DPP (Cth) v Singh [2017] VSCA 146

Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

1 The respondent pleaded guilty to one charge of using a carriage service to procure a person under 16 years of age to engage in sexual activity, contrary to s 474.26(1) of the Criminal Code (Cth). Following a plea hearing, he was sentenced to a 3 year community correction order ('CCO')[1] and ordered to pay a $2000 fine.[2]

2 The Director appeals on the ground of manifest inadequacy.

3 The respondent was born on 1 July 1990 and was 25 years old at the time of the offending. In December 2013, he registered a Facebook profile under a false name, Vikram RaNa, and using a false birthdate. The Facebook profile contained his real phone number.

4 In March 2016, Victoria Police commenced an investigation into child exploitation on the internet. On 9 March 2016, a covert operative registered a false Facebook profile under the guise of a teenage girl and sent the respondent a friend request, which he accepted that day. Between 9 and 31 March 2016, the covert operative and the respondent exchanged Facebook and text messages.

5 On 11 March 2016, the covert operative told the respondent that she was 14. He responded, falsely, that he was born on 24 August 1993 and was 23 years old.[3] He commented that he was nine years older than her. He suggested that they call or text one another, so the covert operative supplied a phone number.

6 The respondent asked the covert operative whether she had a boyfriend. He stated that he had a girlfriend '8 months before broke up [sic]'. The respondent told the covert operative that 'Jonny' was his nickname and, truthfully, that his real name was Vikram but (falsely) that his surname was Rana.

7 The respondent and the covert operative discussed coming to the city to have fun, visiting, eating and drinking. He asked whether she drank alcohol, to which the covert operative responded that she was 14 years old and had drunk beer only once. He asked her for photos of herself and enquired about where her school was, her school hours and skipping classes.

8 On 14 March 2016, the respondent messaged the covert operative on Facebook to express his disappointment that they chatted infrequently, that she had not sent more pictures of herself and that she didn't call him. They then continued to converse by way of text message. The respondent stated that 14 years old was 'so young' for a relationship; asked if the covert operative would meet him before or after school and whether she would be able to sneak out, and repeatedly asked for more photos; and observed that his friend had said that his having a relationship with the covert operative would be 'not right', but admitted that he wanted a girlfriend and that 'in relationship[s] many things happen, you know what I mean'.

9 When the conversation continued a few days later, the respondent asked whether the covert operative liked older boys and whether she liked him as a friend or a boyfriend. He continued to seek photos of her and continued to plan to meet with her. He commented that she looked older than her age because of '[her] body structure' and asked her if she'd had sexual intercourse before. When asked what he wanted to do, he responded that if he and the covert operative were in a relationship he would 'want to do everything'. He proposed that she meet him at Flinders Street station. They would then eat something before going to his residence. He asked her whether she'd told anyone about their planned meeting.

10 When they spoke again on 21 March 2016, the covert operative told the respondent that she had no phone credit. The respondent offered to pay for her phone. Next, he explained that he'd like to cook Indian food for her. He pointed out that there would be no one at home on the day of their proposed meeting. He told her that he'd like to kiss her, and perhaps a 'little bit more'. He said that if he and the covert operative were in a relationship he'd want to 'do everything', including have sexual intercourse. He asked her whom she would tell if they had sex, and she said she'd keep it a secret. He responded: 'Oooh that's great'. He asked her if she was his girlfriend and when she said yes he asked her to say the 'three magic words': 'I love you'. When the covert operative asked the respondent what they would do at the meeting, he said:

11 The next day they made further plans to meet the day after that. The respondent asked the covert operative whether she drank beer, and said he would buy her beer. She reminded him that she was 14 years old. The respondent asked her if she had watched any pornographic films. He told her that the first time girls have sex, it would be a 'little bit pain[ful]' but that after that it would be enjoyable. He asked her if she wanted to have sex when they met, to which she said yes. He said he wanted to as well. He discussed fellatio and cunnilingus with her and said he would like to perform cunnilingus.

12 On 23 March 2016, the day of the proposed meeting, the covert operative cancelled, stating that she had sprained her ankle. The respondent expressed his disappointment, pointing out that he'd arranged for a house of a friend to be empty for their meeting. Arrangements were made for another meeting. The respondent requested more pictures of the covert operative. One was supplied. He again asked if they would have sex when they met and expressed his desire to do so. He also suggested that she watch pornographic films so she could learn 'how to do excellent sex'. He said that if she came to his place at around 10:00 am, they could spend four hours together and therefore have sex 'two or three times'.

13 On 25 March 2016, during conversation the respondent suggested that the covert operative save his phone number under a girl's name so that if her father saw a message he would not know it was from her boyfriend.

14 On 28 March 2016, the respondent asked the covert operative if she knew what a period was and when she had had her last period, to which she responded that she hadn't had her period yet. He also asked her if she knew about anal sex and said that he'd seen it in pornographic films and that if she wanted to do it then he would like to as well. When the covert operative said it might hurt he responded that they could try it and if it hurt then they would stop as he didn't want to hurt her.

15 The next day, he requested another photo of the covert operative and said he would take photos of the two of them when they met. When the covert operative sent her a picture he complimented her beautiful eyes and told her that her breasts looked 'so small' in the picture. He stated that, sometimes but not always, breasts grow after sex. He also offered to recharge her myki. He wanted to know whether the covert operative would meet with him on the day after their first meeting, and to think of an excuse to tell her mother for being absent from home on two consecutive days.

Respondent: But she was not virgin i mean she had sex before

Respondent: Look babe you told me age is just a number

But i would like to do if you give me the permission

Respondent: I don't want to do anything without your permission

Respondent: Its not a deal. Look i want to try but if you don't then okay i will not try it

Covert Operative: i mean we can work it out 2gtha on thurs

17 The next day, 30 March 2016, they made arrangements to meet at Huntingdale Station at 10:00 am on the following day. The respondent stated that whenever he and the covert operative discussed sex his 'one stand' and asked whether she felt excited when they talked. He asked if she would be nude for the whole time she was with him and said 'it would be too much fun'. He asked if she would rather have sex with or without a condom as the latter would be more fun and they'd both like it more. When the covert operative stated that she didn't want to get pregnant, he stated that she couldn't if he didn't ejaculate inside her vagina, which he wouldn't, or if she hadn't had her first period. He said that he would use a condom anyway, which he would buy. He asked her whether she would tell her friends and if she had a close friend with whom she shared secrets. He asked her whether she had pubic hair. He said he had never had sex with a virgin before and that he loved her 'so much'.

18 On 31 March 2016, the respondent gave the covert operative directions as to where to meet him near Huntingdale Station. He was observed parking and exiting his car. He was arrested in the underpass to Huntingdale Station.

19 Police attended the house to which the respondent intended to bring the girl, where they located food, alcohol and condoms. Condoms were also found in the driver's side door of the car that the respondent had driven to Huntingdale Station.

20 The respondent pleaded guilty at a committal mention hearing on 29 July 2016. The plea hearing was conducted on 19 October 2016 and he was sentenced on 22 December 2016.

21 The sentencing judge began by referring to authorities for the proposition that persons who contravene s 474.26(1) may 'ordinarily expect to receive a term of immediate imprisonment'.[5] He made reference to decisions of this Court concerning the relevance of sentencing statistics and comparable cases to the sentencing exercise.[6]

22 The judge stated that the conversations showed that the respondent exhibited a 'degree of naïvety'.[7] He found that the respondent's criminality was 'low level' in terms of the material exchanged and the content of the conversation.[8] He accepted the submission of the respondent's counsel on the plea that the Court was 'dealing with a person who is relatively physically diminutive, shy, comes from a sheltered environment and has experienced a limited social life'.[9]

23 He then referred in some detail to the findings of a psychologist, Dr Simon Kennedy.[10] He generally agreed with those findings, save that he pointed out that the respondent's statement that he was not certain that his 'victim' was under 16 years of age was incorrect, as the covert operative had on several occasions said she was 14.[11]

24 The judge mentioned the respondent's personal history in Australia.[12] The respondent had come to Australia on a temporary graduate visa to pursue further study. He had obtained a masters degree from Central Queensland University, but had not been able to find work in his field and so worked on a full-time basis at a pizza manufacturer.[13] The judge took into account the possibility that the respondent would have his visa cancelled and would be deported by reason of his conviction.[14]

25 Next, he observed that the respondent was not someone who 'troll[ed] the internet' to find victims.[15] Rather, he was 'deliberately targeted' by police, albeit he 'willingly ... partook' in conversations with the covert operative thereafter.[16] The judge stated that this targeting did not diminish the respondent's culpability, as the purpose of the legislation was to protect young children.[17]

26 The judge stated that the respondent 'glorified in' the fact that he was dealing with a 14-year-old child.[18] But he said that, upon reading the conversations between the respondent and the covert operative, 'the overwhelming conclusion ... is that he is a person, both insofar as experience, and indeed in regard to his own personality, who is particularly immature and naïve'.[19]

27 The respondent's crime was said by the judge to be 'one of low culpability'. The respondent had no prior convictions.[20] He stated that the principles of rehabilitation assumed importance in the context of a young offender, like the respondent.[21] He relied on two judgments of Maxwell P on the importance of rehabilitation[22] and stated that the principles they espoused 'impacted very strongly upon [him]'.[23]

28 The judge stated that 'mercy always plays a part in a determination as to sentence' and that a first-time offender was entitled to seek mercy from a sentencing judge.[24] He concluded that although the exercise 'had not been easy', this was a case in which an immediate term of imprisonment was not necessary.[25]

29 The Director particularised the manifest inadequacy ground as follows:

(a) the sentence does not adequately reflect the nature and circumstances of the offending, including the maximum penalty prescribed for the offence;

(b) the sentence does not adequately reflect the principles of general deterrence, punishment and denunciation; and

(c) the sentence does not adhere to the requirement of national consistency in sentencing standards for federal offences.

30 In respect of particular (a), the Director relied on several of the judge's findings:

(a) that the seriousness of the offending was reflected in the maximum penalty of 15 years' imprisonment, and that this reflected a legislative intention to protect young people from sexual predation on the internet;

(b) that the respondent believed he was communicating with a 14 year old virgin and that the fact he was communicating with a covert operative did not reduce the seriousness of the offending;

(c) that he willingly engaged in those conversations once the covert operative established contact;

(d) that he had arranged to meet the 'victim' and that he was arrested at the train station where he intended to do so;

(e) that he did not have any intellectual or psychological deficiencies that would diminish his culpability; and

(f) that he 'glorified' in the fact he was dealing with a 14 year old girl.

31 The Director pointed also to other facts and circumstances:

(a) the respondent's awareness of his 'victim's' age;

(c) several messages were sexually explicit and offensive;

(d) the nature of the proposed sexual activity, which included fellatio, cunnilingus, penile-vaginal and penile-anal penetration;

(e) the respondent offered inducements for the 'victim' to engage in sexual activity with him, including paying for her phone credit and myki, as well as buying food and alcohol;

(f) the extensive arrangements the respondent made to meet the covert operative for the express purpose of engaging in sexual activity;

(g) the respondent attended the meeting point at the arranged time;

(h) the offending was not isolated, but involved 'ongoing and persistent communication' by way of Facebook and text messages, most of which concerned plans to engage in sexual activity;

(i) the respondent was not an 'unwary innocent' but willingly engaged in the communications;

(j) the offending did not cease voluntarily despite the first intended meeting having been cancelled;

(k) the respondent's motive for the offending was sexual gratification and he specifically requested sexual penetration;

(l) the respondent was aware that his 'victim' had limited sexual experience and he sought to 'initiate her into sexual activity';

(n) an immediate term of imprisonment is usually required for this type of offending and it is rare that non-custodial sentences are imposed; and

(o) the lack of a real victim is not a mitigating circumstance.

32 As to particular (b), the Director submitted that general deterrence is the primary sentencing consideration for this kind of offending.[26] It followed that less weight is to be accorded to mitigating factors such as prior good character.[27]

33 The sentencing judge made no reference to general deterrence in his sentencing remarks, focussing instead on the respondent's personal circumstances, lack of prior convictions, good prospects of rehabilitation and low risk of reoffending. The Director contended that the effect of this was that general deterrence was 'swamped' by these other factors, in circumstances where those personal factors were not so extraordinary as to place the respondent in a unique position compared to others who had committed similar offending.

34 The judge did not, the Director contended, explain how the CCO would meet the requirements of general deterrence, punishment and denunciation in this case. In the present case only a term of imprisonment could adequately satisfy those requirements.

35 Finally, under particular (c) the Director contended that the sentence 'erodes the standard of sentences that are properly available' for offending of this kind. The Director relied on the decisions in R v Poynder,[28] Hizhnikov,[29] Gajjar[30] and R v Fuller.[31] She submitted that the sentences upheld in R v Nahlous[32] and Director of Public Prosecutions (Cth) v Walls,[33] two cases in which Crown appeals against sentences providing for immediate release were rejected, were outside the sentencing range.

36 The Director submitted that there is no reason calling for the exercise of the Court's residual discretion to dismiss a Director's appeal.

37 The respondent emphasised the difficulty in establishing manifest inadequacy. He contended that it was not established in this case.

38 As to particular (a), he submitted that the judge rightly found that the respondent exhibited 'naïvety' in his communications with the covert operative. No lewd photographs or other images were sent by the respondent, nor did he request lewd or explicit photographs be sent to him in response. Predation and deceit were absent, in that the respondent had not been actively seeking contact with children on the internet. Rather, for reasons unknown, he was 'targeted' by the covert operative.

39 As to particular (b), the respondent submitted that, although the judge did not specifically refer to general deterrence, he observed that an immediate term of imprisonment was ordinarily warranted but that in the particular circumstances of the case a CCO was appropriate. It was clear, therefore, that he had taken general deterrence into account. The judge's reference to mercy was permissible, and fell within the range of matters relevant to the sentencing exercise.

40 As to particular (c), the respondent contended that the sentence was not outside the range of sentences passed in other cases. He based this submission on the cases referred to by the Director, as well as Director of Public Prosecutions (Cth) v Boyles[34] and R v Burdon; Ex parte Attorney-General (Qld).[35] He submitted that there was no authority for the Director's submission that the sentences in Nahlous and Walls were outside the available sentencing range.

41 The respondent submitted that, if the sentence was found to be manifestly inadequate, the residual discretion should be exercised as it would be harsh, unjust and counterproductive to the respondent's rehabilitation for the Court to require him now to serve a period of immediate imprisonment, having been in the community pursuant to the CCO since 22 December 2016.

42 At the hearing of the appeal, counsel for the respondent provided documents said to bear on the residual discretion, including an updated report of Dr Kennedy and a progress report for the CCO written by the respondent's case manager. The progress report indicated that the respondent does not acknowledge his offending behaviour and considers that he was 'set up' by the police. It was hoped that he would cease to resist engaging in any meaningful discussion of his offending once he started to receive treatment under the CCO. That treatment had not yet commenced, pending the outcome of the appeal. In contrast, Dr Kennedy stated that the respondent displayed remorse and insight into his offending.

43 Section 474.26(1) of the Criminal Code (Cth) provides for the principal form of the offence of using a carriage service to procure a person under 16 years of age to engage in sexual activity. It provides:

(1) A person (the sender) commits an offence if:

(a) the sender uses a carriage service to transmit a communication to another person (the recipient); and

(b) the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender; and

(c) the recipient is someone who is, or who the sender believes to be, under 16 years of age; and

44 Section 474.28(9) provides that it does not matter that the recipient to whom the sender believes he or she is transmitting the communication is a fictitious person represented to the sender as a real person. In that regard, while the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it.[36]

45 These provisions, and related provisions prohibiting the use of the internet and other forms of communication for the purpose of seeking sexual involvement with children, are designed to protect young people from the considerable harm that may be done to them by such communications, even if physical sexual activity does not ensue.[37] It is well established that persons who use the internet for such purposes will ordinarily expect to receive an immediate term of imprisonment.[38] Deterrence, both general and specific, is the paramount sentencing consideration.[39] It follows that less weight, relatively speaking, will be accorded to what might otherwise be significant mitigating factors.[40]

46 That is not to say that an immediate term of imprisonment must be imposed in every case of offending against s 474.26. Nor did the Director contend for that position. It is clear that there will be some cases where it is open to a sentencing judge not to impose a term of imprisonment. Section 17A of the Crimes Act 1914 (Cth) provides that a court shall not pass a sentence of imprisonment for a federal offence unless it is satisfied, after having considered all other available sentences, that no other sentence is appropriate in all the circumstances of the case.[41]

47 At the hearing of the appeal the Court was taken to cases in which intermediate appellate courts have dealt with offending similar to that of the respondent. This Court considered the authorities governing the use of such cases in Director of Public Prosecutions (Cth) v Haynes, a recent decision concerning the same kind of offending:[42]

Comparable cases play an important role in advancing the underlying value of equality under the law and the search for unifying principles in the task of sentencing. Gleeson CJ, in Wong v The Queen,[43] emphasised that the criminal justice system must be systematic and fair and that this systematic fairness necessitates reasonable consistency:

The outcome of discretionary decision-making can never be uniform, but it ought to depend as little as possible upon the identity of the judge who happens to hear the case. Like cases should be treated in like manner.[44]

The plurality in Hili and the Court in Elias v The Queen[45] repeated these observations. In R v Pham,[46] French CJ, Keane and Nettle JJ further observed that comparable cases serve a twofold purpose, namely they provide 'guidance as to the identification and application of relevant sentencing principles' and may 'yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence.'[47] Hili, Barbaro and Pham reiterate that comparable cases do not mark the outer bounds of the sentencing discretion, although they may 'establish a range of sentences which have been imposed' and serve as 'a "yardstick" against which to examine a proposed sentence.'[48] Drawing upon these observations, Redlich JA (with whom Tate and Whelan JJA agreed) said in Nguyen v The Queen:

Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases.[49]

48 The Director relied primarily on four previous decisions which were said to provide useful guidance as to the kind of sentence appropriate in the present case. First, in Gajjar,[50] an offender who pleaded guilty to an offence under s 474.26(1) was sentenced to 2 years and 6 months' imprisonment with a requirement to serve 8 months. He was aged about 27 and had no prior convictions. He had used downloaded software to enter a 'chat room' called 'Family Sex'. There he communicated with an undercover police officer posing as a 14 year old girl. The offender claimed to be a 20 year old female and asked the officer whether she had previously had sex, before admitting to being a male. Using explicit and salacious language, he indicated his desire for a sexual encounter. He offered her an iPod. He provided her with his mobile telephone number so that they could meet at a train station. He attended at the train station. Police arrested him at his home later that day. This Court dismissed the offender's appeal. As to a ground of manifest excess, the Court noted the aggravating features of the offending, including the 'calculated and predatory conduct' of the offender, the graphic and salacious nature of the communications and the level of cunning displayed in pretending initially to be a female.[51] The promise of an iPod showed that the offender planned more than one contact with the girl.[52]

49 The second case was Hizhnikov,[53] which was heard and decided together with Gajjar. This was a Crown appeal against a sentence of 22 months' imprisonment, to be released forthwith on a recognisance to be of good behaviour for four years. The offender pleaded guilty to counts which relevantly included a charge under s 474.26(1) and a charge of possessing child pornography. Again, the offender had entered a 'chat room', this time one designated as a vehicle for communicating with girls under the age of 16. He communicated with a police officer who said she was a 14 year old girl. He told her that he was 25 years old, which appears to have been accurate. He later sent her an email with an image of himself. Later that evening in a further session in the chat room, a tentative arrangement was made to meet on the following weekend at a train station. The offender described in detail the sexual activity he planned, and gave her information about oral sex and sexual intercourse. He said that he would bring condoms with him in case she decided to have intercourse with him. He then sent her an email containing eight pornographic images showing sexual activity between adults. They communicated further on the morning of the agreed day for meeting. The officer again stated that she was 14 years old and the offender further indicated the sexual activity in which he intended to engage with her. The offender went to the agreed train station. Alcohol, cannabis and condoms were found in his motor vehicle and 58 images and seven movie files containing child pornography were found at his home. In imposing sentence, the sentencing judge was impressed by the insight the offender had shown in immediately seeking psychiatric treatment, which diagnosed major depression.[54]

50 This Court held that a wholly suspended term of imprisonment was 'grossly inadequate' and that, had it been sentencing the offender, he would almost certainly have been required to serve a term of actual imprisonment.[55] The Court referred, as it did in Gajjar, to the 'calculated and predatory behaviour' of the offender and his 'seeming willingness to go on with the venture'.[56] However, the Director's appeal was dismissed on the basis of the principle of double jeopardy, which at that time applied to such appeals, especially in cases where the respondent to the appeal was at large.[57] In addition, the offender was continuing treatment, which enhanced his already good prospects of rehabilitation, making it 'largely self-defeating' to send him to prison for what would have to be a relatively short period.[58]

51 Thirdly, in Poynder,[59] the offender pleaded guilty to two offences under s 474.26(1). He had engaged in telephone communications which were revealed by a telephone intercept. In the first instance, the offender had spoken through a chat service with a male person he believed to be under 16 years of age and entered into sexual discussions with him. The offender arranged to meet the other person at his home in order to have sex. However, he had taken down his details incorrectly. The second occasion involved a conversation with the same chat service with an undercover police officer who said she was 15 years old. The offender offered her money for sexual activity. After further sexual conversations he agreed to meet her at an address, at which he was subsequently arrested and found to be in possession of condoms, lubricant and $236.[60] Other offending for which the offender was sentenced at the same time concerned telephone conversations in which he told a prostitute that he planned to rape a young child, and approximately 540 calls to the telephone chat service in which he talked with people about sex with children and animals, offered money for sex with children and boasted to the audience at large that he was into 'wild taboo things such as sex with children, incest, rape, animals', among other things.[61] He claimed to have had sex with his daughter and a dog. The sentencing judge found that the offender sought sexual stimulation by fantasising about taboo sexual conduct in which he did not actually participate.[62] He sentenced the respondent to imprisonment for three years, on a recognisance release order to be released after 15 months. The Crown appealed.

52 The New South Wales Court of Criminal Appeal dismissed the appeal. James J (with whom Rothman and Harrison JJ agreed) noted, among other things, that there had been a discount of 25 per cent for the plea of guilty and some allowance for extra-curial punishment in that the offender would lose his profession as a solicitor after 25 years and therefore his livelihood.[63]

53 Finally, the Crown relied on Fuller.[64] Again, the offender pleaded guilty to a charge under s 474.26(1). He was sentenced to imprisonment for six months. The offender was a priest who was at least 54 years old at the time of sentence.[65] He engaged in communications, using a messaging service over the internet which involved typed text messages, images and live video recordings, with a fictitious online identity created by police, whom he believed was a 13 year old girl. The offender initiated explicit sexual conversations and instructed and encouraged the identity to masturbate. He transmitted live video images of himself masturbating. He proposed that they meet and engage in sexual acts. When he went to meet the fictitious girl, he was arrested.[66]

54 On the Director's appeal, the Court of Criminal Appeal found specific error in the sentence, including a failure to have regard to general deterrence, and resentenced the offender to an additional 12 months' imprisonment. This made a total of 18 months, to be released after six months. The Court applied the double jeopardy principle and took account of the fact that the sentence of imprisonment originally imposed had expired.[67]

55 The Director submitted that the facts of these cases were sufficiently similar to the present case to reveal that the range of available sentences open to the sentencing judge did not include a CCO without a term of imprisonment. Counsel submitted that there was nothing remarkable about the age of the respondent or his immaturity and naïvety. Such characteristics were common in offending of this kind. It was also noted that the respondent had not undertaken any serious rehabilitation. Counsel submitted that the present case was closest to Gajjar and that the offending was only somewhat less serious than that in the other three cases.

56 The respondent pointed to other cases in which more lenient sentences were upheld. In Nahlous,[68] which was a grooming offence under s 474.27 (for which the maximum penalty is 12 years' imprisonment), the victim was an actual child known to the offender. They engaged in message communications with a sexual element and the offender encouraged the child to keep their conversations secret. The sentencing judge found that the communications were not pornographic in nature.[69] He imposed a sentence of 18 months' imprisonment, fully suspended on a three year recognisance release order. The New South Wales Court of Criminal Appeal dismissed the appeal, including a manifest inadequacy ground.

57 In Walls,[70] the offender pleaded guilty to a charge under s 474.26(1) and three lesser related charges. He was sentenced on the principal charge to 18 months' imprisonment and released forthwith on a two year recognisance release order.[71] There were three child complainants, aged 14 and 15. The offender was aged 25 and 26 at the time of the offending. He repeatedly sent sexually explicit messages to the complainants over a period of nine months, including pictures of his penis. He referred to masturbation and ejaculation and asked one complainant to have sex with him. He also asked a complainant for nude photographs of herself, which were not provided. On the Director's appeal, this Court held that the sentence was 'very lenient'.[72] However, the Court was not persuaded that it was outside the range of sentences permissibly open, referring to the assistance which comparable cases provided as 'limited'.[73]

58 The Director submitted that the outcomes in Nahlous and Walls were anomalous. Alternatively, counsel pointed out that Nahlous, in particular, had involved no arranged meeting or any proposed sexual activity and the charge was for the lesser grooming offence. Both cases were said to involve mitigating features absent from the present case.

59 The respondent also referred to Boyles.[74] The offender pleaded guilty to a charge under s 474.26(1) and a charge of soliciting child pornography and was sentenced to a CCO of two years and six months. This Court identified specific sentencing error and held that a different sentence should have been imposed, but exercised the residual discretion to dismiss the Director's appeal. The offending had been committed while the respondent (who was aged 26) was in a manic state and the victim (aged 15) was a student he was supervising as part of a work experience program. The offender repeatedly asked the victim to engage in sexual activity with him. He sent her a photograph of himself naked with an erect penis.[75]

60 Maxwell P and Osborn JA (with whom Tate JA agreed) held that the case did not involve 'predation and deceit'; there had been no 'hunting' for potential victims or adoption of a false persona.[76] However, apart from the factors which went to the residual discretion, the case demanded a period of 'some months' of imprisonment.[77]

61 Finally, the respondent relied on Burdon.[78] This was another charge of procuring, but under State legislation with a maximum penalty of five years' imprisonment.[79] It involved a police officer posing as a 13 year old child. The offender was aged 50. He engaged in internet messaging with the officer. As well as discussing sexual matters and sending her a photograph of his erect penis, he arranged to meet her to engage in sexual activity. He was sentenced to 18 months' imprisonment on the procuring charge, wholly suspended for two years.[80] A Crown appeal was dismissed. The Queensland Court of Appeal held that a sentence as sought by the prosecutor involving three months of actual imprisonment would have been 'well within the appropriate range'.[81] However, mitigating factors including the offender's completion of community service work ordered on a related indecency charge and a delay of over a year since his arrest were sufficient to 'tip the scales' against allowing the appeal.[82]

62 The cases show a very wide range of offending and sentencing dispositions for the offence under s 474.26(1) and like offences. Some of the aggravating features found in the authorities were absent in the present matter. In particular, as counsel for the respondent emphasised, the respondent did not actively seek out children for sexually inappropriate exchanges. In that sense, his behaviour was not 'predatory'. It also lacked the degree of cunning displayed by some offenders. The respondent did not send or solicit any pornographic images or video recordings. The communications, while wholly inappropriate and obscene, were not of the especially depraved kind found in some of the other cases.

63 At the same time, it was a highly aggravating feature that the offender arranged to meet with the officer and attended that meeting having equipped himself to engage in sexual activity with her. In addition, he persisted in arranging such a meeting after she had cancelled the first proposed encounter. While he did not initially seek out the officer, once they were in communication, he did not require any coaxing on her part in order to offend.

64 The seriousness of the offence under s 474.26(1) is not to be underestimated. The conduct which it prohibits is insidious and often highly damaging. The offending is calculated to harm children who are vulnerable to abusive, predatory approaches, which are of their nature liable to be kept secret from third parties. The maximum penalty for the offence is very substantial. The authorities are clear that the offence usually merits a term of immediate imprisonment. Lesser sentencing dispositions should be very rare. While there are a number of instances of noncustodial sentences having been upheld after appeal, several of them turned on features peculiar to Crown appeals. None of them should be seen as anything other than exceptional.

65 The sentencing judge plainly gave the appropriate sentence anxious consideration and so have we. Were we exercising the sentencing discretion ourselves, we would have imposed a term of immediate imprisonment. For our part, the case did not display sufficient mitigating features to take it out of the ordinary kind of offending in this area which demands an immediate term of imprisonment. However, this Court's role on appeal is not to substitute the sentence it would itself have passed, unless specific error is shown in the sentence imposed or it finds that the sentence was not reasonably open.[83] With some hesitation we have come to the conclusion that the disposition at which the judge arrived, while remarkably lenient, was not wholly outside the range of sentences available in this instance. The four cases upon which the Director relied all involved offending of a markedly more serious kind than the present case, including predatory conduct and the provision of pornographic material. The sentencing judge opted for a merciful sentence which had regard to the respondent's immaturity and naïvety, and the fact that he was not searching the internet for children with whom to have sexually explicit communications. Although the judge did not in terms refer to general deterrence, it is plain from his remarks, which quoted cases concerning the primacy of deterrence (both general and specific) that he did not fail to take that matter into account.

67 In light of that conclusion, it is not necessary to address the residual discretion. However, we wish to note our significant concern that the respondent has apparently not been required to attend treatment for his offending while the present appeal has been pending. The filing of a notice of appeal does not operate as a stay of the CCO, and the offender and the community should not be deprived of the advantages of treatment ordered under a CCO while an appeal is pending.

[1] In addition to the core conditions, the respondent was required to perform 250 hours of unpaid community work, participate in programs that address factors relating to his offending and be subject to supervision by a community corrections officer.

[2] He was also required to comply with reporting obligations under the Sex Offenders Registration Act 2004 for eight years.

[3] Had that been his birthday, he would have been 22 at the relevant time.

[4] The spelling errors are reproduced from the original messages.

[5] DPP (Cth) v Singh (Unreported, County Court of Victoria, Judge McInerney, 22 December 2016) [14]-[15] ('Reasons'), quoting Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310, 321 [43] (Steytler P; McLure and Miller JJA agreeing) and DPP (Cth) v Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69, 74 [27] (Maxwell P, Nettle and Weinberg JJA) ('Hizhnikov').

[14] Ibid [45], citing Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288.

[22] DPP v Tokava [2006] VSCA 156 [21]-[24]; R v Merrett [2007] VSCA 1; (2007) 14 VR 392, 403 [49].

[26] She relied, among other cases, on Hizhnikov [2008] VSCA 269; (2008) 192 A Crim 69, 74 [26] (Maxwell P, Nettle and Weinberg JJA) and R v Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76, 81 [27] (Maxwell P, Nettle and Weinberg JJA) ('Gajjar').

[27] Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76, 81 [28].

[28] [2007] NSWCCA 157; (2007) 171 A Crim R 544 ('Poynder').

[29] [2008] VSCA 269; (2008) 192 A Crim R 69.

[30] [2008] VSCA 268; (2008) 192 A Crim R 76.

[31] [2010] NSWCCA 192 ('Fuller').

[32] [2013] NSWCCA 90; (2013) 273 FLR 232 ('Nahlous').

[33] [2014] VSCA 323 ('Walls').

[34] [2016] VSCA 267 ('Boyles').

[35] [2005] QCA 147 ('Burdon').

[36] Fuller [2010] NSWCCA 192 [35] (McClellan CJ at CL; Hislop J and Barr AJ agreeing).

[38] Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76, 85-6 [61]-[64] (Maxwell P, Nettle and Weinberg JJA); Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69, 74 [27] (Maxwell P, Nettle and Weinberg JJA).

[39] Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69, 74 [27].

[40] Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76, 81 [28].

[41] This principle of 'parsimony' is likewise found in s 5(4) of the Sentencing Act 1991.

[42] [2017] VSCA 79 [33]-[34] (Redlich, Weinberg and McLeish JJA).

[43] [2001] HCA 64; (2001) 207 CLR 584.

[45] [2013] HCA 31; (2013) 248 CLR 483.

[46] [2015] HCA 39; (2015) 256 CLR 550 ('Pham').

[48] Nguyen v The Queen [2016] VSCA 198 [71].

[50] [2008] VSCA 268; (2008) 192 A Crim R 76.

[53] [2008] VSCA 269; (2008) 192 A Crim R 69.

[59] [2007] NSWCCA 157; (2007) 171 A Crim R 544.

[60] Ibid 547-8 [9] (James J; Rothman and Harrison JJ agreeing).

[64] [2010] NSWCCA 192.

[65] Ibid [15]. The evidence of the offender's age is unclear. Cf DPP (Cth) v Haynes [2017] VSCA 79 [41] (Redlich, Weinberg and McLeish JJA), in which this Court stated that he was 61.

[66] Fuller [2010] NSWCCA 192 [5]-[8] (McClellan CJ at CL; Hislop J and Barr AJ agreeing).

[68] [2013] NSWCCA 90; (2013) 273 FLR 232.

[69] Ibid 236 [35] (Adamson J; Hoeben CJ at CL and Davies J agreeing).

[70] [2014] VSCA 323.

[71] Ibid [1] (Neave, Whelan and Beach JJA). It is possible that, rather than a recognisance release order, the sentencing judge imposed a wholly suspended sentence: see at [13].

[74] [2016] VSCA 267.

[75] See generally ibid [10]-[16] (Maxwell P and Osborn JA).

[78] [2005] QCA 147; (2005) 153 A Crim R 104.

[79] See Criminal Code 1899 (Qld) s 218A.

[80] Burdon [2005] QCA 147; (2005) 153 A Crim R 104, 105 (McMurdo P; Muir and Wilson JJ agreeing).

[83] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127] (Ashley, Redlich and Weinberg JJA).