[2014] HCA 2
Dinsdale v The Queen (2000) 202 CLR 321
[2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
Source
Original judgment source is linked above.
Catchwords
(2005) 218 ALR 764
Barbaro v The QueenZirilli v The Queen (2014) 253 CLR 58[2014] HCA 2
Dinsdale v The Queen (2000) 202 CLR 321[2000] HCA 54
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194
Director of Public Prosecutions (Cth) v Hizhnikov [2008] VSCA 269Jones v The Queen (2010) 242 CLR 520[2010] HCA 45
Hone v Western Australia [2007] WASCA 283(2007) 179 A Crim R 138
House v The King (1936) 55 CLR 499[1936] HCA 40
Jolly v R [2013] NSWCCA 76(2013) 229 A Crim R 198
Markarian v The Queen (2005) 228 CLR 357(2008) 192 A Crim R 76
R v Hays [2006] QCA 20(2006) 160 A Crim R 45
R v Klamo (2008) 18 VR 644[2008] VSCA 75
R v Loveridge [2014] NSWCCA 120(2014) 243 A Crim R 31
R v Makoare [2001] 1 NZLR 318
R v Palu [2002] NSWCCA 381(2002) 134 A Crim R 174
R v PCB [2012] NSWSC 482
R v Poynder [2007] NSWCCA 157(2007) 171 A Crim R 544
R v Qutami [2001] NSWCCA 353
(2001) 127 A Crim R 369
R v Rodriguez [2010] NSWSC 198
R v Thomson
R v Houlton (2000) 49 NSWLR 383
[2000] NSWCCA 309
Reberger v R [2011] NSWCCA 132
Tector v R [2008] NSWCCA 151
(2008) 186 A Crim R 133
The Queen v Olbrich (1999) 199 CLR 270
[1999] HCA 54
The Queen v Pham (2015) 256 CLR 550
[2015] HCA 39
Veen v The Queen (No 2) (1988) 164 CLR 465
[1988] HCA 14
Western Australia v Collier [2007] WASCA 250
Judgment (16 paragraphs)
[1]
Background
The following summary of the offending conduct, which occurred over a period of about three months between 6 October 2014 and 26 December 2014, is largely drawn from the Agreed Statement of Facts tendered in the sentence proceedings.
The applicant was 35 years of age at the time of the offences, which involved the sending of text communications to the victims using the electronic "Facebook Messenger" service. The Facebook account used by the applicant was in his own name. There were two victims, both girls. CLT, the victim in respect of the sequence one offence, was aged 13 at the time; MS, the victim in respect of the sequence two offence, was aged 14 at the time.
The applicant did not know either of the victims. At the sentence hearing, his legal representative informed the Court that the applicant had been "introduced" to them via Facebook by someone else. He never actually met with either of the victims. He did not attempt to conceal his identity; indeed he sent a genuine photograph of himself to CLT. At the time of the offences, he was living with his parents and was a university student. When the applicant's digital devices were seized and examined, no pornography nor any child or adult sexual exploitative material was found on them.
[2]
Sequence one - CLT
The applicant first contacted CLT using Facebook on 6 October 2014, sending the message "Hey im the guy that was gonna do a sex deal with you. Are you interested just me and you?". On 10 October 2014, the applicant sent CLT a further message offering "200 for a blowjob and sex". In the course of that day there were about 100 messages over a period of 10 hours, including: whether CLT would "give head"; whether he could "cum in [her] mouth"; how much he would pay her; that he would pay her on a regular basis if she would [do it]; that he wanted to do it while she was 13; asking whether she was "sure [she was] OK to fuck an old guy"'; asking her to swear no one knew they were talking; saying that they would have to meet when it was dark because of her age; asking her "And how many guys you fucked and you on birth control" and to "send your nude to prove you serious"; telling CLT never to tell anyone as he did not want to go to jail; asking her to promise that she was 13; telling her the "main reason I want to fuck you is cause 13 the one age I never fucked"; asking her whether she would let him "suck your tits finger and lick your pussy"; asking other sexually explicit questions; asking whether she would engage in anal sex; suggesting he "might get us a motel so we can be comfortable and I can give you a mad fuck"; and telling her "just make sure you fully shaved no hair at all".
The victim's sister then sent a message on that day telling the applicant not to message her sister like that, to which the applicant responded among other things that "she wasn't planning on meeting anytime soon" and that "I think she was all talk anyway". The applicant then asked for the phone number so he could contact the victim's sister, requesting her not to call the police and asking her (the sister, who was then 20 years old) "Would you have sex for money".
The applicant continued to send messages to CLT on Facebook between 11 October and 26 December 2014, in total sending messages on 10 different days. On 25 December 2014, in response to a challenge by the sister, he seemingly sought to justify his conduct and said "If it wasn't for you your sister would be talking to me and would have meet up. She was going to … but I decided against it".
The applicant was arrested on 29 December 2014. When arrested, the applicant (who agreed to the general conversations put to him but said he had no recollection of specific messages or exact conversations) said that, where discussions as to the age of the victim had occurred, this was his way of making sure the victim was over 16 years of age or he was talking "bullshit".
Nevertheless, the applicant concedes that he believed CLT was 13 at the time of the offence.
[3]
Sequence two - MS
The second victim was identified following an examination of the applicant's telephone. She was 14 years of age. The applicant sent a text message to MS at 1.26am on 26 November 2015 which stated "but yeah I prefer small or no tits that's why love to do a deal with you". Over a period of about one month, the applicant contacted MS via phone calls, text messages and Facebook messages, initially requesting that she meet with him to give him "head" for $50. He stated that he would get a hotel room for that purpose. MS agreed to the proposed arrangement.
The applicant thereafter proposed to MS that he meet with her in a hotel where he would pay her a sum of money provided she have sex with him a number of times over a period of four hours. MS agreed to this and arrangements were made for MS to come to Parramatta to meet with the applicant. Once MS was at Parramatta station the applicant stated that he was not in Parramatta but that, now he knew she would follow through with the arrangements, he would come next time.
Contact between the applicant and MS ceased when she deleted him from Facebook contact with her and blocked his number on her phone.
After his arrest, the applicant was offered an opportunity to participate in an electronically recorded interview in relation to the allegations involving MS. He said he had heard her name before but did not know her personally. When asked about his text messages and call history in relation to MS he declined to comment further.
[4]
Sentence hearing
As noted, the applicant pleaded guilty to both charges. At the sentence hearing the agreed statement of facts was tendered. The applicant's prior criminal record was in evidence. That record included an offence in September 2011 of using a carriage service to menace, harass or offend, in contravention of s 474.17(1) of the Criminal Code. The conduct in question involved the applicant harassing an adult work colleague by calling her and heavily breathing over the phone, sending a photo message to her mobile phone that depicted his erect penis, and requesting, via mobile text messages, that she have sex with him for money. The sentence imposed was a non-custodial bond. The applicant also had convictions for offences of aggravated robbery and deprive person of liberty for which he was sentenced to a term of full-time imprisonment in October 2006.
A pre-sentence report dated 22 October 2015 was tendered by the Crown. The report noted that Forensic Psychology Services had reviewed the applicant's file and had assessed the applicant's risk of sexual (and violent) reoffending (using an actuarial assessment tool known as Static99R) as being in the Moderate-High category relative to other male sex offenders.
The applicant tendered a report dated 4 November 2015 from a psychologist, Rev Dr Peter Powell, who gave evidence in chief and was not cross-examined by the Crown. In his oral evidence, Rev Dr Powell gave his occupation as "psychologist and clergyman" (T 3.9). His written report, which contains an acknowledgment of, and agreement to be bound by the expert witness code of conduct, sets out his "profile" and describes (at [1]-[5]) his experience, which seems broadly to be that of a counsellor or pastoral counsellor.
The report does not set out any particular medical or scientific qualifications held by Rev Dr Powell as a psychologist, but states that he is a psychologist registered in Australia; a clinical member of the Australian and New Zealand Association for the Treatment of Sexual Abuse; and that he is clinically accredited with the New South Wales Child Sex Offender Counsellor Accreditation scheme to work with adults and an accredited supervisor with the New South Wales College of Clinical Pastoral Education, of which college he is currently the President. The report states that he completed a half unit part time (200 hours) supervised "Clinical Pastoral Education" in 1979 and four units (400 hours) as a full-time fellowship recipient at Royal North Shore Hospital in 1980, counselling primarily in the spinal unit; that he studied in New Orleans in "Clinical Pastoral Education" and counselling; and that he undertook a three year counselling program in Illinois while also undertaking doctoral studies at Garrett-Evangelical Seminary in Chicago, Illinois, where he completed a doctoral dissertation on "Cross-Gender Friendships: Implications for the marital dyad", focussing on the attitudes and behaviour of couples in central Illinois.
[5]
Sentencing remarks
After recounting the agreed facts, her Honour said (at p 5;) that, in terms of subjective (sic; it is accepted by the applicant that her Honour here must have meant "objective") seriousness for offences of this type, each offence was in the mid to high range.
Her Honour then considered the material tendered by the applicant and summarised his subjective circumstances. Referring to Rev Dr Powell's report, her Honour (at p 7) expressed some concern at his opinion that the applicant's "propensity to want to share the responsibility with the girls distorts the clarity of the disclosure and his attitudes are strongly influenced by the possibility of punishment for wrongdoing rather than a moral commitment to treat others with respect". Her Honour noted that the account Rev Dr Powell gave of the applicant was that of a disturbed man (at p 8).
When summarising Rev Dr Powell's report and evidence, her Honour noted that the applicant had indicated to Rev Dr Powell that he never intended actually to meet the girls he was contacting and said (at p 8):
The Offender did not give evidence. It is difficult to assess the veracity of that statement, particularly, when in both situations the children broke off contact with the Offender. I do not accept that he would not have met with the children.
Of significant concern to her Honour in the pre-sentence report was that the applicant had said that he believed the girls he approached were young girls who had understated their age and he tended to feel he was misled by them, something her Honour noted was clearly not true. Her Honour also said that the applicant's failure to accept full responsibility for his actions and his lack of empathy to the children was of concern (at p 9).
Her Honour noted the Crown's submission as to the need for general deterrence as there is a significant public interest in protecting children from sexual abuse from predators such as the applicant (at p 10).
Addressing the submissions made by counsel for the applicant, her Honour noted the submission that in relation to both offences the applicant did not actually meet with the victims (at p 11). Her Honour treated that submission with caution as the applicant did not give evidence. Her Honour also said that she did not accept that the applicant had committed the offences "for the thrill of the chase", responding to the applicant's submission that there was no sign of child exploitation material or pornography on the applicant's computer and that she would accept the evidence of Rev Dr Powell "that it was the thrill of the chase rather than intending to meet and have sex with a 13 or 14 year old for money".
[6]
Section 474.26(1) of the Criminal Code
Before turning to the various appeal grounds, it is important to note that the offences with which the applicant was charged, and to which he pleaded guilty, include as an element of the offence the intention to procure the recipient of the relevant communication to engage in sexual activity.
The definition of "sexual activity" does not require any meeting in person. Rather, "sexual activity" can be by means of a communication that allows the sender to see or hear the recipient. A person may be found guilty of an offence against s 474.26 even if it is impossible for the sexual activity referred to in the section to take place (s 474.28(8)); for example where the sender is communicating with recipient who is using an assumed online identity.
The offence is committed if a person (in this case the applicant) who is at least 18 years of age uses a carriage service to transmit a communication to a person (the recipient) who is, or who the sender believes to be, under 16 years of age and the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender. (See ss 5.6(1) and 5.2 of the Criminal Code as to the fault element of the offence.)
By his plea of guilty, therefore, the applicant accepted that he communicated with both CLT and MS with the intention of procuring them to engage in sexual activity with him. The applicant expressly disavows any attempt to traverse that plea. However, the argument mounted for the applicant on appeal is that he did not persist with, or act upon, that intention, a matter which is said to lessen the objective seriousness of his offending.
In R v Fuller [2010] NSWCCA 192 (at [25]-[26]) McClellan CJ at CL said, of the seriousness of an offence contrary to s 474.26, that:
The internet has produced many benefits for the community but has also brought some problems. One of those problems is addressed by s 474.26 of the Commonwealth Criminal Code. The offence is made possible because the internet provides access to communicate with others anonymously. Tragically, experience has shown that it is not uncommon for immature persons, particularly females, to explore the internet and accept communications from adults who are seeking sexual encounters with children. Because a child can access and navigate the internet without the supervision of a responsible adult, the opportunity for a sexual predator to identify a potential victim is significant. If communication is made, the harm to the young person may be considerable, even if sexual activity does not ultimately occur. Of course, the potential for harm will be greater if sexual activity does take place. (my emphasis)
It is for these reasons that the legislature has made it an offence to use the internet to procure a young person to engage in or submit to sexual activity. It is also apparent that the detection of the offence may be difficult. For this reason the legislature has determined that the law enforcement authorities should be empowered to identify persons who are seeking to communicate in the manner prohibited by the section by creating fictitious identities.
[7]
Ground 1 - rejection of Rev Dr Powell's evidence as to intention
The applicant emphasises the following oral evidence given by Rev Dr Powell (at T 12.38-13.8), part of which has already been extracted at [27] above:
Q. Just before we move away from this area, in the course of the material you've been provided with or in conference with Mr Gifford, has he communicated to you or have you read there's no sign, phones, computers, tablets of child porn anywhere?
A. No that's my understanding, yes. And he's said that to me and that's my understanding of the material I've got, yes.
Q. And would that tend to suggest to you that his preference really lay up the older age and scale and this was some sort of opportunity that presented?
A. It more relates to the kind of depression and personality he has in that -he's unusual, because there are very few people in Mr Gifford's place that don't have some exploiting material, either adult or child on their computers, but his, I guess, modus operandi was the thrill of engaging the dialogue with these people, who he, I think, correctly said I was never going to [meet], I actually find that quite believable, when the girl turned up he wasn't there. It's just the part of his addiction of thrill-chasing is to do all these exciting things and see if they can happen and then he never turns up, because I couldn't engage them anyway. So it's more some weird attempt to making a relationship work than it is to actually go into deviant pornography [or] other behaviours. (my emphasis)
In the applicant's written submissions at the sentence hearing, the Court was asked to accept that "part" of the satisfaction the applicant gained from the Facebook communication "was the act of communication in and of itself", something said to be "to some degree accepted" by the fact the applicant did not attend the Parramatta train station for the meeting arranged with MS (at [17]).
In oral submissions before the sentencing judge, the following was said (on which the applicant here places particular importance):
He accepts at the time that he was on the computer, as you heard from the psychologist, that he was enjoying the chase and that he had the intention at that point to send those messages to entice those people, and that's what needs to be proved. The name of the case escapes me at the moment and one of the authorities talks about a submission that's made that says but he never went through with it. Well we accept that's not an element of the offence. But the reason I actually raise that for your Honour's consideration is in concert with the last series of questions to the psychologist, on his mobile phone, on his computers, on three different devices there was no other signs of child exploitation material, none whatsoever, which is in my experience ... (T 16.25-32) (my emphasis)
…
[after the judge interjected "It's unusual"]
…
Very unusual indeed. Which is why I asked the question I did about was there, say, crime of opportunity. … [After then making the submission that the applicant had been introduced to the victims through the environment of Facebook as a university student communicating with people substantially younger than him, the submission proceeds] It wasn't that people were being sought out, there was this opportunity. You heard from the psychologist it was the thrill of the chase' (T.17.3). (my emphasis)
[8]
Determination
Although the Crown was apparently prepared to accept that Rev Dr Powell's opinion was appropriately being put forward as an "expert opinion", the basis upon which it is said to be an expert opinion is by no means apparent.
Without intending any disrespect to Rev Dr Powell, who the sentencing judge found to be an impressive and frank witness (and who the applicant's counsel lauded as someone who was not just a "gun for hire"), all that can be gleaned from his report as to his qualifications as a psychologist is that he has had education, training and experience in the field of counselling or pastoral counselling. It is not apparent that counselling is a recognised area of expertise of the kind that would permit Rev Dr Powell to opine as an expert as to the subjective motivation for the applicant's conduct (i.e., the thrill of the chase theory) or as to the veracity of statements made by the applicant as to his lack of an actual intention to meet the victims (i.e., a lack of intention to act upon the very arrangements into which he was inducing them to enter). It is by no means apparent that the opinion of a counsellor as to those matters would satisfy the test articulated by King CJ in R v Bonython (1984) 38 SASR 45 at 46-7 for expert evidence. (And in this regard I note that the authors of Cross on Evidence (JD Heydon, 10th ed, 2014, LexisNexis) express the opinion that it is peculiarly a matter within the province of the jury to form an opinion as to past intentions (see [29050], citing R v Chard (1971) 56 Cr App R 268; R v Makoare [2001] 1 NZLR 318 at [21]-[22]).
It seems apparent from Rev Dr Powell's report, and from the questioning at the hearing of Rev Dr Powell by counsel for the applicant as to the counselling programme and its effectiveness compared with counselling or programmes that might be available in gaol, that the issue to which his report was primarily addressed was as to the applicant's prospects for rehabilitation (which was linked to the question as to whether a finding of special circumstances ought be made to enable the applicant to undergo the programme of counselling that Rev Dr Powell envisaged would be necessary in his case). That may explain the otherwise rather surprising forensic decision apparently taken by the Crown neither to challenge Rev Dr Powell's expertise to give "expert" evidence on matters going to the applicant's subjective intention or thought processes at the time of the offending nor to test by way of cross-examination Rev Dr Powell's acceptance (counter-intuitive as he said it was) of the applicant's statements as to the applicant's lack of intention actually to meet the respective victims.
[9]
Ground 2 - characterisation of the objective seriousness of the offences
The applicant submits (but apparently only for the purpose of noting this) that there is potential inconsistency in her Honour's initial description of the objective seriousness of the offences as being "in the mid to high range" or to the mid to high end of the scale of such offences (see pp 5; 12) on the one hand and her Honour's description of it being "high" (see p 12) on the other hand. However, the nub of the challenge to her Honour's reasons thrown up by ground 2 is the submission that a proper assessment of the objective seriousness in this case would place it at "no higher than" the middle range or (if ground 1 is upheld and it is accepted that Rev Dr Powell's opinion as to lack of an intention actually to meet the victims was inappropriately rejected) possibly at the low to mid range.
The applicant concedes that the statement of de Jersey CJ in Hays at [22] is applicable to the present case:
A meeting for the purpose of sexual exploitation carries particular risk to the immature victim. But so does indecent communication by an offender of mature years directed at an immature and therefore vulnerable child over the Internet. The graphic, salacious nature of what this applicant said, and did, if directed to a truly vulnerable 13 year old girl, would have carried serious potential to corrupt.
He accepts that the communications sent by him were unquestionably "extremely grotesque and deviant" given the age of the victims; that they occurred persistently over a significant period; and that they involved offers of financial inducement.
However, it is submitted that the lack of subterfuge (about the applicant's age or true identity), the lack of sophistication and pre-planning, the absence of any sexually explicit images being sent by the applicant, and the fact that the electronic communications did not result in any actual meeting with the victims, are all considerations that are also relevant to the issue of objective seriousness.
The applicant draws a distinction between the 'thrill-chasing' modus operandi, to which Rev Dr Powell referred, and his use of extreme language in his communications with the victims (on the one hand), and what he argues is the more objectively serious type of manipulative communication described by Hall J in Tector v R [2008] NSWCCA 151; (2008) 186 A Crim R 133 at [97] (Giles JA and Barr J agreeing) (on the other):
However, a communication that contravenes the section may be deliberately or strategically expressed in terms that propose a lower level of sexual activity in order to enhance the prospects of initially establishing a relationship between the sender and the recipient and/or to disguise an existing intention to engage in a more serious level of sexual activity than that proposed. In other words, what may be termed a "low level" of proposed sexual activity may be considered by a "sender" to be more effective in encouraging, enticing or inducing etc a child than one that blatantly conveys a high level of sexual activity.
[10]
Determination
In Mulato, Spigelman CJ stated (at [37]):
Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.
Simpson J in that case similarly said at [46]:
The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. …
The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. (my emphasis)
See also R v Fahda [2013] NSWCCA 86 at [4] per Simpson J.
No error has been demonstrated in her Honour's assessment of the objective seriousness of the offence.
Apart from the fact that her Honour did not err in not accepting that the applicant's relevant intention did not persist beyond the sending of the communications (for the reasons set out above), the assessment of the offending as being a high degree of objective seriousness was clearly open to her Honour for the reasons her Honour gave.
It is clear from Fuller that this is a serious offence whether or not the communications led to actual sexual activity. The fact that there was no meeting with the victims (and that CLT did not actually send the requested nude photograph) does not lessen the objective seriousness of the offence. It merely means that the potential harm is not greater than that contemplated by the offence itself. While I would not accept that the fact of there being no meeting has only peripheral relevance in the present case, it does not lead to the conclusion that there was error in the assessment of objective seriousness of the offence. There were (and were conceded to be) grossly sexual and indecent communications to teenage girls. The relevant harm lay in the impact of the communications themselves. Ground 2 is not made out.
[11]
Ground 3 - assessment of the applicant's prospects of rehabilitation
Ground 3 raises a complaint as to the assessment of the applicant's prospects of rehabilitation.
The applicant argues that there is an apparent "contradistinction" between the statement by her Honour that she had grave concerns as to the prospect of rehabilitation (at p 15) and her Honour's later statement that at this stage it was very difficult to assess the applicant's risk of re-offending (at p 16).
Complaint is also made by the applicant as to the statement by her Honour that she was not so persuaded (as to the applicant's prospects of rehabilitation) as to make a finding of special circumstances. It is submitted that the basis for the "apparent reservation that the primary judge had in accepting the unchallenged and uncontradicted expert evidence" (i.e., Rev Dr Powell's optimism as to the applicant's prospects of rehabilitation) was not made clear. The applicant again notes in this regard the positive observations made by the sentencing judge as to Rev Dr Powell's qualities as a witness.
The Crown submits that the findings by her Honour as to the applicant's prospects of rehabilitation were not contradictory. I agree. The holding of "grave reservations" about re-offending is consistent with the degree of risk of re-offending being difficult to assess. Rev Dr Powell himself accepted that there was a risk of re-offending (unless the offender engaged in an "evidence-based" treatment programme) (see [32] above). The Forensic Psychology Services Report identified a moderate-high risk of re-offending. It was clearly open to her Honour to reach the view she did in this regard.
It is further submitted by the applicant that her Honour erred in her treatment of the evidence in relation to the risk of re-offending and that the overall tenor of her Honour's comments relating to the applicant's prospects of rehabilitation is more akin to that which would be expected in relation to a recidivist offender. In this regard, the applicant points to the lack of any prior offences of a similar kind involving children or child abuse material and the absence of any other child abuse material on his digital devices or related offending conduct at the time of these offences. He takes issue with the suggestion that his prior "use carriage service" offence was of significance (as demonstrative of his lack of regard for the victims - see her Honour's reasons p 11) and argues that the primary judge did not place weight on his apology letter (and erroneously treated this as a case where there was no evidence from him).
[12]
Determination
No error has been established in her Honour's findings as to the applicant's prospects of rehabilitation.
The relevance attributed by her Honour to the previous use carriage service offence was (correctly) to note that it disentitled the applicant from receiving the benefit of being a first offender (Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477). That would be the case whether or not the offence involved a child (and in any event there was no misunderstanding by her Honour as to the circumstances of that previous offence).
As to the submission that the applicant's letter of apology ought to have weighed in her Honour's assessment of the applicant's prospects of rehabilitation, the Crown argues, and I agree, that the sentencing judge was entitled to give the letter such weight as her Honour considered appropriate, having regard to the absence of sworn evidence from the applicant. The evidence from Rev Dr Powell is hardly a resounding endorsement of remorse or contrition on the applicant's part (see [28] above).
Ground 3 is not made good.
[13]
Ground 4 - the overall sentence imposed was manifestly excessive
Finally, the applicant submits that, having regard to: the overall (admittedly very serious) objective criminality of the offending, the relevant subjective factors and the statutory purposes of sentencing, the sentence imposed is unduly harsh and therefore one that falls outside the proper sentencing discretion.
At the sentencing hearing, the applicant made submissions and provided material to the sentencing judge as to the Judicial Commission sentencing statistics for sentences imposed for offences contrary to s 474.26 of the Criminal Code between 01/10/2010 and 30/09/2015, and as to a number of cases which it was contended were comparable cases (see [54]-[86] of the first instance written submissions). (A table of comparable cases was attached to the appeal submissions, with updated statistics.)
The applicant submits that the sentencing judge's failure to avert to those materials, or to refer "even in general terms" to issues relating to current sentencing trends and the application of appropriate legal principles to ensure consistency of sentence when having regard to like cases throughout the Commonwealth (the applicant there referring to The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39), is significant.
The applicant points to four decisions which he submits demonstrate, by comparison, that the sentence is manifestly excessive: Tector; Hays (though he acknowledges that this case related to a state offence with a substantially lower maximum penalty - a distinguishing aspect to cases decided under the Queensland state legislation as recognised in Tector at [106]); Gajjar; and Fuller. I consider each in turn.
Tector involved a severity appeal in respect of the sentences imposed for three offences contrary to s 474.26(1) of the Criminal Code. The offender was found guilty after trial. He had sent emails and text messages, using a false name, to a 12 year old boy, over a period of 6 weeks, offering him money in exchange for sex. The offender had previous convictions for sexual offences involving children. At first instance the offender was sentenced to 11 years' imprisonment with a non-parole period of 7 years on each count. The appeal was upheld and the offender was resentenced to 8 years' imprisonment with a non-parole period of 5 years on each count, to be served concurrently. The Court held that the offences fell short of what would be considered to be the most serious type of offence under s 474.26(1) but said they were nonetheless offences involving grave criminality.
[14]
Determination
On a manifest excess ground, it is for the applicant to demonstrate that the sentence was "unreasonable or plainly unjust" (House v The King at 505; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [3]). Such a conclusion does not depend upon identifying specific error in the reasoning of the sentencing judge (Dinsdale v The Queen at [6]). It is not sufficient that an appellate court would have imposed a different sentence (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28]).
In Markarian v The Queen, the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) stated (at [27]):
As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
Similarly, in Hili v The Queen; Jones v The Queen Heydon J said (at [74]):
The circumstances of particular crimes and the "character, antecedents and conditions" of particular offenders are so various, the combinations in which they can occur are so numerous, and the relationship between these factors and the purposes which criminal sentences are to serve can be so impalpable, that the application to them of discretionary judgment permitting a range of legitimate outcomes is inevitable.
In The Queen v Pham, French CJ, Keane and Nettle JJ said at [28]:
(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.
(2) The consistency that is sought is consistency in the application of the relevant legal principles.
(3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
(4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
(5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
(6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.
(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.
[15]
Conclusion
I would grant leave to appeal but, for the above reasons, I am of the view that the appeal should be dismissed.
BELLEW J: I agree with Ward JA.
HIDDEN AJ: I agree with Ward JA.
[16]
Amendments
14 December 2018 - [114] 'contention' amended to 'contrition'
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Decision last updated: 14 December 2018
WARD JA: On 20 July 2015, the applicant, Aaron Michael Gifford, pleaded guilty in the Local Court at Campbelltown to two charges of using a carriage service to procure a person under 16 years for sexual activity, in contravention of s 474.26(1) of the Criminal Code Act 1995 (Cth). Each of those offences carries a maximum penalty of 15 years' imprisonment.
The applicant was sentenced in the District Court on 11 December 2015 to a term of 5 years and 7 months' imprisonment commencing 29 December 2014 for the first of the two offences and to a term of 5 years and 2 months' imprisonment commencing on 29 June 2015 for the second of the two offences, with a non-parole period of 3 years and 11 months commencing on 29 December 2014 and expiring on 20 November 2018. His non-parole period expires on 28 November 2018.
The applicant now seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentences so imposed. He relies on the following grounds of appeal:
1. Her Honour erred by rejecting the undisputed and unchallenged evidence of Dr Peter Powell relating to the applicant's apparent lack of intention to meet with the victims;
2. Her Honour erred in the characterisation of the objective seriousness of the subject offences;
3. Her Honour failed to properly assess the applicant's prospects of rehabilitation; and
4. The sentences imposed were manifestly excessive.
Grounds 1 and 3 go to the sentencing judge's findings of fact, in respect of which the recognition given by the High Court to the sentencing judge's responsibility in finding facts (see The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [1] per Gleeson CJ, Gaudron, Hayne and Callinan JJ) must be borne in mind. Grounds 2 and 4 go to the exercise of her Honour's sentencing discretion, as to which Simpson J (as her Honour then was) has emphasised (in Mulato v R [2006] NSWCCA 282 at [46]) is reviewable in this Court only on the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40.
The report refers to Rev Dr Powell's work (the nature of which is not particularised) beginning in the early 1980s, and continuing when he returned to Australia, in the area of male psychosexual dysfunction and domestic violence; and to his development of a group treatment programme for male sex offenders. It also lists a number of his publications (and other publications) as reference material.
Rev Dr Powell's oral evidence was that he administered some psychological testing in relation to the applicant (a personality assessment "looking for psychopathology and social dysfunction") (T 3.31-36) and was satisfied that the answers the applicant gave in relation to that testing procedure were truthful (T 3.45).
He was taken by counsel then appearing for the applicant to various paragraphs in his written report (though not to [40], to which I will refer in due course) and was asked questions about the content of those paragraphs. In the course of this, reference was made to [33] of his report where he described the applicant as a "fixated offender" rather than a "regressive offender". He explained the difference in the following way:
A fixated offender is somebody whose psychosexual development has got to a point around where the offending is occurring and it already hasn't progressed past that so that their preference, their orientation, their leaning tends to lean in towards that. They may well have other relationships that are moderately successful rarely very successful but they will be somewhat focussed back on that. So if they have got a relationship going they will probably be doing accessing, exploiting material around that age group somewhere.
A regressive offender is someone whose [sic] done a better job of working through that psychosexual stage, he's not so much fixated on it be able to make better adjustments to relationships later on but under stress and other conditions might regress back to that behaviour but will quickly go away from that behaviour, they're much more treatable and they are less likely to do child exploitive material but they will regress back to it under stress.
Whereas a fixated offender it's almost the thing they want to go to more often. That's the difference between the two. (T 6.24-41)
He said that a fixated offender was harder to work with because "their psychological profile is more disturbed and more fixated in an earlier stage of development" (T 6.47). In his report at [25] Rev Dr Powell said that the applicant had difficulty acknowledging or having insight into the criminal behaviour, but explained in his oral evidence that "[p]aradoxically, poor insight in the early stages [of treatment] indicates a strong avoidance of the issues of defence rather than necessarily indicating a man that cannot be treated successfully" (T 5.3). Thus he agreed that it gave him some comfort at this stage to see that the applicant did not understand the consequences and actions (because "the more fuzzy the better for me because if he knows what he's doing I've some real problems ahead" - T 5.28).
In the report (at [39]), Rev Dr Powell identified some indications of adjustment, schizotypal or personality disorders and he explained that some of the critical effects of those on the offending were that the applicant was a very "isolated and alone type of person" with reduced capacity for close relationships and whose self-awareness about psychosexual issues was fairly poor. He explained in oral evidence that typically such persons do not attach well, do not read empathy well and do not make relationships well, tending to be loners and isolated and to fall back into "self-destructing behaviour" (of which the applicant's gambling was given as an example) (T 8.32-9.8).
Rev Dr Powell considered that the "immature and bizarre 13 to 14 year old extreme language of rudeness … just sexualising everything" was an indication that the applicant had "been depressed and he's in deep trouble [in a psychological way]" (T 11.20-30).
He considered that the applicant was unusual in that there were very few people in his place that did not have "some exploiting material, whether adult or child on their computers" but went on to say "but his, I guess, modus operandi was this thrill of engaging the dialogue with these people who he, I think, correctly said I was never going to [meet]" (T 12.47-13.1). Rev Dr Powell went on to say that he found the applicant saying he was never going to meet them:
actually … quite believable, when the girl turned up he wasn't there. It's just the part of his addiction of thrill-chasing is to do all these exciting things and see if they can happen and then he never turns up, because I couldn't engage them anyway. So it's more some weird attempt to making a relationship work than it is to actually go into deviant pornography other behaviours. (T 13.1-7)
At T 14.15, asked about his view of the applicant's remorse and contrition, Rev Dr Powell said:
He certainly knows it was wrong and he's sorry he did it. ... I think his depression and personality struggles are so profound that it's a real struggle that kind of a motive [sic; scil, emotive] sense from him. I mean he can get the words coming out. And my sense was - and again I only had the two sessions in the gaol, I normally have four - was that he was giving me as much as he could honestly give emotionally at that time about it was wrong and I shouldn't have done it. How much he gets in touch with that full remorse that comes in time. But I think he's as remorseful and contrite as you could expect him to be at this time. (my emphasis)
Indeed, had the applicant given him a "detailed expression of remorse and an apology letter all neatly written out", Rev Dr Powell considered that would indicate "some sociopathic deviancy of how I can con people" (T 14.30 - 33).
What was not explored in oral evidence was the statement in Rev Dr Powell's report at [40] that:
Mr Gifford's [sic] states that he never intended to actually meet the girls he was contacting. While this would appear to be counter-intuitive it is actually consistent with his personality; that is, to engage in criminal behaviour, but lack the social ability to actually meet the person he is grooming.
The applicant notes that although the primary judge intervened from time to time in the course of the oral evidences to ask questions of Rev Dr Powell, her Honour did not do so in relation to the significance of the applicant not having proceeded to meet with one of the victims when the opportunity to do so presented itself. That said, as already noted, there was no questioning by the applicant's counsel of Rev Dr Powell as to the observation at [40]; the only indirect reference to this issue being the comment (extracted at [27] above) as to an addiction to thrill-chasing.
In his written report, Rev Dr Powell stated that treatment would be a difficult process for the applicant ([49]); that the applicant had difficulty integrating an understanding of what he believes he ought to do with what he has actually done and has a very immature idea of sexuality and intimacy ([50]); and that the applicant reveals a controlling way of interacting with and using people ([51]). He considered that information drawn from research, psychological testing, clinical interviews and practice "would indicate that Mr Gifford is a risk to repeat the criminal behaviour that is now before the court unless he continues to engage in evidence-based treatment" ([52]).
The applicant did not give evidence at the sentence hearing. A handwritten letter by the applicant was tendered (somewhat inconsistently with the opinion given by Rev Dr Powell as to the import of an apology of that kind - see [29] above). There was no objection by the Crown to the tender nor did the Crown seek to examine the applicant on the contents of the letter, in which the applicant stated that he accepted full responsibility for his offending behaviour and expressed his sorrow and remorse for the harm he had caused and his wish not to have acted in the manner he did. The letter also referred to his awareness that his sexual behaviour had caused emotional suffering to the young girls and their families.
Her Honour noted that the previous offence relating to use of a carriage service to menace, harass and offend was in relation to an adult and was not a similar offence; but considered that it demonstrated the applicant's lack of regard for the victims (at p 11).
Her Honour concluded (at p 12) that the objective seriousness of each offence was high. In this context, her Honour found that the applicant clearly knew the ages of the victims and that the conduct was illegal; noted that the applicant did not cease contact with the victims of his own accord; and described the applicant as a loner who has little insight and empathy and who clearly has psychological issues (at pp 12-13). Her Honour also had regard to the following matters: that the offences formed part of a course of conduct over a three-month period in relation to CLT and over one month in relation to MS; that the offence involved children of the age of 13-14; that the conversations were extremely sexualised and sexually explicit; and that the conversations also attempted to induce CLT to send a nude photograph of herself.
As to subjective features, her Honour noted that the applicant had entered into a plea of guilty at the earliest opportunity and said that the pleas may be considered as evidence of contrition, though expressing the view that this was a strong Crown case (as the applicant had used his own name, picture and phone) and that it was inevitable that he would be found guilty. Her Honour nevertheless allowed a 20% discount for the early plea (having noted that the utilitarian discount in New South Wales, identified in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, is not applicable in federal matters).
In light of the assessment by Rev Dr Powell of the applicant, her Honour had difficulty accepting, in the absence of evidence from the applicant, that he had any acceptance of responsibility or genuine remorse but did accept that he had a desire to rehabilitate himself and expressly took into account his co-operation with the authorities during the execution of the search warrant and the applicant's limited admissions (at p 14).
Her Honour considered that a fundamental consideration was the high degree to be accorded to the need for general deterrence for offences of this character (there stating again that the objective gravity of the offending was high) and that there was a need for specific deterrence (at p 14). Her Honour took into account a number of matters as to the applicant's subjective circumstances, including her acceptance that he suffers from adjustment disorder along with anxiety, depressed mood and has features of schizotypal personality disorder.
Her Honour noted that the applicant was not of prior good character, and hence was not entitled to any leniency as a first time offender, but that his prior criminal history did not aggravate the objective seriousness of the offence (at p 15).
As to the applicant's mental health, her Honour considered that his disorders were of limited assistance, saying that the medical evidence did not elevate his disorders in such a way that they actually contributed to the commission of the offence and was not satisfied that the applicant's state of mental health reduced his moral culpability (referring to Hammond v R [2008] NSWCCA 138 at [32]-[34] and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 and the cases there referred to at [177]) (at p 15).
Her Honour expressed grave concerns about the applicant's prospects of rehabilitation, referring to Rev Dr Powell's description of him as a fixated offender and that such an offender was harder to treat. Her Honour accepted the willingness of the applicant to engage in Rev Dr Powell's counselling programme, which gave her Honour some comfort that he may be rehabilitated, and accepted that his family would support him through any rehabilitation. Nevertheless, it was her Honour's view that it was very difficult at this stage to assess the applicant's risk of re-offending (at p 16).
Her Honour was satisfied that imprisonment was the only appropriate sentence and did not believe that rehabilitation treatment in this case warranted a finding of special circumstances (at p 16). Her Honour then proceeded to sentence the applicant as earlier noted.
Since the gravamen of the offence is the transmitting of communications together with the intention to procure the recipient to engage in sexual activity with the sender, the Crown argues that whether or not the applicant actually intended to meet the victims of the offences was of peripheral relevance and was not a significant matter in determining the objective seriousness of an offence under s 474.26(1) of the Criminal Code.
The applicant contests this and argues that it was both relevant and significant, in assessing the objective seriousness of his offending, that Rev Dr Powell accepted as credible the applicant's statement that he did not actually intend to meet with his victims.
I turn then to the grounds of appeal.
The applicant submits that the sentencing judge erred, when stating that she did not accept that the applicant would not have met with the victims and did not accept that the applicant committed the offences for the thrill of the chase.
The applicant does not dispute that he was "at some stage for the relevant period" seized of an actual intention to engage in sexual activity with the complainant (AT 2.38-40). However, he submits that it is relevant, in assessing the objective seriousness of his criminal conduct, to consider whether that "threshold level of intention" persisted and whether there was a resolve actually to go through with proceeding to meet with the victims and act upon that resolve. That is because it is said this goes to the risk of harm to which the complainants were exposed.
The applicant characterises the perceived error on her Honour's part in various ways: as a failure to provide his representative with an opportunity to address on this point; in failing to question Rev Dr Powell so as to test the veracity of his acceptance of the applicant's claim not to have intended actually to meet with the victims; and/or in "summarily disregarding" Rev Dr Powell's "uncontested expert opinion" because the applicant did not give evidence. In essence, the complaint here made is one of a denial of procedural fairness (though not put as such in the grounds of appeal).
The applicant argues that the reasons given by her Honour for rejecting the submissions as to lack of intention actually to follow through with meeting the victims and as to the communications being for the "thrill of the chase" (namely that he did not give evidence and that cessation of the communications was not by him) amount to "an oversimplification".
In that regard, the applicant notes, first, that Rev Dr Powell gave evidence that the psychological testing that he administered contained parts of the test that looked for "inconsistencies and validities", as a result of which he was satisfied that the answers given by the applicant were truthful (see T 3.36-47). He notes that this evidence was not challenged by the Crown, nor was there any further explanation or clarification "as to the limits of its [presumably a reference to Rev Dr Powell's evidence as to this aspect of the testing] applicability" to the issue as to the applicant's specific intention sought by her Honour during the course of Rev Dr Powell's evidence.
Second, the applicant argues that Rev Dr Powell's opinion (presumably referring to his acceptance of there being a lack of intention actually to meet the victims and that the communications were for the "thrill of the chase") had an evidentiary basis that was in no way dependent on "self-serving representations" made by the applicant during the interview process (referring to the Crown's submissions at the time of sentencing - [22]); that evidentiary basis being the absence of any sort of child abuse material on his digital devices and the fact that, "even when apparently presented with an opportunity to meet with the victim in relation to count 2", he did not do so.
In both written and oral submissions, the applicant accepts that it was open or "probably" open to the sentencing judge to reject Rev Dr Powell's opinion on this issue, though he points out that her Honour had described Rev Dr Powell (at p 8) as "an impressive and frank witness".
Inconsistently with that submission, the applicant then submits that it was not open to her Honour to reject the above aspects of Rev Dr Powell's "unchallenged expert opinion" (citing Hone v Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138; R v Klamo (2008) 18 VR 644; [2008] VSCA 75; and Goodridge v R [2014] NSWCCA 37); particularly insofar as her Honour was not apprised of any relevant factual information beyond that available to the expert witness in the formulation of his opinion (cf Goodridge at [116] per Hoeben CJ at CL, Simpson and Johnson JJ agreeing).
The applicant submits that in the circumstances her Honour was required properly to set out the reasoning underpinning the rejection of Rev Dr Powell's opinion on the issue of his lack of intention to meet with the victims and, by inference at least, complains as to the adequacy of her Honour's reasons in that regard.
The applicant relies on the principles summarised by Johnson J in R v Rodriguez [2010] NSWSC 198 (at [45]):
... Juries (and Judges sitting alone) are not bound to accept and act upon expert evidence, but they are not entitled to disregard it capriciously: R v Hall (1988) 36 A Crim R 368 at 370; R v Klamo [2008] VSCA 75; (2008) 18 VR 644 at 655 [44]. A jury (or Judge sitting alone) ought not reject unanimous medical evidence unless there is evidence which can cast doubt upon the medical evidence: Hone v Western Australia [2007] WASCA 283; (2007) 179 A Crim R 138 at 146-148 [124]-[126]; R v Klamo at 644-645 [44]-[50].
and to his Honour's judgment in R v PCB [2012] NSWSC 482.
Reference is also made to Heath v R [2016] NSWCCA 24, where McCallum J (Simpson JA and Johnson J agreeing) held that the primary judge had erroneously rejected undisputed and unchallenged evidence relating to an important aspect of the overall assessment of the objective seriousness. There, her Honour was addressing a submission that, where the Court is considering rejecting unchallenged evidence (for example on the basis that it is inherently improbable), the witness must be afforded an opportunity to address that proposition and that, if that proposition is not put to a witness by the opposing party, it is the duty of the judge to put the assertion to the witness before rejecting the evidence.
McCallum J, having referred to what was said by Basten JA in O'Neil-Shaw v R [2010] NSWCCA 42 (at [27]; Howie and Johnson JJ agreeing at [40] and [41]), said:
It must accordingly be accepted that, in the criminal context, there will be occasions when it will not be appropriate for the sentencing judge to let a matter pass as an accepted fact merely on the basis that the Crown has chosen not to challenge a witness about that fact. Conversely, however, the stakes are high in the case of criminal proceedings. Where a person faces the prospect of a custodial sentence, the content of the duty of procedural fairness is not less than in the case of a civil claim.
In the present case, the applicant submits that, to the extent that the termination of contact by both victims (as opposed to voluntary cessation of communications by the applicant) was a factual matter that may have influenced the degree of confidence in Rev Dr Powell's opinion as to the applicant's lack of intention to meet the victims, this should have been raised with Rev Dr Powell during his evidence or, at the very least, the applicant should have been given an opportunity specifically to address her Honour on the issue in submissions.
The applicant also suggests that the tendering of his handwritten letter of apology can be treated in the same way that the affidavit tendered at the sentence hearing (but not challenged in cross-examination) was treated in Heath, i.e., that this was not a situation where he had "chosen not to expose himself to cross-examination at the proceedings on sentence" (see Heath at [47]-[48]). The applicant accepts that his handwritten letter to the Court did not have the formality of a sworn affidavit but says that the Crown did not take issue with it on that or any other basis; and notes that it would have been open to the Crown to require him for cross-examination in relation to the tender of that letter.
Although not identified as a separate ground of appeal, the applicant also takes issue with statements by the sentencing judge as to the applicant's lack of insight into his criminal behaviour: first, in her Honour's remarks on sentence at p 6 to the effect that Rev Dr Powell gave evidence "that one of his concerns" was that the applicant had difficulty acknowledging or having insight into his criminal behaviour; second, at p 7, that Rev Dr Powell's statement as to the applicant's propensity to want to share the responsibility with the girls was of some concern; third, at p 9, that the applicant's "lack of empathy to the children" was of some concern; and fourth, at p 13, that the applicant had "attempted to shift the blame" to the victims. The applicant's complaint is that those remarks were made without reference to Rev Dr Powell's opinion that the applicant's lack of insight was "a matter of some comfort at this stage" and could be viewed as positive in terms of his potential responsiveness to intensive treatment of the kind offered in Rev Dr Powell's counselling programme.
Complaint is also made that the remarks on sentence do not disclose how, if at all, the above observations interacted with the sentiments of genuine remorse and acceptance of responsibility conveyed in the applicant's handwritten letter (which it is submitted should properly be treated as unchallenged evidence in the proceedings). In particular, the applicant contends that neither the absence of (sworn) evidence from him nor Rev Dr Powell's assessment of him provided a proper foundation for the sentencing judge to deal with Rev Dr Powell's evidence as her Honour did (referring to her Honour's finding that it was difficult to accept that the applicant had any acceptance of responsibility or genuine remorse - at p 14).
The applicant argues that the issue as to whether the applicant "actually intended to follow through with meeting with one or both of the victims" was relevant to the overall assessment of his objective criminality (referring to R v Fuller and the authorities there cited at [42]-[44], including Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310; R v Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76 and Director of Public Prosecutions (Cth) v Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69; and referring also to R v Poynder [2007] NSWCCA 157; (2007) 171 A Crim R 544; and R v Hays [2006] QCA 20; (2006) 160 A Crim R 45).
The applicant submits that the error identified in ground one, when considered in light of the impact of the issue as to a sustained intention actually to meet with the victims on the assessment of overall objective seriousness, caused the sentencing process to miscarry. (In the alternative to the primary orders sought by the applicant, it is submitted if this Court were only to find error of the kind complained of as part of ground 1, then the appropriate order may be one of remitter to the District Court for resentencing, the applicant there referring to the discussion in Heath at [50]-[51] and [75]-[76].)
The Crown submits that, in exercising caution before giving weight to the statements of Rev Dr Powell, her Honour was applying the principles set out in R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369; R v Palu [2002] NSWCCA 381; (2002) 134 A Crim R 174 at [39] - [41]; and R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31 per Bathurst CJ, Johnson J and R A Hulme J at [124]. In particular, the Crown points to what was said in Qutami at [58]-[59] by Smart AJ (Spigelman CJ and Simpson J, as her Honour then was, agreeing):
There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements. (my emphasis)
There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.
The Crown notes (and indeed the applicant here seems broadly to concede), that a sentencing court is not bound to accept unchallenged evidence (referring to Reberger v R [2011] NSWCCA 132 at [48]).
The Crown argues that there was a significant amount of evidence that contradicted Rev Dr Powell's opinion that the applicant had no apparent intention to meet with the victims, pointing to the content of the communications from the applicant (as summarised earlier in these reasons).
Be that as it may, even though the parties appear to have proceeded on the basis that Rev Dr Powell was suitably qualified to express the opinions that he did, the sentencing judge was not bound to accept them notwithstanding that they were unchallenged. Nor was her Honour bound to accept all of what Rev Dr Powell said notwithstanding his frankness and impressive quality as a witness.
When determining what weight should be accorded to an expert's opinion, it is relevant to consider the process of reasoning by which those opinions were formed (see Australian Securities and Investments Commission v Rich [2005] NSWCA 152; (2005) 218 ALR 764 where, albeit in a different context, Spigelman CJ referred to the need for an expert to expose his or her process of reasoning by which the expert opinion was formed).
Reading Rev Dr Powell's report, he attributes the conclusion that the applicant did not intend actually to meet the victims largely to the statement by the applicant (made some time after the event) to that effect. He draws support for this conclusion from his confidence in the personality assessment testing to assess the truthfulness of the applicant's answers and from the absence of child exploitation material on the applicant's digital devices and the fact that the applicant did not go to Parramatta to meet MS. Rev Dr Powell seems to have concluded, based on this (and the immature and extremely sexualised language used in the communications) that the applicant was not capable of engaging with the victims and thus would not have attempted to do so.
It does not necessarily or logically follow that a social inability to engage means that there would be no attempt to do so. Indeed, such a conclusion would appear to attribute a greater degree of insight into the applicant's behaviour than Rev Dr Powell attributes to the applicant. Nevertheless it seems to be from that, and the fact that in relation to MS there was a meeting arranged which the applicant did not attend, that Rev Dr Powell draws the conclusion that it was the addictive "thrill of the chase" that must have motivated the applicant and that this was his "modus operandi".
I see no error in the sentencing judge not being prepared to accept (in the absence of sworn evidence from the applicant) the broad generalisations made by Rev Dr Powell as to what he thought must have motivated the offending communications and whether the applicant would ever actually have acted upon them. The basis for those conclusions is not adequately identified in the report or the oral evidence. The tenor of Rev Dr Powell's evidence on the issue now emphasised by the applicant is (at least by reference to the transcript) almost an aside (see the reference to "I guess" his "modus operandi") or as an explanation in hindsight as to why, notwithstanding the communications, there was no actual meeting with the victims (see [27] above). Nor, relevantly, was Rev Dr Powell taken to [40] of the report when giving his oral evidence. Her Honour was entitled to assume that the applicant's counsel would explore the basis for any of the opinions of his so-called expert witness on which reliance was to be placed. That the primary judge accepted other aspects of Rev Dr Powell's evidence, and intervened to question him on other matters, is not to the point. Her Honour had no obligation to run the applicant's case for him in that regard.
It cannot be that her Honour was obliged to alert the applicant's legal representatives in advance to the prospect that she might not accept some or all of the so-called expert's opinions or might not place the weight on them which the applicant now contends they bore. That is the case in relation to any expert's evidence. In that regard, the evidence as to the lack of exploitative material on the applicant's digital devices was put forward at the start of the examination of Rev Dr Powell apparently in an attempt to support the proposition that the applicant's preference "really lay up the older age and scale" and this was just a crime of opportunity (see [57] above; see also the submissions extracted at [59] above). What was submitted was that "part" (not all) of the satisfaction gained from the communications was the act of communication ([58] above); whereas the contention now seems to be this was the whole of the thrill for the applicant.
Insofar as it is suggested that what her Honour was obliged to do was to make known her intention to reject Rev Dr Powell's opinions (or more accurately perhaps, the generalisations) in question, that begs the question as to when her Honour formed the view as to the concerns expressed in her ultimate reasons.
Heath was a very different case. There, the issue was as to the Court's rejection of the applicant's unchallenged affidavit evidence that he did not know that his conduct (involving market manipulation) was unlawful, in circumstances where it was an agreed fact that throughout the relevant period he "knew or should have known" of the prohibitions against market manipulation (an agreed fact the expression of which this Court considered to be ambiguous). Here, the unchallenged evidence was no more than the proffering of an opinion as to the veracity of assertions (not made on oath) by the applicant and as to a possible explanation for his conduct.
The tendering of a letter of apology cannot be treated in any sensible way as analogous to the giving of sworn evidence. Ironically, Rev Dr Powell himself suggested that such an apology might be seen as the product of some "sociopathic deviancy" (see [29] above). The applicant's legal representatives must be taken to have understood the caution with which such a letter of apology was likely to be treated (in light of what was said in Qutami as to this practice).
In my opinion her Honour adequately explained her reasons for not accepting Rev Dr Powell's opinion as to the applicant's lack of intent to meet the victims and as to the thrill of the chase, was not bound to accept those opinions, and did not deny the applicant procedural fairness as now alleged.
Ground 1 is not made out.
As to the additional matters raised by the applicant as being relevant to the finding of objective seriousness, the Crown submits that: the lack of subterfuge about the applicant's age or true identity is not significant (and is consistent with the applicant intending to meet the victims and thus telling the victims what to expect when they met); in relation to the suggested lack of sophistication and pre-planning, it is relevant to note that the applicant looked for the victims online and contacted them, requesting secrecy at all times and offering them substantial sums of money; and that he did not send any sexually explicit images is irrelevant (the Crown noting that the applicant sought a sexually explicit image from CLT and that his conduct was the extremely sexualised and explicit conversations he had with the victims).
Hays was a severity appeal involving two offences contrary to s 218A of the Criminal Code 1899 (Qld) (namely, using the internet with intent to procure a person the offender believed was under 16 years of age to engage in a sexual act) and two offences contrary to s 218A(2)(b) of that Act (using the internet with intent to expose a person the offender believed was under 16 to indecent matter). The offender had used an internet chat room to engage the victim, a police officer posing as a 13 year old girl, in sexually inquisitive and explicit discussion including instructions on how she should masturbate. The offender pleaded guilty to an ex officio indictment.
The maximum penalty in relation to an offence under the Queensland legislation was 5 years' imprisonment for a child under 16, and 10 years' imprisonment for a child under 12 (as opposed to the Commonwealth offence where the maximum penalty is 15 years' imprisonment). At first instance the offender was sentenced to 18 months' imprisonment, to be suspended after 3 months. The severity appeal was dismissed.
The third "comparable" case relied upon by the applicant is Fuller. This was a Crown manifest inadequacy appeal that involved one offence contrary to s 474.26(1) of the Criminal Code. The offender was a priest who encouraged his victim, a police officer posing as a 13 year old girl, to masturbate herself. He also transmitted a video of him masturbating via webcam, and arranged to meet with the victim. At first instance the offender was sentenced to 6 months' imprisonment. By the time the appeal was heard the original sentence had expired. The respondent was resentenced to 18 months' imprisonment to be released on recognizance after 6 months (that being the term of imprisonment that had already been served).
Finally, Gajjar was again a Crown appeal on the basis of manifest inadequacy. The offender pleaded guilty at a relatively early stage to one charge of an offence contrary to s 474.26(1) of the Criminal Code. The offender had used an internet chat room to engage the victim, who was an undercover police officer posing as a 14 year old girl, in conversations involving "explicit and salacious language in describing what he had in mind for her". The offending occurred over two days. A meeting was arranged and attended by the offender. The offender was 28 years old, married with one child and of previous good character. At first instance he was sentenced to 2 years 6 months' imprisonment to be released on recognizance after 8 months. There was no error in the sentence and the appeal was dismissed.
The applicant concedes that the subject offences were very serious and that they were deserving of a sentence that reflects the community's total reprobation towards such conduct. However, the applicant submits that the starting point adopted by her Honour for each offence (7 years for count 1 and 6.5 years for count 2) resulted in an overall sentence that was manifestly excessive.
Reliance is placed on updated Judicial Commission statistics indicated for the period of 1 July 2011-30 June 2016, from which the applicant derives the following: that 67% of offenders were sentenced to full-time imprisonment; of those who were sentenced to full time imprisonment, 68% were sentenced to a head sentence of 30 months' imprisonment or less and the most prevalent head sentence was 24 months imprisonment (which was imposed on 39% of offenders); and that, in relation to offenders who had prior offences, a non-parole period of 12 months or less was imposed for 53% of those offenders (though the applicant notes that the statistics do not specify whether or not the prior offences involved sexual misconduct with children).
The applicant draws from the above that he has received the fifth longest non-parole period for all offenders sentenced for the subject offence in the reporting period of July 2011 to the end of June 2016. During the primary sentence proceedings, the applicant's legal representative submitted that an appropriate sentence could involve the time that the applicant had served in pre-sentence custody for the subject offences (approximately 11 months) with the balance of the sentence to involve "a very long recognizance" whereby the client would undertake the intensive, community-based sexual offenders rehabilitation programme facilitated by the Rev Dr Powell (12/11/15, T.33-36). Complaint is made that, prior to delivering judgment, her Honour did not provide any indication to the parties that she was inclined not only to reject that submission but to impose a sentence with a non-parole period that was more than four times longer than that which had been submitted on behalf of the applicant as potentially appropriate.
The applicant submits that his positive (and, it is said, uncontested) subjective factors, including Rev Dr Powell's confidence in achieving successful treatment, the applicant's degree of recognition of his unaddressed issues, his expressions of contrition and remorse through his apology letter, the absence of any prior matters of deviancy involving children, and his early plea of guilty, lend support to the conclusion that the sentence imposed was plainly unjust or unreasonable.
In response, the Crown argues that the applicant did not present a strong subjective case. In particular, the Crown points to the sentencing judge's assessment of matters such as the difficulty in accepting that there was genuine remorse.
The Crown notes that care must be taken as to what use is made of other cases in the sentencing process, noting that while Courts must have regard to what has been done in other cases in seeking consistency of sentencing (Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]; Director of Public Prosecutions (Cth) v De La Rosa), in Barbaro v The Queen; Zirilli v The Queen, a majority of the High Court said at [41]:
Other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect... the synthesis of the "raw material" which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.
The Crown argues that the applicant's reliance on the sentencing statistics does not establish manifest excess, noting that the Commonwealth Sentencing Database is a source of relevant information about the pattern of sentencing for federal offences but also notes that in The Queen v Pham Bell and Gageler JJ stated at [49]:
Statistics have a role to play in fostering consistency in sentencing, and in appellate review, provided care is taken to understand the basis upon which they have been compiled [see Knight v R [2015] NSWCCA 222 at [3]-[13] per RA Hulme J] and provided the limitations explained in ... Barbaro ... are observed. The value of sentencing statistics will vary between offences. It is not meaningful to speak of a pattern of past sentences in the case of offences which are not frequently prosecuted and where a relatively small number of sentences make up the set. (my emphasis)
The Crown submits that the fact that a particular sentence is, by reference to statistics, the highest imposed for a single instance of particular offending does not necessarily demonstrate that the sentence is unduly harsh (referring to Jolly v R [2013] NSWCCA 76; (2013) 229 A Crim R 198 at [75]) and notes that in the present case there have been several instances where higher sentences were imposed than the sentences imposed on the applicant.
In the present case, I am not persuaded that the sentences were plainly unreasonable or unjust. The starting point adopted by her Honour is consistent with Tector when one appreciates that, in that case, there was no discount for a guilty plea.
Her Honour weighed the relevant subjective factors and imposed a sentence that was within a range of legitimate outcomes. Ground 4 is not made good.