DPP (Cth) v Hizhnikov [2008] VSCA 269

Court of Appeal (Vic)|2008-12-18|Before: MAXWELL P, NETTLE and WEINBERG JJA

Criminal law - Crown appeal against sentence - Using carriage service to communicate with person under age of 16 with intention of procuring that person to engage in sexual activity contrary to s 474.26(1) of Criminal Code (Cth) - Person who uses internet to procure a child for sexual contact ordinarily to be imprisoned - Wholly suspended term of imprisonment inadequate in particular circumstances - Principle of double jeopardy - Restraint upon imposing term of actual imprisonment on appeal from wholly suspended term - Discretionary considerations - Appeal dismissed

2 Count 1 was brought pursuant to s 474.26(1) of the Criminal Code (Cth). The offence carries a maximum penalty of 15 years' imprisonment. Count 2 concerned the possession of child pornography contrary to s 70(1) of the Crimes Act 1958 (Vic). Counts 3 and 4 involved unrelated non-sexual offences of a relatively minor nature.

3 On 15 August 2008, the respondent was sentenced on count 1 to 22 months' imprisonment, to be released forthwith upon entering a recognizance in the sum of $1000, with a requirement that he be of good behaviour for four years. He was sentenced on count 2 to nine months' imprisonment, wholly suspended. He was fined a total of $500 without conviction on counts 3 and 4.

4 The Commonwealth Director of Public Prosecutions appeals against the sentence imposed on count 1. He argues, as did his counsel below, that nothing less than a sentence which involved a term of immediate imprisonment was appropriate in relation to that count.

5 The background facts may be stated briefly. On 6 February 2008 the respondent entered a 'chat room' plainly designated as a vehicle for communicating with girls under the age of sixteen. He engaged in a chat session with someone who gave her name as 'Lisa' and said that she was 14 years of age. He told her that he was 25 years old and lived in Dandenong. During that initial chat, they exchanged email addresses.

6 Later that same day, 'Lisa' entered an internet chat room and accepted a request from the applicant to add him to her contact list. He later sent her an email containing an image of himself and a message referring to their earlier exchange in the 'chat room'.

7 Still later that evening, the respondent engaged in a lengthy chat session with 'Lisa'. After general discussion, they made a tentative arrangement to meet the following Sunday, 10 February 2008, at Broadmeadows Railway Station. They discussed how they would spend the day. The respondent described in detail the sexual activity that he had planned for her and gave her information regarding oral sex and sexual intercourse. He told her that he would bring along condoms in case she decided to have intercourse with him. Following that session, the respondent sent her an email containing eight pornographic images depicting sexual activity between adult males and females.

8 At about 7 am on 10 February 2008, the respondent again entered the chat site and had further communication with 'Lisa'. They discussed meeting in the waiting room at the Broadmeadows Railway Station at a little after 9 am. 'Lisa' again stated that she was 14 years of age and the respondent further indicated the sexual activity that he intended to undertake with her.

9 At about 10 am that morning, the respondent arrived at the station. Shortly thereafter he was arrested. A search of his motor vehicle located alcohol, condoms, and a small amount of cannabis. He declined to answer any questions put to him by the police. Following his arrest, his home was searched and his computer seized. Located on that computer were some 58 images of child pornography and seven movie files of a similar nature.

10 In April 2008, the respondent indicated that he would plead guilty to all charges and subsequently did so.

11 The respondent is presently 25 years of age. At the time of the commission of these offences, he resided in a bungalow at the rear of his parents' home in Dandenong. He has no prior convictions.

12 The sentencing judge correctly characterised counts 1 and 2 as extremely serious offences. As her Honour noted, the chat site that the respondent entered was clearly marked as one that featured sexual activity with young girls. Right from the outset of his dealings with 'Lisa', she told him that she was 14 years of age.

13 On the plea, the respondent tendered two psychiatric reports. The first was prepared in June 2008 by Dr Nitin Dharwadkar, a consultant psychiatrist with considerable experience in forensic psychiatry. Dr Dharwadkar saw the respondent on two occasions in April and May 2008. He diagnosed anxiety and depressive symptoms going back a number of years, but substantially worsening during the preceding six months.

14 In Dr Dharwadkar's opinion, the respondent did not fulfil the criteria for paedophilia. He regarded the respondent's actions in February 2008 as having been brought about primarily by his state of depression. That in turn had resulted from his having sustained a severe back injury some years earlier. That injury had 'nipped his promising career as a gymnast in the bud'.

15 Dr Dharwadkar also noted that the respondent appeared to lack motivation in relation to his university studies and had recently failed his architecture examinations. In addition, he had been caught speeding and had lost his driver's licence. In Dr Dharwadkar's opinion, a lack of self-esteem and acute loneliness had combined to impair his judgment and had contributed to the respondent's offending. In his opinion, the respondent was 'very unlikely' to re-offend.

16 The second psychiatric report was prepared by Dr Nagalingam Mahalingam in July 2008. He too was a consultant psychiatrist with considerable experience in treating persons such as the respondent. In his report, he noted that the respondent had complained of having symptoms of depression for about 12 months, including low energy, poor sleep, lack of motivation and suicidal ideation. He had feelings of guilt about causing shame to his family.

17 According to Dr Mahalingam, the respondent had few close friends. He had never had a long-term relationship with a female. He seemed very remorseful. In Dr Mahalingam's opinion, he suffered from 'major depression', for which he was prescribed medication. His mental condition provided a possible reason for his behaviour, given that severe depression can impair both reasoning and judgment. He had responded well to treatment and his prognosis was good. It was 'very unlikely' that he would re-offend, though Dr Mahalingam considered that he would need ongoing counselling and antidepressant treatment for at least the next two years.

18 The sentencing judge was not entirely convinced by this psychiatric evidence. However, she was satisfied that the respondent was responding well to continuing treatment. She took into account the plea of guilty, the lack of any prior convictions, and some positive evidence of good character indicating that the respondent had worked closely with teenagers in the past without any hint of concern. Her Honour also took into account the respondent's close and supportive family background and the continuing affection and respect that others had for him.

19 Her Honour was particularly taken by the insight that the respondent had shown in recognising the seriousness of his behaviour and in immediately seeking treatment for his condition. She noted that no child had actually suffered in consequences of the offence in count 1. In accordance with authority, she treated that not as a mitigating factor, but rather as the absence of an aggravating factor.[1]

20 In carefully expressed reasons, the sentencing judge referred to a number of the factors relevant to sentence set out in s 16A of the Crimes Act 1914 (Cth). She said that she had considered all options and had decided that no sentence other than imprisonment was appropriate in the circumstances. However, the respondent's prospects of rehabilitation, his contrition, the steps that he had already taken in that regard, the assessment of the experts that he was unlikely to re-offend, and the treatment of his diagnosed major depression made it appropriate, in her view, to suspend that sentence.

21 The principles that govern Crown appeals against sentence are well established and we need not set them out again here.[2] Whether a sentence is manifestly inadequate will often not admit of much argument but is rather a matter of impression and experience.

22 The 'procurement' offence contained in s 474.26 targets adult offenders who exploit the anonymity of communication services such as the internet to win the trust of children with a view towards their sexual abuse. The practice is sometimes described as 'on-line grooming'.[3]

23 There is as yet not very much appellate authority regarding sentencing for this Commonwealth offence. There are, however, State analogues. In R v Burdon; ex parte Attorney-General (Qld),[4] the Queensland Court of Appeal said of the equivalent Queensland provision:

... people who are considering using the internet ... to attempt to make contact with young people with a view to corrupting or sexually exploiting them must now be on notice that such behaviour will be likely to result in a salutary penalty generally involving terms of actual imprisonment, even where indecent physical conduct does not and could not eventuate.[5]

24 Recently, in Western Australia v Collier,[6] a Crown appeal against sentence, the Western Australian Court of Appeal had something similar to say regarding the Western Australian equivalent to s 474.26. Steytler P, who delivered the judgment of the Court, made it clear that offences of this kind were regarded by the legislature as serious. His Honour said that paedophiles were increasingly making use of the internet to access children and groom them for subsequent sexual offending. He regarded an offender's conduct as being no less morally reprehensible if that person was communicating with someone believed to be a child, although not actually so, than if communicating with a person who was in fact a child. An offence of this kind would ordinarily, though not invariably, result in a term of immediate imprisonment. The fact that an offender was of previous good character did not mean that a term of immediate imprisonment should not be imposed.

25 Steytler P then summed up reasons why the Crown appeal should be allowed, and the respondent required to serve an actual term of imprisonment. His Honour said:

It seems to me that, even taking into account the matters favourable to the respondent, the sentence imposed was so manifestly inadequate as to demand the intervention of this court, notwithstanding the constraints inherent in a State appeal. This was a very serious example of this kind of offending, for the reasons that I have mentioned. In those circumstances there was, in my respectful opinion, no basis for the imposition of a sentence of suspended imprisonment, whether conditional or otherwise. Anything less than an immediate term of imprisonment does not take sufficient account of the seriousness of the respondent's offending behaviour or of the need to deter him, and others, from committing offences of this kind in the future. It is important to say, as clearly as one can, that adult persons who make use of the internet to locate, and make contact with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment. As with offences concerning possession of child pornography ... there is a paramount public interest in protecting children from sexual abuse.[7]

26 Collier is a recent statement of the principles that govern sentencing for offences of this type. It was submitted on behalf of the respondent that this Court should not follow the reasoning of Steytler P. In particular, it was submitted in this case, as it was in R v Gajjar[8] which was heard on the same day as this appeal, that there was no basis for saying that an offender committing this offence should 'ordinarily' expect to receive a term of immediate imprisonment.

27 As we said in Gajjar, Collier states correctly the principles that govern sentencing of offenders for offences of this nature. There is nothing untoward about the notion that a person who uses the internet in an attempt to procure a child to have sexual contact with him will ordinarily expect to receive a term of immediate imprisonment. This is simply a reflection of the seriousness with which the courts must view such conduct. Deterrence, both general and specific, will be the paramount consideration when sentencing an offender for an offence of this type.

28 Had we been sentencing the respondent, he would almost certainly have been required to serve a term of actual imprisonment. In that sense, we accept the Crown's submission that a wholly suspended term of imprisonment was grossly inadequate in the circumstances of this case. That is so notwithstanding the various mitigating circumstances upon which the sentencing judge relied in imposing the sentence that she did. Those mitigating factors were outweighed by the gravity of the offence, including the calculated and predatory behaviour of the respondent and his seeming willingness to go on with the venture. Moreover, the sentence imposed was extraordinarily light by comparison with other sentences imposed in similar cases in Victoria and within the Commonwealth.

29 The position is different, however, when it comes to a Crown appeal. There is first of all the principle of double jeopardy that must be taken into account.[9] Moreover, an additional reduction is necessary where an immediate custodial sentence is to be substituted in relation to a person who has been permitted to go at large.[10] In addition, even where manifest inadequacy is established, the Court has an overarching discretion not to interfere.[11] It would be inappropriate to intervene unless the sentence of imprisonment to be substituted was significantly greater than that imposed below.[12]

30 In all the circumstances, we consider that it would be wrong to require the respondent to undergo a term of some months' imprisonment now, having regard to the fact that he has been at large since being sentenced. It was not disputed on behalf of the Crown that he is continuing his treatment and that his already good prospects of rehabilitation are thereby being enhanced. To make a point of sending him to gaol for a relatively short period, as it would have to be having regard to ordinary principles of double jeopardy, would be largely self-defeating.

31 That is not to say that the respondent is anything other than extremely fortunate. Had this not been a Crown appeal, and had he been sentenced in accordance with the principles that we regard as appropriate, he would certainly have been given a term of immediate imprisonment.

32 For the reasons set out above, the appeal will be dismissed.

[1] R v Kennings [2004] QCA 162.

[2] Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295, 299; R v Clarke [1996] VICSC 30; [1996] 2 VR 520, 522; Director of Public Prosecutions v Josefski [2005] VSCA 265; (2005) 13 VR 85, [14]; and Director of Public Prosecutions v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, [10]-[11].

[3] See generally the Explanatory Memorandum to the Bill which became the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No. 2) 2004 (Cth). The amendment to the Criminal Code brought about by this Act came into force on 1 March 2005.

[5] Ibid, 108-9. This passage was cited with approval by de Jersey CJ in R v Hays [2006] QCA 20; (2006) 160 A Crim R 45.

[9] Director of Public Prosecutions v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, [10].

[10] Director of Public Prosecutions (Vic) v Leach [2003] VSCA 96; (2003) 139 A Crim R 64, [52] and Director of Public Prosecutions v BW [2007]VSCA 171. See also Director of Public Prosecutions v Oversby [2004] VSCA 208, [13], where Callaway JA said that if it is accepted that a sentence of three years is not manifestly inadequate, it would be rare to find that a suspended sentence would be manifestly inadequate.

[11] Director of Public Prosecutions v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, [10].

[12] Director of Public Prosecutions (Vic) v Leach, [2003] VSCA 96; (2003) 139 A Crim R 64, [52].

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