appellant asked her to send him sexually suggestive photographs, and threatened to approach her parents if she did not do so. [35] Fearful that her parents would discover her contact with the appellant, the victim sent the appellant two photographs which did not disclose her identity, and which did not exhibit any nudity. Following this, the conversations between the appellant and the victim became (on the appellant's part) sexually explicit. The appellant then threatened the victim that if she did not send him her phone number he would telephone her parents and tell them about the fact that she had sent him photographs, telling her (by reference to the photographs that she had sent him) that he "could do whatever he wanted". [36]
2. The appellant then telephoned the victim and asked her if she would be interested in a "deal", offering to pay for a motel and drinks if she would spend the night with "an older friend of his". The appellant told the victim that he would pay her $500 for the night, and that the more she was willing to do, the more she would be paid. [37] The victim did not respond favourably, following which the appellant continued to contact her, at one point threatening to call her parents and tell them about the content of their conversations. When the victim did not respond, the contact from the appellant ceased for a period of some months. The appellant then resumed contact with the victim, sending her a message stating: [38] i even put you onto that guy that was gunna giv u lots of money

Sequence 18

1. The victim of this offending was 14 years of age. Following initial contact, the appellant commented on the victim's looks by saying: [39] your pretty…u look so damn fine… u look so pretty in your display i wanna see more
2. The appellant told the victim that he was 25 years of age and continued to flatter her before asking for photographs of herself. Shortly thereafter, the appellant told the victim that he had previously offered a girl money to have sexual intercourse with a friend, and that it was safe to have sexual intercourse with him. [40] When the victim told the appellant she was 15 years of age, the appellant replied: [41] no 1 is gunna know
3. The appellant continued to explain the scenario to the victim before asking her questions about the extent of her sexual experience. He then offered her $500.00 in exchange for his "friend" spending the night with her. The victim declined. [42] The appellant then asked the victim to send him a "naughty" photograph, a request which she similarly declined. He then began to describe engaging in sexual encounters with virgins, and asked the victim to imagine herself in various sexual positions with him, before asking for permission to phone her and to meet up with her. [43] When the victim agreed to meet with the appellant, the following exchange took place between them: [44] Appellant: ok when then? U said i can fuck u hey? Haha. Victim: yer do you u care how old i am? Appellant: no, y
4. The conversation then continued, the appellant pressing the victim to allow his "friend" to contact her, following which the victim asked the appellant what his (i.e. the friend's) name was. The appellant responded: [45] mick a bowdy search that and send him a hello msg
5. The contact between the appellant and victim ceased shortly thereafter.

Sequence 20

1. The victim of this offending was 14 years of age. Upon making initial contact, the appellant told the victim that he was 25 years of age, following which the victim immediately told the appellant that she was 14. The appellant responded by commenting that it was "no wonder guys get locked up". [46]
2. Within 30 minutes of this conversation, the appellant said that he had previously been chatting to a girl to whom he had offered money for sexual intercourse with a friend. At that point the victim told the appellant that she did not wish to speak to him any longer, and that she was not interested in any sexual conversation. Notwithstanding this, the appellant continued to try and elicit conversation of a sexual nature from the victim, [47] telling her at one point: [48] what's wrong with telling you i'd fuck you if i had the chance
3. The appellant then suggested a scenario to the victim which involved two young girls who needed money, and went on to describe how a girl had made $300.00 in return for spending one night in a motel with his "friend". The appellant stipulated that the girl had to do "stuff with him", [49] before elaborating further: [50] did i mention ya hav to blow him and let him lick u, and of course fuck a few times
4. The contact between the appellant and the victim ceased shortly thereafter.

Sequence 21

1. 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]
2. 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]
3. 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]
4. 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]
5. 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]
6. 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]
7. 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
8. 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]

The appellant's subjective case

1. The appellant had no criminal history and was married at the time of his offending. [60] The sentencing judge found [61] that he had a good employment history.
2. Prior to being sentenced, the appellant had been referred to Shane Flaherty, Psychologist, for treatment and attended 5 sessions of psychotherapy. Mr Flaherty provided a report [62] in which he stated that the appellant had exhibited symptoms consistent with a major depressive episode arising from his offending. Mr Flaherty said that the appellant had expressed both remorse for his offending and concern for the victims, and had developed some insight into his offending. He also said: Most importantly however he himself appears to have been a victim of the internet process where persons can remain detached from thier [sic] behaviours and engage in behaviours that are not considered nor are socaiIly [sic] appropriate.
3. Mr Flaherty expressed the view that the appellant had commenced to develop an insight into the dangers of inappropriate Internet behaviour.

In determining the appropriate discount to reflect the value of the plea of guilty, the sentencing judge did not have regard to the utilitarian value of the plea

The reasons of the sentencing judge

1. At the commencement of her reasons, the sentencing judge noted that the appellant had entered pleas of guilty in the Local Court and said: [63] [The pleas of guilty] are early pleas of guilty that will attract a discount and will be taken into account in his favour as expressions of remorse.
2. Subsequently, her Honour said: [64] I accept that he has shown a level of contrition by his early pleas of guilty and that negotiations for facts were finalised at an early stage, no doubt putting at rest the minds of the complainants. However it must also be observed that he had little option. The electronic evidence that the police had was very damning.

Submissions of the appellant

1. Counsel for the appellant submitted that in light of the decision of this Court in Xiao, as well as the subsequent decision in Huang v R [65] (both of which were delivered after the appellant had been sentenced) her Honour had erred in the manner in which she had dealt with the appellant's pleas of guilty. In particular, counsel submitted that although her Honour had taken into account those pleas as evidence of remorse, she had not specifically quantified the discount which she had applied and in any event had failed to assess, and apply a discount for, the utilitarian values of those pleas.
2. Counsel for the appellant submitted that these errors had given rise to a number of further errors in the manner in which her Honour had addressed the appellant's pleas of guilty. In view of the position taken by the Crown as to the ground of appeal, it is unnecessary to address these asserted errors any further.

Submissions of the Crown

1. The Crown conceded that the sentencing judge had erred in the manner in which she had approached the assessment of the appellant's pleas of guilty by (inter alia) failing to have regard to the utilitarian value of those pleas.

Consideration

1. 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]
2. 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.
3. 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.
4. 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.
5. 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.

Submissions of the appellant

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. In advancing all of these submissions, counsel for the appellant expressly acknowledged the objective seriousness of the offending.

Submissions of the Crown

1. The Crown emphasised that the offending had occurred over a period of 6½ months, that it had been planned, and that the communications in which the appellant had engaged had involved a persistent, and sexually explicit, theme. The Crown further submitted that the offending was premeditated and had been motivated by a desire for sexual gratification, emphasising that the appellant's modus operandi involved a mixture of flattery and bribery directed towards a total of eight victims who were variously aged between 13 and 15.
2. The Crown acknowledged the considerable delay between the time of the appellant's interview by police and the time of his being charged, and accepted that no part of that delay was attributable to the appellant. However, the Crown submitted that the only relevance of that delay in the present case was that there was an absence of offending during that period, although it was accepted that such absence of offending was a factor which supported a conclusion that the appellant's prospects of rehabilitation were favourable. The Crown specifically submitted that in circumstances where the appellant did not give evidence on sentence, it could not be presumed that the delay had had any adverse effect on him, psychologically or otherwise.
3. Whilst the Crown acknowledged the appellant's co-operation with police, it was submitted that an assessment of that co-operation was to be made having regard to all of the circumstances. The Crown submitted that those circumstances involved, importantly, the fact that the prosecution case was strong.
4. In all of the circumstances, and notwithstanding the error which was conceded, the Crown submitted that no lesser sentence than that imposed by the sentencing judge was warranted.

CONSIDERATION

1. 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.
2. 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) ……..
3. 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).
4. 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.
5. 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.
6. 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.
7. 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]
8. 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]
9. 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]
10. 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.

The nature and circumstances of the offence - s 16A(2)(a)

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

1. 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.
2. 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.

The appellant's course of conduct - s 16A(2)(c)

1. The appellant's offending constituted a sustained course of conduct which took place over a period of 6½ months. It was not, in any sense, spontaneous.

The appellant's pleas of guilty - s 16A(2)(g)

1. I have already noted that there is no dispute that the appellant pleaded guilty when the charges were before the Local Court. Bearing in mind the decision in Xiao, those pleas have obvious utilitarian value. In particular, the appellant's decision to enter pleas of guilty at an early stage the necessity for any of the victims of the offending to give evidence. In my view, taking into account the utilitarian value of the pleas, the appropriate discount is one of 25%.

The appellant's contrition - s 16A(2)(f)

1. The report of Mr Flaherty to which I previously referred made specific reference to the fact that the appellant had demonstrated remorse for his actions and had expressed concern for the victims of his offending. In an affidavit of 1 June 2017 which was before this Court on the hearing of the previous application for leave to appeal against sentence, the appellant made reference to the fact that since being taken into custody he had continued to reflect on his offending which he described as "selfish and odious", expressing a realisation of the wrongfulness of his actions, and the hope that the victims had not suffered any lasting damage. [80] There is nothing to suggest that these views have changed. In all of these circumstances, I am satisfied that the appellant is genuinely remorseful for his offending.
2. I should, however, make it clear that I unequivocally reject Mr Flaherty's opinion that the appellant "appears to have been a victim of the internet process where persons can remain detached from thier [sic] behaviours and engage in behaviours that are not considered nor are socailly [sic] appropriate". [81] The appellant is not a victim in any sense. To suggest that he is, reflects a fundamental misunderstanding of the nature and seriousness of his offending.

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

1. 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.
2. 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%.
3. 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]
4. 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.

General deterrence - s 16A(2)(ja)

1. The appellant's expressions of insight into his offending are such that there does not appear to be any significant need for personal deterrence. There is, however, a clear need for any sentence to incorporate a measure of general deterrence. [85]

The character, antecedents, cultural background, means and physical or mental condition of the offender - s 16A(2)(m)

1. The appellant is presently 56 years of age and is a person of no prior convictions. Documents tendered before the sentencing judge confirmed his employment prior to being taken into custody, and the fact that he had been engaged in surf lifesaving in the community for a consistent period up until the time of his arrest.

The appellant's prospects of rehabilitation - s 16A(2)(n)

1. It is evident from the appellant's most recent affidavit that he has used his time in custody productively. Apart from two relatively minor disciplinary matters, he has not come under notice for any significant issues since being sentenced. He has been employed in custody, most recently as a storeman, which appears to be a position of some trust. The appellant has indicated that upon release he intends to obtain employment doing driving and delivery work.
2. The appellant has also completed a number of vocational courses connected with his work, although he has been informed that he is not eligible for the sex offender program. Why that is the case has not been explained. Various documents annexed to the affidavit of Mr Eccleshall make reference to the appellant being polite, punctual and respectful in all of his dealings with staff and inmates.
3. In all of these circumstances, I'm satisfied that the appellant has good prospects of rehabilitation. Given his insight, I also consider that he is unlikely to reoffend.

Delay

1. In Sabra v R [86] I considered a number of authorities in which the effect of delay had been considered, before concluding: [87] Delay which is not attributable to an offender may be relevant on sentence at a number of different levels. Ordinarily, such delay will be a mitigating factor if (as in the present case) it has resulted in significant stress to the offender, or has left him or her, to a significant degree, in a state of uncertain suspense. Where there is evidence that delay has led to consequences being visited upon an offender which are adverse to his or her circumstances and which are over and above stress and anxiety, be those consequences in the nature of interrupted rehabilitation or otherwise, then the weight to be given to such delay in the sentencing process will obviously be greater. But that is not to say that an offender must be able to establish consequences of that kind before delay can become relevant at all. To so conclude would be contrary to the weight of previous authority in this Court.
2. The delay in the present case between the appellant's interview with police and the bringing of charges was approximately four years. Whilst the reasons for it are entirely unexplained, it is clear that it was not the fault of the appellant. There is no evidence of any stress visited upon the appellant as a consequence of the delay, nor is there any evidence that it resulted in his rehabilitation being interrupted in any way. Its principal, and perhaps only, relevance in the present case is that the appellant did not offend during that four year period. That is a factor which I have taken into account. It provides further support for my conclusion as to the appellant's prospects of rehabilitation.

CONCLUSION

1. Having regard to all of the factors to which I have referred, and even when full weight is given to the mitigating factors, the objective seriousness of the appellant's offending is such that in my view, no lesser sentence is warranted and should have been passed. In particular, the non-parole period which was imposed reflects the minimum period of actual incarceration which is warranted having regard to all of the circumstances of the case, including the need for rehabilitation. [88]
2. I propose the following order: 1. Appeal dismissed.
3. WILSON J: I have had the opportunity to read the judgment of Bellew J in draft, and agree with it. I agree with his Honour's analysis of the non-exhaustive application of s 16A of the Act, and that delay, of itself, is not necessarily a mitigating factor on sentence, for the reasons identified by his Honour. There was no evidence in this instance that the appellant had suffered any adverse consequence by reason of the outstanding allegation "hanging over his head", to adopt the phrase used in Holyoak v R. [89]
4. I too have concluded that no lesser sentence is warranted in this matter.

Endnotes

1. [2015] NSWCCA 90.
2. [2015] NSWCCA 107.
3. (2014) 252 CLR 601; [2014] HCA 37.
4. Aboud v R [2017] NSWCCA 140.
5. (2018) 96 NSWLR 1; [2018] NSWCCA 4.
6. Aboud v R [2020] NSWSC 1648.
7. At [15].
8. At [16].
9. Agreed facts at [3]; AB 25-26.
10. Agreed facts at [4]; AB 26.
11. AB 6.
12. AB 5.
13. 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.
14. Agreed facts at [17]; AB 28.
15. Agreed facts at [18]; AB 28.
16. Agreed facts at [18]; AB 28.
17. Agreed facts at [18]; AB 28.
18. Agreed facts at [20]; AB 29.
19. Agreed facts at [21]-[22]; AB 29.
20. Agreed facts at [23]; AB 29.
21. Agreed facts at [24]-[25]; AB 29-30.
22. Agreed facts at [26]-[27]; AB 30.
23. Agreed facts at [28]; AB 30.
24. Agreed facts at [29]; AB 30.
25. Agreed facts at [30]; AB 30.
26. Agreed facts at [31]; AB 31.
27. Agreed facts at [33]; AB 31.
28. Agreed facts at [34]; AB 31.
29. Agreed facts at [35]; AB 31.
30. Agreed facts at [35]; AB 31.
31. Agreed facts at [36]; AB 31.
32. Agreed facts at [37]; AB 32.
33. Agreed facts at [38]-[39]; AB 32.
34. Agreed facts at [40]-[41]; AB 32.
35. Agreed facts at [42]; AB 32.
36. Agreed facts at [44]-[45]; AB 33.
37. Agreed facts at [46]; AB 33.
38. Agreed facts at [47]-[48]; AB 33.
39. Agreed facts at [49]; AB 34.
40. Agreed facts at [51]-[52]; AB 34.
41. Agreed facts at [51]-[52]; AB 34.
42. Agreed facts at [52]-[53]; AB 34.
43. Agreed facts at [52]-[53]; AB 34.
44. Agreed facts at [54]; AB 34.
45. Agreed facts at [55]; AB 35.
46. Agreed facts at [72]-[73]; AB 37.
47. Agreed facts at [73]-[74]; AB 37-38.
48. Agreed facts at [75]; AB 38.
49. Agreed facts at [76]; AB 38.
50. Agreed facts at [77]; AB 38.
51. Agreed facts at [57]; AB 35.
52. Agreed facts at [58]-[59]; AB 35.
53. Agreed facts at [60]-[62]; AB 35-36.
54. Agreed facts at [63]; AB 36.
55. Agreed facts at [64]-[65]; AB 36.
56. Agreed facts at [66]-[67]; AB 36.
57. Agreed facts at [68]; AB 37.
58. Agreed facts at [69]; AB 37.
59. Agreed facts at [70]-[71]; AB 37.
60. AB 9.
61. AB 9.
62. AB 64.
63. AB 4.
64. AB 12.
65. (2018) 96 NSWLR 743; [2018] NSWCCA 57.
66. Per Bathurst CJ at [269]-[278] (with whom the other members of the Court agreed).
67. [2018] NSWCCA 70; (2018) 272 A Crim R 266.
68. At [9].
69. 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.
70. Agreed facts at [4]-[8]; AB 26-27.
71. (2017) 94 NSWLR 194; [2017] NSWCCA 42
72. At [140].
73. Schedule 7, Part 1(1).
74. (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.
75. (1990) 20 NSWLR 427 at 434.
76. 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].
77. At [94], referring to Johnson and Hili.
78. See for example R v Gay [2002] NSWCCA 6 at [14]-[17] per Mason P (R S Hulme and Hidden JJ agreeing).
79. 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.
80. At [2].
81. AB 64.
82. [2020] NSWCCA 103.
83. At [67]-[69], with the concurrence of Simpson AJA and Rothman J, citations omitted.
84. At T4.21-T4.22.
85. 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).
86. [2015] NSWCCA 38; (2015) 257 A Crim R 33
87. At [45], Meagher JA and Schmidt J agreeing.
88. R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [59] citing Power v The Queen (1974) 131 CLR 623; [1974] HCA 26.
89. (1995) 82 A Crim R 50 at 508-509.

Amendments 29 April 2021 - Orders amended by deleting order granting leave to appeal DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2021