Kristensen v R

Consideration

It was common ground on the appeal that the sentencing judge did not have regard to the utilitarian value of the applicant's guilty plea and thus there was a material error made by the sentencing judge: Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1. The offender must be re-sentenced by this Court: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
In re-sentencing, this Court is bound to consider the matters required by Part 1B of the Crimes Act 1914 (Cth). The guiding principle in that exercise is that the Court must impose a sentence appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act. Part 1B is not "an exhaustive statement of the will of the Parliament with respect to sentencing for federal offences": Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 at [53] per Gummow and Heydon JJ (Callinan J agreeing).
In re-sentencing the applicant I proceed on the basis of the uncontested facts found by the sentencing judge and take into account all of the matters identified in s 16A(2) of the Crimes Act, to the extent they are known.
This case involves one "rolled up" charge and all of the conduct encompassed in the charge must be taken into account. The advantage to the applicant is that the use of a rolled up charge restricts the maximum available sentence to that prescribed by the legislation for the single offence, rather than the total theoretically available maximum sentence from multiple charges. The whole of the conduct of the applicant, including all of the conduct encompassed in the rolled up charge, is relevant to the necessity for general deterrence and, in that respect, to the assessment of totality: R v Glynatsis [2013] NSWCCA 131; (2013) 230 A Crim R 99 at [68] per Hoeben CJ at CL with whom Rothman and McCallum JJ agreed.
The offence is a serious one. The Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010, which introduced s 474.27A(1) of the Criminal Code, made clear that the section was intended to fill a gap in the law relating to the exploitation of children. It treats indecent communications with a child, conducted via a carriage service, as criminal, even if the person communicating the indecent material has no intent to groom or procure that child for sex. The maximum penalty of 7 years imprisonment for this offence and the need to ensure adequate punishment are important considerations in imposing a sentence in this case: s 16A(2)(k) of the Crimes Act.
The uncontested facts are set out at [3]-[4] above. It is not necessary for the purposes of re-sentencing to set out in any more detail the content of the communications between the applicant and the young girls who are the subject of the charge, save to record that the applicant's conduct with each of the girls involved repeated attempts to sexualise the communications by, for example, asking the girls about the extent and nature of their sexual experience. The applicant's serious criminality involved a course of conduct extending over at least eight months involving numerous victims in different locations. The content of the applicant's online chats was, as the sentencing judge found, highly offensive. The chats were grossly inappropriate. The applicant knew the ages of the girls involved and knew that what he was doing was wrong, but he persisted regardless.
This is a case where general deterrence looms large: s 16A(2)(ja) Crimes Act and R v Linardon [2014] NSWCCA 247. These types of offences can have a profound impact upon victims who are vulnerable due to their young age. There is intrinsic harm caused by indecent internet communications with children even if the repercussions upon a particular child do not become apparent immediately. In addition, the difficulty of detecting this type of offending behaviour, and the need to protect children and young persons from online predators, means that general deterrence is of great importance. I am satisfied that no sentence other than full time custody is appropriate in this case: s 17A Crimes Act.
In re-sentencing the applicant, the following matters are also relevant: 1. the applicant has no prior convictions, save for an irrelevant driving offence; 2. the applicant made very early admissions to police, including as to matters which the police might not otherwise have discovered; 3. there was no attempt by the applicant to disguise his offending. He used e-mail and other accounts in his own name or initials and he disclosed his age to his victims; 4. caution must be exercised in accepting the applicant's explanation to the psychologist that there was a progression in his online activities from attempting to make contact with adult females, which was a consequence of his social inadequacy, isolation, immaturity and curiosity. As the sentencing judge noted, the applicant lacked insight into the impact of his offending behaviour upon the victims and the community. The applicant had not, and still has not, undertaken any counselling to address the issues that led to his offending behaviour. His reported feelings of self-loathing during the period of offending did not prevent him from offending; and 5. the consequences to the applicant of his offending, quite apart from his incarceration, were significant in that he lost his job and his wife left Australia for a time, taking their child with her.
There is also a need for specific deterrence in this case, at least to some extent: s 16A(2)(j) Crimes Act. This is not a case where it can be found in the offender's favour that there is no risk of his reoffending. I take into account the fact that no steps were taken prior to sentencing by the offender to undergo appropriate counselling. This is of concern given his failure to demonstrate insight into the impact of his behaviour upon the children involved in the communications, rather than just the effect on himself and his family and friends. I have also taken into account on this issue the fact that relevant counselling has not been available whilst in prison.
As to the nature and circumstances of the offence, required to be taken into account under s 16A(2)(a) of the Crimes Act, a striking feature is the age disparity between offender, who was aged 32 or 33 at the time of the communications, and the victims, who were aged between 11 and 15. The nature of the communications shows that the applicant engaged in highly sexualised conversations with a number of young girls, having first established that they were between 11 and 15 years of age.
In relation to the matter identified in s 16A(2)(m) of the Crimes Act, the age, character antecedents and background of the offender, I find that the applicant is a person of otherwise good character. Whilst it is true that these types of offences are often committed by persons of otherwise good character, the offender is nonetheless entitled to have his good character taken into account. At the time of his sentencing, October 2017, the applicant and his wife had separated and she had returned to her home in China with their child. She has since returned to Australia and visits the applicant regularly in prison.
In relation to s 16A(2)(n) of the Crimes Act, a positive conclusion about the applicant's prospects for rehabilitation is difficult to make. Whilst the psychologist's evidence that he is unlikely to reoffend was not directly contradicted by evidence from the Crown, in the absence of evidence from the applicant I would give the psychologist's evidence little weight. The applicant's anxiety and feelings of inadequacy, as well as his social isolation and apparent lack of a support network, has the effect that I am unable to make a positive finding that he is unlikely to reoffend. I would conclude, however, that he has some prospects for rehabilitation, based on the affidavit evidence of the applicant led on re-sentence which was not challenged by the Crown. In that affidavit, the applicant stated that he "regret[s] horribly the offences that [he] committed".
In relation to the matters identified in ss 16A(f) and (g) of the Crimes Act, the offender is entitled to considerable credit for his early admissions to the police and entry of a guilty plea at the first available opportunity. Xiao establishes that the offender is entitled to a discount for the utilitarian value of the plea. I would allow a 25 per cent discount to take account of these matters. I reject the Crown's submission that the sentencing judge should "necessarily" be taken to have already granted a 25 per cent discount for the plea of guilty in fixing the sentence originally imposed. Her Honour certainly did not say that this was what she was doing. The language used by the sentencing judge makes such a conclusion untenable. I do not regard the submission that it was "highly likely" that the sentencing judge commenced with a notional starting point of 28 months imprisonment before discount as persuasive. I can find no basis for such a conclusion in the sentencing judge's reasons.
In relation to co-operation with law enforcement, s 16A(2)(h) of the Crimes Act, the applicant's co-operation with law enforcement is also to be taken into account in his favour. This is not, however, a case where a separate discount of the kind addressed in R v Ellis (1986) 6 NSWLR 603 arises. The applicant admitted to other conduct which included sending naked photographs of himself and receiving photographs of naked children (which may have amounted to child abuse material offences), however he was not charged or sentenced in respect of any such matters.
There are two remaining issues in this case which need be addressed: 1. reporting requirements under the Child Protection (Offenders Registration) Act 2000 (NSW), and 2. consideration of the risk of deportation in relation to sentencing.
As to the first issue, it was common ground that the Child Protection Act applies, as s 474.27A of the Criminal Code is a "Class 2 offence" and thus a "registrable offence" pursuant to s 3 of the Child Protection Act. The applicant is thus a "registrable person" under s 3A of the Child Protection Act and must comply with the reporting obligations under the Act for 8 years: s 14A(1)(a) of the Child Protection Act. This reporting obligation arises automatically upon the applicant being sentenced and no separate order is required to be made by the Court. The applicant's name and details will be entered into the Child Protection Register: s 19 of the Child Protection Act. The fact that the applicant is subject to reporting obligations and that his name will be included on the Register are not matters that may be taken into account in mitigation of sentence: Sabel v R; R v Sabel [2014] NSWCCA 101; (2014) 242 A Crim R 49 at [209].
As to the second issue, deportation, as the applicant is a noncitizen, it was common ground that the Minister for Immigration and Border Protection is required to cancel the applicant's visa. This is because the applicant will be deemed to not meet the character test under the Migration Act 1958 (Cth), on the ground that either the applicant has a "substantial criminal record" or he has been convicted of a "sexually based offence involving a child": s 501(3A)(a) of the Migration Act. The decision to cancel the applicant's visa is mandatory and automatic, although the applicant may apply to have the Minister's decision revoked: s 501CA of the Migration Act. It was common ground that there was no evidence about the making or outcome of any application to the Minister to revoke the cancellation of the applicant's visa.
In The Queen v Shrestha (1991) 173 CLR 48; [1991] HCA 26 it was established under the then-existing sentencing regime that a non-citizen who committed a serious offence should properly be the subject of an order for release on parole. That outcome is now provided for in s 19AK of the Crimes Act 1914 (Cth) which states: "19AK Possible deportation no impediment to fixing non-parole period Where a person is convicted of a federal offence, a court is not precluded from fixing a non-parole period in respect of the sentence imposed for that offence merely because the person is, or may be, liable to be deported from Australia."
In R v Mirzaee [2004] NSWCCA 315, Kirby J (with whom Sperling J and Newman AJ agreed) held: "[21] Where an offender would otherwise qualify for a finding of special circumstances, because it is recognised that he or she would benefit from a longer than usual period of supervision, then such a finding should be made. The sentencing Judge should not refrain from such a finding because it is believed likely that the offender may be deported at the end of the non-parole period, and that supervision therefore would not be provided in Australia."
In R v Van Hong Pham [2005] NSWCCA 94, Wood CJ at CL (with whom Hislop and Johnson JJ agreed) said: "[13] It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumetan and Murwanto [2003] NSWCCA 70. Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v The Queen (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ."
In AC v R [2016] NSWCCA 107, Schmidt J (with whom Bathurst CJ and Wilson J agreed) said: "[79] It appears that the applicant is at risk of deportation once his sentence is served. This was not a relevant consideration on sentence, even in fixing the applicant's non-parole period. Deportation is a matter for the Executive Government (see R v Van Hong Pham [2005] NSWCCA 94 referring to Shrestha v The Queen [1991] HCA 26; (1991) 173 CLR 48)."
In 2010, the Victorian Court of Appeal considered that the prospect of an offender being deported upon completion of the custodial portion of his or her sentence was a proper matter for consideration in determining an appropriate sentence: Guden v R (2010) 28 VR 288; [2010] VSCA 196 at [25]-[29]. The Court held that, subject to the state of the evidence, deportation could be relevant as a mitigating factor in two ways: 1. it may mean the burden of imprisonment will be greater for that individual rather than for someone who faces no such risk; and 2. in an appropriate case, it will be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia.
Guden proceeded on the basis that the risk of removal from Australia must be assessable rather than merely speculative before it may be taken into account by way of mitigation: "[29]…That is, in the absence of evidence or an appropriate concession by the Crown, there will be no error in a judge declining to take into account the possibility of deportation. Indeed, in order properly to assess the weight to be given in any particular case to a risk of deportation, evidence would be required sufficient to permit a sensible quantification of that risk to be undertaken. It would also be necessary for a prisoner to demonstrate that deportation in his/her case would in fact be a hardship."
In R v Schelvis; R v Hildebrand [2016] QCA 294; (2016) A Crim R 1, Fraser JA helpfully summarised the position in Queensland, by reference to the relevant New South Wales, Victorian and Western Australian decisions: "[72] Guden has been consistently followed in subsequent Victorian decisions: see, for example, Konamala v The Queen [2016] VSCA 48 at [33]-[36], Da Costa v The Queen [2016] VSCA 49 at [24]-[26] and Schneider v The Queen [2016] VSCA 76 at [24]-[26]. I note that in Western Australia it has been held that the prospect of deportation at the conclusion of an offender's sentence is not of itself a relevant consideration in the exercise of the sentencing discretion: Dauphin v The Queen [2002] WASCA 104 at [22] Houghton v Western Australia [2006] WASCA 143; (2006) 32 WAR 260 at [23], Cohen v Western Australia (No 2) [2007] WASCA 279; (2007) 180 A Crim R 348 at [21], Ponniah v The Queen [2011] WASCA 105 at [48] and Hickling v The State of Western Australia (in which Guden was discussed and not followed) [2016] WASCA 124 at [9]-[11], [48]-[60]. I also note that in New South Wales it has been held that the prospect of an offender being deported is generally to be disregarded in formulating the sentence: R v Latumetan and Murwanto [2003] NSWCA 70 at [19], [45], R v Van Hong Pham, R v Mirzaee, and Ali v R [2014] NSWCCA 45 at [1], [47], [51]. I do not propose to analyse those cases or to investigate the position in other jurisdictions. No submission was made upon that topic. The respondent joined with Schelvis in submitting that this Court should apply this aspect of the reasoning in Guden, including the requirement that the risk of removal from Australia be assessable rather than merely speculative before it may be taken into account by way of mitigation. I proceed upon the footing that the applicable law is as set out in the preceding paragraph." (references added from footnotes in original)
None of these cases specifically considered the amendment to s 501 of the Migration Act inserting s 501(3A) and the addition of s 501CA of the Act. Both of these provisions were inserted in 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). The Crown drew attention to these changes in the statutory framework and to the different approaches which have been adopted around Australia.
In R v Arrowsmith [2018] SASCFC 47 the Full Court of the South Australian Supreme Court considered these authorities in light of the scheme now imposed under ss 501 and 501CA of the Migration Act. The Court was faced with two conflicting South Australian authorities on the deportation issue. Parker J (with whom Vanstone and Nicholson JJ agreed) found it unnecessary to resolve the issue as the evidence disclosed that the Department of Home Affairs was still considering the request that the Minister or his delegate exercise the power under s 501CA of the Migration Act to revoke the cancellation of the applicant's visa: "[37] I also consider that it is unnecessary to resolve the conflict between Berlinsky and Zhang. The approach adopted in Berlinsky (and also in New South Wales and Western Australia) is that the prospect of deportation is not a relevant consideration in sentencing. The alternative approach adopted in Zhang (and also in Victoria and Queensland) is that the prospect of deportation will be a relevant consideration if 'the risk of removal from Australia … [is] assessable rather than merely speculative'".
The Crown in this case submitted that there is insufficient evidence before the Court to enable any real assessment of the applicant's prospects of deportation following his release from custody. Counsel for the applicant submitted that his concern that he may be deported when released from prison is relevant to the applicant's state of mind.
I see no reason based on the provisions of the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) to adopt any different approach to sentencing in New South Wales. It remains the case that, as in Mirzaee, Pham and AC, the applicant here is at risk of deportation once released from prison. True it is that the statute now has an automatic application, subject to safeguards and ultimately to review. The possibility of deportation was not, in Mirzaee, Pham and AC, a relevant consideration on sentence, even in fixing the offender's non-parole period. Deportation was a live issue in cases such as the present under the migration law prior to 2014. After the amendment, deportation remains a matter for the Commonwealth Executive Government, subject to review within the Constitutional structure.
Even if the Victorian and Queensland approach to this question were to be adopted, this is a case where the evidence about the applicant's likely deportation does not rise beyond mere speculation. If there is to be a challenge to the long standing New South Wales approach to the relevance of possible deportation to sentencing, this case is not an appropriate vehicle for such a challenge. I do not propose to take the applicant's possible deportation into account.
Neither party submitted that this was a case where there was any statistical evidence relevant to sentencing or that there were any cases which threw any light on the appropriate sentence to be imposed.
Taking all of these matters into account, and in particular the 25 per cent discount for the early plea of guilty, I conclude that this offence warrants a period of imprisonment of 1 year and 6 months.
In fixing a recognisance release order pursuant to s 19AC of the Crimes Act, there is no statutory requirement to fix a particular percentage of the sentence to be served, nor any need to address special circumstances. What needs to be identified is the minimum period the applicant must serve having regard to all the circumstances of the offence: Power v The Queen (1974) 131 CLR 623; [1974] HCA 26. I conclude that this period is 12 months. In so concluding I take into account that the applicant would benefit from counselling to address the issues which led to his offending.
Pursuant to s 19AC of the Crimes Act, the applicant should be released on a recognisance, without sureties, to be of good behaviour for 6 months, after having served 12 months of that sentence.

Orders

I propose the following orders: 1. leave to appeal granted; 2. set aside the sentence imposed by English DCJ and in lieu thereof sentence the applicant as follows: 1. fix a period of imprisonment of 1 year 6 months to commence on 27 October 2017 and expire on 26 April 2019; 2. pursuant to s 19AC of the Crimes Act 1914 (Cth), order that the applicant be released on a recognisance, without sureties, to be of good behaviour for 6 months, after having served 12 months of that sentence. 3. the applicant's release date is 26 October 2018.
R A HULME J: I agree with Payne JA.
The fact that the minimum custodial component of the sentence imposed by the primary judge was 1 year 3 months and 23 days was not the subject of any complaint in this Court but it should not pass without comment. The learned sentencing judge did not explain why such an unusual and unrounded term was chosen. (If it was an attempt to precisely specify a period that was 75 per cent of the head sentence it failed by 2 days). This Court has said previously that specification of a term in such a manner is to be discouraged: Ruano v R [2011] NSWCCA 149 at [20] (Grove J); Rios v R [2012] NSWCCA 8 at [42]-[43] (Adamson J). It may add an unnecessary complication in some cases but it also suggests that there is some absolute arithmetical precision involved in the assessment of sentences.
In relation to the prospect of deportation issue, I agree that it is speculative in the sense that, while it might be likely, there is no certainty that the applicant will be deported. However, I also agree that this case is not an appropriate vehicle to challenge the long-standing New South Wales approach to the issue and that is because there was very meagre evidence going to only the first of the two ways deportation has been regarded as relevant in Victoria and Queensland according to Guden v R (see above at [28]).
The applicant deposed in an affidavit read for the purposes of re-sentencing that he is "very concerned" about the possibility he will be deported because it would involve a separation from his wife and 6-year-old daughter that he will find "unbearable". He also said that his wife was supportive of him; she visits him once every fortnight; and they speak on the telephone every few days. That was the extent of the evidence.
The first observation about that evidence is that there is an assumption that there will be a separation; there is no evidence as to where the applicant's wife and daughter will live in the event the applicant is deported. Secondly, assuming that there is cause to be "very concerned", it may be accepted that this evokes sympathy but how it gives rise to a more burdensome custodial experience for the applicant is not clear, particularly in a re-sentencing context where what is proposed will see him released in about two months.
BUTTON J: I agree with Payne JA.

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