DPP(Cth) v COLAIACOVO

District Court of NSW|2021-04-29

Judgment

The offender appeared before a Magistrate at the Wagga Wagga Local Court on 1 February 2021 and pleaded guilty to two charges, namely: 1. That (he) being at least 18 years of age, did between 23 September 2019 and 25 September 2019 at Wagga Wagga in New South Wales, use a carriage service to transmit indecent material to a person under the age of 16 years, namely 14 years, contrary to s 474.27A(1) of the Criminal Code 1995 (Cth); and 2. That (he) between 23 September 2019 and 29 September 2019 at Wagga Wagga in New South Wales did use a carriage service to solicit material and that material is child abuse material, contrary to s 474.22(1) of the Criminal Code 1995 (Cth).
The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 15 April 2021. Noting the plea was entered in the Local Court and noting the provisions of s 16A(2)(g) of the Crimes Act 1914 (Cth) I allow a numerical discount of 25% for the offender's facilitating the course of justice including the utilitarian value of the pleas of guilty.
For the sake of convenience I will refer throughout these remarks to the first offence as the transmission offence and the second offence as the solicit offence. The maximum penalty for the transmission offence is 7 years imprisonment and/or a fine of 420 penalty units. The maximum penalty for the solicit offence is 15 years imprisonment and/or 900 penalty units.

Count 1 - Transmission offence

On 19 September 2019 the offender using the online identity "J C-cappa42" entered into an online conversation with the AOI via KiK and greetings were exchanged. Communications were resumed on 23 September 2019 when the offender inquired of the AOI, "What you looking for here". The AOI replied, "I'm not on much friends r on it so I joined too" to which the offender replied, "Well I be your friend like get to know you". The offender and AOI exchanged messages and the accused sent a photograph of his pet husky dog then a photograph of his face and then a further photograph showing his naked torso.
The offender and the AOI discussed the AOI sending a photograph of herself with the AOI asking the accused why she should send a photograph of herself. The offender responded, "Maybe cause your hot beautiful" and "Yeah love to see more". The AOI sent a non-explicit photograph to the offender to which the offender responded, "Wow that you like beautiful definitely hot as fuck".
The offender became more sexually explicit. The offender asked the AOI if she had had sex. The AOI responded that she was only 14 to which the offender responded, "Oh, OK yeah well I know a few that have at 14 trust me not a big thing now days like everyone doing it" and "Like hell some 14 seen a lot of dick and porno haha".
The offender asked if the AOI had seen a penis to which the AOI replied, "Not in real life". The offender stated, "can change that prob should haha", "You should seen one that good size so don't get a fucked one haha" and asked if the AOI wanted to see one. The offender sent two photographs of himself showing his erect penis. The offender asked if the AOI had ever seen a penis ejaculate. The offender then sent the AOI a video of himself laying on a bed naked masturbating to ejaculation and a message stating "Enjoy".

Count 2 - Solicit offence

After sending the video to the AOI the offender asked the AOI if the video was a "turn on??" and whether she was "getting horny??", "Like wet". The AOI responded that she did not know what the offender meant to which he replied, "You feel like playing with yourself" and asked the AOI if she had done that before.
The offender encouraged the AOI to masturbate and started instructing the AOI how. The AOI stated that she could not because her mum was at home. The offender instructed the AOI on ways to avoid her mum discovering what she was doing. The offender requested the AOI show him what she was doing and pressured the AOI to do so when she declined: Offender: Show me tell you if you doing it right AOI: Im not doing that soz Offender: Come on I show you . I'm only one see AOI: I don't know u Offender: That what makes it even better As then if we not friends nothing lost AOI: Lol it's all a bit much tbh Offender: Just relax lay down put your hand down there ok Trust me enjoy it AOI: Ok but I'm (n)ot sending pics Offender: Ok not know but you laying down
The conversation continued with the offender instructing the AOI how to masturbate. The conversation ceased when the AOI indicated she had to go.
The offender sent a series of messages to the AOI via Kik later the same day and in the early hours of 24 September 2019 referring to the AOI as "beautiful", "gorgeous" and "definitely one of the sexiest teen I seen".
The offender continued to message the AOI on 24 September 2019 via KiK. When the AOI did not respond the offender asked what was wrong and said that he thought they were friends. The AOI told the offender that the previous day "was all a bit much" to which the offender replied, "Ok well we go slow and talk more and you can get to know me better". The offender told the AOI that his name was James.
Between 24 and 27 September 2019 the offender and the AOI continued to exchange messages on Kik. On 24 September 2019 the offender confirmed he lived in Wagga Wagga and indicated that he was 5 hours away and was "not really" that far from the AOI. Shortly after the offender asked the AOI, "starting to like me" and told the AOI that "I maybe like you".
On 27 September 2019 the offender asked the AOI if she had "snapchat or something" in case Kik was shut down. The AOI indicated she had "WhatsApp" and provided her contact information. The communication then moved to the social networking application "WhatsApp" where the offender used the service number 0456 179 162.
Between 27 September 2019 and 29 September 2019 the offender and AOI continued to exchange messages on "WhatsApp". On 27 September 2019 the AOI asked the offender for his surname to add to her contacts. On 28 September 2019 the offender asked the AOI if she had any more pictures.

Arrest

On 26 May 2020 Police were granted a search warrant in respect of the offender's residential address in Wagga Wagga. Police attended the offender's residence on 27 May 2020. Police located in the back yard a husky dog matching the image of a dog sent by the offender to the AOI. Police also located several items in the offender's residence that were depicted in the images sent by the offender to the AOI. The offender admitted his mobile phone number was 0456 179 162.

Assessment

Going initially to count 1 the offender sent two photographs of his erect penis and one video of an unspecified duration showing him masturbating to ejaculation. These photographs and the video were sent within a relatively short period of time. The AOI was not a real child. This does not make the conduct less serious; rather, it would be more serious if a real child was involved. That also applies to count 2. The offender was 34 and accordingly the age difference was 20 years. The photographs and particularly the video were followed up by further chats on the social media platform.
Ms Thampapillai submitted in her written submissions (MFI 1 on sentence) that the criminality in respect of the solicit offence involves the offender instructing the AOI on masturbation. The Commonwealth submitted orally that there was a degree of specificity about what was solicited and what was solicited would have been new material. There is substance to the submissions from the Commonwealth. There is also substance to the Commonwealth's submission that in respect of the transmission offence the material transmitted was also explicit.
There was indicated reluctance by the AOI to be involved in the conduct. The offender was persistent and the conversations on the social media platforms continued over a few days. The conduct was not spontaneous or opportunistic.
The Commonwealth submitted that both offences are serious examples of the offending contemplated by the legislation. Ms Thampapillai submitted (paragraph 9 MFI 1 on sentence) that the offending "falls towards the lower end of the hypothetical range of objective seriousness".
Given the facts and the matters to which I have just referred I find that the transmission offence is mid-range but that the solicit offence is below mid-range but not significantly so.
I have set out the facts and made findings as to the seriousness of the two offences which deals with the nature and circumstances of the offence as required by s 16A(2)(a) of the Crimes Act.
I now go to ss 16A(2)(b) and (c) of the Crimes Act. There are no other offences required or permitted to be taken into account. Both offences involved a number of communications. That has been amply set out in the facts and taken into account in determining the seriousness of both matters. I am not of the opinion that the offences form part of a course of conduct for the purposes of s 16A(2)(c).
Sections 16A(2)(d), (e) and (ea) are not relevant considerations in this matter.

Criminal History

The offender was born on 2 November 1984 and accordingly was 34 years of age at the time of offending and is 36 at the time of sentence. His record is limited to two matters of Driving while Suspended and two regulatory driving offences. In the context of the offending in the matter presently under consideration the matters on the offender's record are of little moment. Although not a person of prior good character the offender must receive substantial consideration for his very limited record.

General Deterrence

Both parties but particularly the Commonwealth devoted considerable time at the sentence hearing to the issue of general deterrence. I note s 16A(2)(j) and (ja) of the Crimes Act. The Commonwealth's primary submission on this issue was that general deterrence is the paramount consideration. One of the authorities relied upon in this regard is R v Porte [2015] NSWCCA 174. In that decision Johnson J (Leeming JA, Beech-Jones J agreeing) said at [70]: "In an extract cited frequently in later decisions, Simpson J (as her Honour then was) (with the agreement of McClellan CJ at CL and Howie J), encapsulated in R v Booth at [39]-[44], the particular vice of child pornography offences and the sentencing principles which have been deployed as a response by the Courts: '[39] A number of previous decisions of this and other appellate courts have found that, in respect of offences of child pornography, general deterrence is, at least, a significant element of the sentencing process: R v Gent; Assheton v R [2002] WASCA 209; 132 A Crim R 237; Mouscas v R [2008] NSWCCA 181. In Assheton, indeed, general deterrence was said to be 'the paramount consideration'. This view was endorsed in Gent. [40] I would add my further endorsement to that view. It seems to me that possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime. [41] In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material. [42] What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes. [43] And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material. [44] It is for that reason that this is a crime in respect of which general deterrence is of particular significance."
Johnson J went on to say at [72]: "Citing this passage from R v Booth, it has been said that, given the predominance of general deterrence and denunciation in the sentencing process for offences of this type, rehabilitation may have reduced significance, with the weight to be attributed to rehabilitation depending upon the seriousness of the particular offence: Mizzi, Gotsis and Poletti, "Sentencing Offenders Convicted of Child Pornography and Child Abuse Material Offences", paragraph 2.4."
The offending in Porte included Possession of Child Abuse Material (which in respect of one charge included a total of 34,143 items which included 2,260 videos), Using a Carriage Service to Access Child Pornography Material and Possession of a Prohibited Weapon.
At paragraph 40 of the written submissions the Commonwealth's representative refers to the decision of EG v R [2015] NSWCCA 21 where Hoeben CJ at CL (Harrison and Hulme JJ agreeing) said at [42]: "General deterrence, denunciation and the protection of the community are principles of sentencing which are relevant to cases involving child sexual abuse. The concern of the courts is to send a message to those who would sexually abuse children intentionally and repeatedly that their actions will not be tolerated and that they will receive significant punishment…"
However, that was a case involving the commission of a sexual offence on an infant. Further, after the part of [42] extracted in the Commonwealth's submissions the paragraph continues with the following: "…In this case, the applicant's mental condition and his inability to explain or understand his actions (which her Honour accepted) meant that general deterrence had little part to play in his punishment. Similarly, the one-off nature of the offending and the very high unlikelihood of him re-offending meant that specific deterrence and protection of the community were not significant issues".
In the circumstances, that is not a particularly helpful authority.
However, at the sentence hearing I mentioned the decision of R v De Leeuw [2015] NSWCCA 183. Johnson J in that decision said at [72h]: "There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market: R v Jones at 52 [9]; DPP (Cth) v D'Alessandro at 484 [23]."
At [72c] his Honour said "General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]-[36]; DPP (Cth) v D'Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34]."
Earlier, McClellan CJ at CL (Latham & Price JJ agreeing) in R v Asplund [2010] NSWCCA 316 at [50] said: "The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity."
It would seem that the same general principles that apply to child pornography type offences apply to the other criminality for which the offender appears for sentence - see for e.g. R v Gajjar (2008) 192 A Crim R 76. That matter involved an appeal against a sentence of custody by the offender in respect of offending which is known or referred to as "grooming". At the appeal issue was taken with a statement made by the sentencing judge at first instance, namely: "…grooming offences fall into a class of offending where general deterrence takes precedence as a sentencing consideration".
At [25]-[27] of the Court of Appeal's decision the Court (Maxwell P, Nettle JA (as his Honour then was) and Weinberg JA) said: "It was contended that there were three separate errors in this statement of principle. First the authorities upon which her Honour relied did not support the stated conclusion. Second, there was no reason why good character and lack of prior convictions should be of less weight in offences of this nature than in offences of any other kind. Third, it was wrong to give less weight to such factors merely because general deterrence was to be regarded as a primary consideration. In our view, there was no error in what the sentencing judge said. The appellant's prior good character was, of course, relevant to sentence. Section 16A(2)(m) of the Crimes Act makes that abundantly plain. However in cases of procuring for sexual purposes contrary to s 474.26(1) (of the Criminal Code 1995 (Cth)) it is clearly appropriate in our view to give paramount consideration to the principle of general deterrence. It follows from that proposition that it must be open to a sentencing judge to give less weight to prior good character in such cases than it might otherwise bear."
The Commonwealth submitted (paragraph 39 written submissions) that the type of offending for which the offender appears for sentence is "difficult to detect given the anonymity provided by the internet (and arguably more so with social networking applications like Kik and WhatsApp; the former preserves anonymity as it does not required telephone or email details from users and the latter can feature end-to-end encryption)". I accept the submission about the offending being difficult to detect. However, some of the submissions made about the nature of the platforms includes material not contained in the material before me.
The solicitor for the offender submitted - at least as I understood the submission - that the principle as stated in Porte that general deterrence is a paramount consideration should be limited to matters involving the possession of child abuse material. The offences of possession of such material and soliciting such materials are very much alike. If the soliciting of the material is successful the person so soliciting the material will be in possession of that material. Clearly enough, the public policy behind the fact of the significance of general deterrence when dealing with this type of offending is the protection of children.
One issue is very plain: the appellate courts in all Australian jurisdictions have made it plain that general deterrence is a very significant consideration in sentencing for offences involving child abuse material. I note in the recent decision of Huggett v R [2021] NSWCCA 62 Johnson J at [51] noted the importance of general deterrence. Johnson J then recited what his Honour Judge Bennett SC said at first instance in R v Huggett [2020] NSWDC 117 at [95], namely: "General deterrence has a significant if not primary role to play in child pornography offences. I am reminded that this occurs at an international level. It is increasingly prevalent unfortunately, with the advent of technology and it is challenging when attempts are made to interdict or detect the perpetrators. There is a market created by such as the offender and the public interest in promoting the protection of children, wherever they are in the world, is of paramount consideration, a proposition with which I agree."
With unfeigned respect I respectfully agree with and endorse the comments by my colleague Judge Bennett SC. General deterrence has a significant if not primary role to play when sentencing for the offending under consideration in this matter.
There is also an issue of specific deterrence with matters such as under consideration in this matter. However given my findings as to the likelihood of the offender re-offending and his prospects of rehabilitation I accept that it has little work to do in this matter. Ms Thampapillai refers to specific deterrence at paragraph 14 of her submissions (MFI 1 on sentence) and cites the authority of RCW v R (No 2) [2014] NSWCCA 190. That was a decision involving drug importation. Hulme J (Bathurst CJ agreeing, Adams J coming to a different conclusion on resentencing) said at [58]: "Specific deterrence is one of the important purposes of sentencing. Often it is necessary for some weight to be given to it but not in every case. In my view, it warranted no weight at all in the present case. And in this case it was open to find that the applicant was unlikely to re-offend and had good prospects of rehabilitation."

Section 16A(1) Crimes Act 1914 (Cth)

I note that section 16A(1) of the Crimes Act 1914 (Cth) provides: "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."

Subjective material

The offender did not give evidence but a volume of subjective material was tendered. Exhibit 1 on sentence is a report by Mr Patrick Sheehan, Psychologist and exhibit 2 on sentence comprises of a testimonial references. I will initially deal with Mr Sheehan's report.
The offender appeared to Mr Sheehan to be within the average range of intellectual functioning although there was no formal testing. The offender was born in Mildura and was raised in Wagga Wagga by an aboriginal mother and an Italian father. There are no issues so far as his upbringing or formative years are concerned. There was no report of domestic violence or substance abuse issues within the household. The offender attended local schools in Wagga Wagga and completed Year 12. He has been gainfully employed in a number of industries but he told Mr Sheehan that his employment history lacked direction because he never really knew what he wanted to do.
The offender denied any serious problems with social development and being involved in sport. He reported some periods of feeling socially alienated and this was the case at the time the offences were committed. Since the offending he has become heavily involved in "Crossfit" which has apparently assisted him to regain a sense of inclusion and connection. He has never married but has had a number of short term relationships. From one of those relationships he has a 9 year old son of whom he has what is described in the report as "fortnightly care". The offender reported being insecure in relationships.
At paragraph 11 of the report the following appears: "…He could not account for his behaviour in the current offence matters other than to point towards the ambiguity of online sexual encounters. He did report having turned towards online sexual chatting and exchange of sexual images over the year preceding the offences. These exchanges were impersonal with no emotional investment but were appealing to Mr Colaiacovo due to the lack of emotional risk. The behaviour became habitual and was undertaken every day. It was through this activity that Mr Colaiacovo came to engage in the current offences".
The current offences are not associated with use or abuse of alcohol or substances. The offender reported an unremarkable health history. There were apparently no childhood psychiatric disorders. The offender had been a victim of a violent attack in 2014 and he described symptoms in keeping with post-traumatic stress disorder. However Mr Sheehan concluded (paragraph 14) that he did not believe that the offender could be considered mood disordered at the present time.
At paragraph 15 Mr Sheehan opines: "Mr Colaiacovo's current offences are an example of disordered sexual behaviour. However, the nature of the offences (being an AOI aged 14 years) and the brief duration of the offences do not warrant a diagnosis of paraphilic disorder".
Mr Sheehan goes on to commence (paragraph 16) that there are no compelling indicators of personality disorder although the offender's history of relationship anxiety and low independence do point towards personality vulnerabilities of an avoidant/dependent nature. Further, there were no indications of antisocial personality disorder.
At paragraph 18 of the report Mr Sheehan sets out a number of statements made by the offender. The offender "explained" that his offences had stemmed from a period of heavy use of online forms of sexual communication, where boundaries were blurred and participants often misrepresented themselves. The offender "like many men charged with these types of offences…felt at the time that his online behaviour had no consequences and was not connected to the real world". He "reported having upheld a belief that the AOI was not who they claimed to be, allowing him to frame the activity as fantasy that was not harmful". He denied having specifically sought on online identity of an underage girl. The offender however acknowledged that his assumptions had been highly reckless and he said, "I could have really damaged someone. I feel embarrassed and shitty about it. I never thought I'd do that to someone". The offender told Mr Sheehan that he has learnt to meet people the "old school way" and he will not go back to social media.
Mr Sheehan goes on to opine (paragraph 23) that the offender's primary treatment target relates to improving emotional resilience and habituating himself to the uncertainty of relationships by increasing real life social engagement.
The offender is assessed by Mr Sheehan to be in the "average risk" category for sexual re-offending when considered against actuarial factors (Static 99R) but overall his risk of sexually re-offending to be in the low average range.
Both parties made submissions as to the contents of Mr Sheehan's report, which submissions I will deal with shortly.
The Court is also assisted by a Sentence Assessment Report (SAR) under the hand of Sally Witenden dated 14 April 2021. The report notes (p 2) that the offender attempted to minimise his actions by way of claiming he believed it was only a fantasy based web site, not real interactions with a 14 year old female.
The SAR goes on to record that the offender stated that his behaviour "was very wrong and is disgusted in himself, advising he would be horrified if someone treated a young female member of his family in this way". The offender was assessed by the author of the report of being a medium risk of re-offending.
Annexed to the SAR is the Psychological Pre Sentence Consultation for Sexual Offender Background to Referral report. That report is completed without an interview with the offender from the documents on file. The offender was assessed as being at an average risk of re-offending.

Submissions

I will also deal with the requirements of s 16A of the Crimes Act when dealing with the submissions. At paragraph 13 of her submissions Ms Thampapillai submits that the offender has expressed insight into his offending and that it would be open to the court to find that the offender has insight into the seriousness of the offending and that he is genuinely remorseful.
The expressions of remorse are entirely untested, which no doubt led the Commonwealth to remind the court of the decision of Imbornone v R [2017] NSWCCA 144 especially at [57] per Wilson J (Hoeben CJ at CL, Hulme J agreeing). I accept that it is open to the court to find remorse without the offender giving evidence - see Butters v R [2010] NSWCCA 1 at [17] per Fullerton J.
Clearly enough when the report of Mr Sheehan and the SAR are taken together the offender has some insight into his offending. In particular I refer to that part of Mr Sheehan's report at paragraph 18 where he recounts the offender saying, "I could have really damaged someone. I feel embarrassed and shitty about it. I never thought I'd do that to someone". I also note that part of the SAR (p 2) where the offender said to the author that he would be horrified if someone treated a young female member of his family in this way.
However, the SAR also notes that the offender attempted to minimise his actions by way of claiming he believed it was only a fantasy based website. Mr Sheehan a little earlier at paragraph 18 of his report noted that, "like many men charged with these types of offences Mr Colaiacovo said that he felt at the time that his online behaviour had no consequences and was not connected to the real world".
The offender has some insight into the offending and is contrite (I use that word noting s 16A(2)(f) of the Crimes Act) to an extent. However given that the expressions of remorse and contrition are untested and the parts of the SAR and Mr Sheehan's report to which I have referred in the paragraph immediately above I am not prepared to give the issue of contrition a great deal of weight.
It is put on behalf of the offender that he has strong prospects of rehabilitation. The finding as to the likelihood of the offender re-offending is a relevant consideration. The reference from Michael McManus within exhibit 2 sets out that the offender is employed at a local motel on a casual basis and speaks well of the offender's work ethic.
The offender has some insight. He is able to be employed and apparently has a good work ethic. He has a limited record. I am prepared to find on balance that the offender has good prospects of rehabilitation (s 16A(2)(n) Crimes Act) and that he is unlikely to re-offend.
It seems that I have dealt with the matters set out in s 16A(2)(m) of the Crimes Act by dealing with the criminal history and the subjective factors relative to the offender. I have spent some time detailing the report of Mr Sheehan. No submission is put as to the effect of any sentence on any of the offender's family or dependents (s 16A(2)(p) Crimes Act). This is hardly surprising given the personal situation of the offender.

General Remarks and the authorities to which the court was referred

I note s 16A(2)(k) of the Crimes Act provides the court must have regard to the need to ensure that the offender is adequately punished for the offence. Subsections (h) and (ma) of s 16A(2) do not appear to have any relevance to this sentencing exercise.
The Commonwealth has referred the court to a significant volume of cases from intermediate appellate courts, those authorities being in the order in which they appear in the bound volume exhibit A on sentence: McNiece v The Queen [2018] VSCA 186; R v Clarke [2017] QCA 226; R v Conway [2017] ACTSC 275 (first instance decision of Penfold ACJ) R v Linardon [2014] NSWCCA 247; (a Crown Appeal) and DPP v Walls [2014] VSCA 323 (also a Crown Appeal)
In addition I was referred during the sentence hearing to DPP (Cth) v Garside [2016] VSCA 74, also a Crown appeal.
McNiece v The Queen involved much more significant offending than the matter presently under consideration and included Commonwealth and state offending. A total effective sentence of 4 years 10 months with a non-parole period 2 years and 2 months was imposed in respect of a total of 9 charges including three charges of Use Carriage Service to Solicit Child Pornography, three charges of Use Carriage Service to Transmit Indecent Communication, one charge of Procure child to Engage in Sexual Activity outside Australia, one charge of Use Carriage Service to Procure a Person under 16 years for Sexual Activity and one charge of Possession of Child Pornography the latter being the state offence.
At [4] of the judgment the communications were described as "graphic and explicit" and included images of an erect penis and spermatozoa. The judge at first instance described the offending as serious examples of serious offending. No apparent issue was taken with that finding. The offender pleaded guilty. One of the offences involved the offender attempting to arrange a person he believed to be 14 for the purposes of penetrative sexual activity. On an application for leave to appeal Whelan JA determined that there were no reasonable prospects that the court would reduce the total sentence.
R v Clarke involved an appeal against conviction as well as sentence. The conviction appeal was dismissed and leave to appeal refused on sentence. A charge of rape was defended but the offender pleaded guilty to Possession of Child Exploitation Material, Using a Carriage Service to Solicit Child Exploitation Material and Use Carriage Service to Transmit Indecent Communications. Given the charge of rape the decision is of very limited utility.
R v Conway is the only first instance decision provided. The charges for which the offender was sentenced appear to be the same as the matters presently under consideration. The offending is not dissimilar but appears to me to be more serious including the fact that there was an Assumed Online Identity. The indecent communications included "among other things to persuade the victims to engage in sexual activity with other young family members" (see [26]). Penfold J sentenced the offender to a total of 31 months to be served by way of Intensive Correction Order, which included a condition of 300 hours of community service. An ICO is not available in New South Wales because of the operation of s 67 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Likewise the nature of the offending would preclude a court in New South Wales from imposing community service.
R v Linardon involved a Crown Appeal against of a sentence imposed in the District Court of New South Wales in respect of a total of five charges being Possession of Child Pornography contrary to s 91H of the Crimes Act 1900 (NSW), Transmission of Child Pornography contrary to the Criminal Code (Cth), Accessing Child Pornography contrary to the Criminal Code (Cth), Transmission of Indecent Communication to a Person under 16 years contrary to the Criminal Code (Cth) and Aggravated Transmission of Child Pornography on three or more occasions contrary to the Criminal Code. At first instance a single non-parole period of 1 year 10 months was imposed in respect of the Commonwealth offending which was wholly concurrent with the sentence imposed in respect of the state offence. On appeal the Crown appeal was upheld and a single non-parole period of three years was imposed in respect of the Commonwealth offending, which was partially accumulated to the extent of 6 months on the fixed term imposed for the state offence.
The offending was clearly more serious than the matter I am considering, noting that the Possession of Child Pornography charge involved the possession of several thousand images. The Transmission offence involved sending child pornography to 12 other email accounts and a total of 256 images were distributed and there 29 "chat sessions". The access offence involved 130 child pornography images/videos in total sent from four email accounts. At [13] of the judgment it appears the person with whom the indecent communications were had was a 9 year old girl in the USA. Bathurst CJ in giving the judgment of the Court at [99] said of that offence: "…Although it is possible to envisage worse cases of this offence, these communications with a young child are of a very high level of seriousness".
The offender in that case transmitted 199 image/video child pornography files to the child. The aggravated transmission involved transmission on three occasions involving on my calculations a total of 86 (14+18+54) images/videos.
The appeal was brought on the ground of manifest inadequacy in that the sentences failed to reflect totality and failed to reflect sufficient regard to specific and general deterrence.
At [59] Bathurst CJ (Adams & Hulme JJ agreeing) said: "What is clear from the cases in that general deterrence is a matter of considerable significance in sentencing for offences of this nature".
General Deterrence was again referred to at [88]. The Court determined that the sentencing judge at first instance "failed to turn his mind to the issue of general deterrence" (see [88]). It was also found that the sentencing judge at first instance erred in dealing with the issues of accumulation and totality and he failed to take into account the overall criminality.
DPP (Cth) v Walls also involved criminality of a more serious nature than that in the matter presently under consideration. The offender in Walls pleaded guilty to two charges of Using a Carriage Service to Transmit an Indecent Communication, one charge of Use Carriage Service to Procure a Person under 16 years and one charge of Soliciting Child Pornography. The offender was sentenced to 22 months imprisonment but was ordered to be released forthwith on entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 - essentially a suspended sentence, which is the disposition sought by the offender in the matter that I am considering.
The offender was 25 and 26 years of age and the matter involved three child complainants who were 14 and 15. The offending occurred in 2012 and 2013. In respect of the first charge the offender and one of the complainants became Facebook friends. He sent messages saying that he was masturbating and sent her a picture of his penis. The second charge also involved sending a picture of his penis and also asking the complainant to sneak out at night to have sex with him. The text messages were described as being "plainly obscene, involving references to amongst other things ejaculation" (see [7]). He asked for nude photographs of the complainant. The messages in respect of charge 4 were described as "as obscene, explicit and inappropriate as those the subject of charges 1 and 2".
The court (Neave, Whelan and Beach JJA) at [17] acknowledged that the offending involved three real children that were living in the same local area as the offender. The conduct was found to be "frequent, calculated and predatory" and a little later as "persistent". At [23] and [24] the court said: "On any view the judge's sentence was very lenient. There is force in the appellant's submissions as to the seriousness of the respondent's offending and general deterrence, specific deterrence and punishment being required to be paramount considerations in sentencing for offending of this kind. That said, we reject the appellant's criticisms of the judge's conduct of the plea hearing in adjourning the matter for the purpose of obtaining of further material. Questions of manifest inadequacy do not admit of lengthy exposition. While the sentence imposed upon the respondent was very light we are not persuaded that it was outside the range of sentences permissibly open to the judge. The fact that it can be said that in cases of this kind one ordinarily expects a term of immediate imprisonment does not mean that it was not open to the judge in all of the circumstances of the matter before him to impose the sentence he ultimately pronounced. Further, as has been said before, while consideration of so called comparable cases has its role to play in determining whether a particular sentence was within the permissible range of sentences open to the sentencing judge, such assistance can only be limited having regard to the myriad of matters (which are never the same in each case) that must be taken into account by a sentencing judge."
Walls was decided in 2014, now some 7 years ago. Accepting that judicial memory is not always a reliable indicator of sentencing trends (see for e.g. MC v R [2017] NSWCCA 316) it certainly occurs to me that in that time there has certainly been an upward movement in sentences imposed for the type of offending with which this matter is concerned.
DPP (Cth v) Garside was also an unsuccessful Crown Appeal. The offending was different to that I am considering in that it involved Using a Carriage Service to Access Child Pornography and Knowingly Possess Child Pornography. Analysis of devices seized revealed a total of 6,018 items including images and video of child pornography material. A Community Corrections Order for 4 years with 300 hours of Community Work and a $5,000 fine was imposed.
Redlich and Beach JJA said at [62]: "What is clear from all of the authorities is that access to child pornography is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending…."
Their Honours went on to say at [72]-[73]: "The respondent's offending here was objectively serious, involving as it did thousands of images, some including infant children and most of it involving close up images of children exposing their genitals. The offending specified in the indictment continued over a protracted period and as the respondent admitted to investigators, the offending was not an isolated period of offending. The failure to impose an immediate and substantial period of imprisonment was not in conformity with the prevailing sentencing practice. Courts throughout Australia have emphasised the need for substantial penalties with general deterrence and denunciation being paramount considerations. When regard is had to the nature and circumstances of the offending, a CCO was in, in our opinion a disposition that was not reasonably open".
However, their Honours dismissed the appeal on the basis that they were not persuaded that the residual discretion should be exercised adversely to the respondent (see [83]). Priest JA concluded ([84]) that the sentence under appeal was not manifestly inadequate.
The offending in the cases to which I was referred by the Commonwealth was more serious than the matter I am considering. However, the principle that general deterrence is significant if not paramount is a common theme to the various decisions. Given the difference in the offending compared to the matter presently under consideration the cases to which I have been referred are of limited utility.
It is the primary submission of Ms Thampapillai on behalf of the offender that the court imposes a sentence of imprisonment and then order the offender's immediate release on him entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914. The concept of suspended sentences was considered by the High Court in Dinsdale v The Queen (2000) 202 CLR 321. Kirby J (Gleeson CJ Hayne J agreeing with the outcome but making brief additional comments; Gaudron & Gummow JJ agreeing) said (footnotes omitted) at [74]: "The statutory power to suspend the operation of a sentence of imprisonment, although historically of long standing, is sometimes considered controversial. The "[c]onceptual [i]ncongruity" involved in this form of sentence has been criticised. It has been suggested that there is a temptation to use this option where a non-custodial order would have been sufficient and appropriate. It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all."
His Honour went on to say at [79]-[80]: "The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a "soft option" when the court with the responsibility of sentencing is "not quite certain what to do. The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend."
Further his Honour said at [84]: "In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could have done so. This consideration is particularly relevant to the Western Australian legislation, which amounts to a recent endeavour to collect all the main principles of sentencing in a statute of general application."
A little later Howie J in giving the judgment of the court in R v Zamagias [2002] NSWCCA 17 said at [32]: "Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate."
Although his Honour was dealing specifically with s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (as it then was) it seems to me that with unfeigned respect the principles enunciated have a broader application.
I am of the opinion that I have dealt with the matters required by s 16A of the Crimes Act 1914. Section 17A(1) of the Crimes Act 1914 provides: "A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case."
The position of the Commonwealth is clear enough: a term of immediate imprisonment is required given the seriousness of the offending and the need for general deterrence (para 5 written submissions).
Ms Thampapillai puts on behalf of the offender (para 30 MFI 1 on sentence) that while a custodial sentence could be warranted it is submitted that it would be open to the court to order immediate release. In oral submissions it was put that the offender has been on bail for some time which would give the court some confidence that he would comply with any court order.
The solicitor for the offender refers to the decision of Yardley v Betts (1979) 22 SASR 108 at 112-113 where which King CJ said: "The protection of the community is also contributed to by the successful rehabilitation of offenders. This aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence had the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an order to avoid offending in future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm…"
This was referred to in R v Blackman & Walters [2001] NSWCCA 121. Although named, Blackman was a juvenile at the time of the offending (see [26] per Wood CJ at CL (Stein JA, Studdert J agreeing)). The matter involved (i.e. Blackman & Walters) what was described by Wood CJ at CL at [21] as "a home invasion in the middle of the night, in which law abiding and innocent victims were each subjected to an experience that could only have been absolutely terrifying". Those two offenders were in the scheme of things less involved than other older offenders.
Wood CJ at CL after referred to the part of Yardley & Betts relied upon by Ms Thampapillai said at [45]: "This has particular relevance for the present case. His Honour was, in my view, entitled to find that the position of each respondent was wholly exceptional, and that each had achieved a remarkable level of rehabilitation. Additionally, as I have previously noted, it was only by reason of their admissions, that their guilt could ever have been established. Moreover, if they had been sentenced to full time custody, they would have been at considerable personal risk by reason of the assistance given, which would have made their detention arduous and limited their opportunity to participate in the kinds of rehabilitation programs that would have been appropriate for young offenders. There was every reason to suppose that to send them to gaol would have been more likely to turn them towards a criminal way of life, than to maintain the degree of rehabilitation which each had, of his own effort and initiative, achieved."
Although the offending was very serious the situation is entirely different to the matter presently under consideration.
Given the offending in this matter and the seriousness of the offending as I have found it to be and the significance of general deterrence I am firmly of the opinion that no other sentence other than imprisonment is appropriate. Again, given the offending and the issue of general deterrence I am of the opinion that the sentence of imprisonment must be served by full time custody rather than by a suspended sentence. To use the expression used by Fullerton J in Karout v R [2019] NSWCCA 253 at [94] the objective seriousness of the offending and principle of general deterrence overwhelm other considerations in play.
The two offences for which the offender appears involve different offending. There should be some modest degree of partial accumulation to acknowledge the difference in the offending.
I note that the decision of Hili & Jones v The Queen (2010) 242 CLR 520 is authority for the proposition that there is no requirement for a non-parole period to represent a particular ratio to the head sentence.
In respect of the Transmission offence I am of the opinion that the appropriate starting point is 16 months imprisonment. In respect of the Solicit offence I am of the opinion that the appropriate starting point is 2 years 9 months.

Orders

In respect of each of the matters to which the offender has pleaded guilty he is convicted.
In respect of the offence of Use Carriage Service to Send Indecent Material to a Person believed to be Under 16 years the offender is sentenced to 12 months imprisonment to date from 4 June 2021.
In respect of the offence of Use Carriage Service to Solicit Child Abuse Material the offender is sentenced to 2 years imprisonment to date from 4 December 2021.
Accordingly, the total head sentence of 2 years 6 months commences on 4 June 2021 and expires on 3 December 2023.
Pursuant to s 20(1)(b) and s 19AC of the Crimes Act 1914 I direct that the offender be released after serving a period of 15 months from 4 June 2021 (i.e. 3 September 2022) upon him entering into a recognizance himself in the sum of $1000 to be of good behaviour for a period of 2 years.

Amendments 04 June 2021 - Name of Crown representative added 04 June 2021 - Minor typographical error corrected. 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: 04 June 2021

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