Milliner v R

Court of Criminal Appeal (NSW)|2019-05-13|Before: Leeming JA, Hamill J, Adams J

Judgment

LEEMING JA: I agree with N Adams J.
HAMILL J: I agree with N Adams J.
N ADAMS J: Between 27 October 2015 and 5 April 2016, the applicant, Simon Milliner, regularly exchanged messages online on a fantasy website "motherless.com" with a person whom he believed was the 34-year-old mother of an 11-year-old girl called "Sarah". Over this period, he sent numerous messages discussing in graphic detail the sexual acts he would like to engage in with the mother and the child. In 2016, he attempted to meet with them for the purposes of engaging in unlawful sexual activity. Fortunately, "Sarah" was a fiction. The online profile which purported to be the mother was an assumed identity used by police officers from the Child Exploitation Internet Unit. On 5 April 2016, when the applicant travelled to the address at which he believed the mother and the child resided with a bottle of wine, he was arrested by police.
The applicant pleaded guilty in the District Court to two counts on an indictment contrary to s 66EB of the Crimes Act 1900 (NSW). Both counts carried a maximum penalty of 15 years imprisonment given that the fictitious child in question was under the age of 14 years, namely, 11 years. The two counts were as follows: 1. Attempting to intentionally procure a child under the age of 14 years for unlawful sexual activity contrary to s 66EB(2). 2. Travelling with the intention of meeting a child under the age of 14 years, namely 11 years, whom he had groomed for unlawful sexual activity with the intention of procuring the child for unlawful sexual activity with himself and another contrary to s 66EB(2A).

Agreed facts

The applicant stood to be sentenced on an agreed statement of facts. The sentencing judge set them out in full in his sentencing remarks which are published on Caselaw: R v Milliner [2018] NSWDC 324. I do not consider it necessary to set out the contents of the lengthy agreed facts in full. What appears below is a summary of those facts.
Towards the end of 2015 the NSW Police Child Exploitation Internet Unit was covertly monitoring the adult social networking site "motherless.com". That site had a logo which was similar to a safety sign and depicted a woman holding the hand of a child. The figures were surrounded by a circle and had a line across the diameter indicating that they were prohibited or not allowed in the area. The slogan of the site was "go ahead, she isn't looking".
On 27 October 2015 the applicant sent a message to an online profile on this website. The profile he commenced communications with was one used by police from the Child Exploitation Internet Unit and purported to be a 34-year-old woman with an 11-year-old daughter. The assumed identity was named CEIU22 "22". The applicant told the mother that he was into "daddy/daughter fantasies, rough or nice".
Thereafter a number of police used the profile of "22" in conversations with the applicant. The transcripts of various "chat messages", telephone conversations and SMS text messages between "22" and the applicant during the period 22 December 2015 and 5 April 2016 were attached to the agreed facts. The agreed facts include large extracts of the conversations between the applicant and "22" throughout the following months. Given the limited nature of the grounds of appeal, I do not consider it necessary to extract all of these conversations. Rather, I propose to summarise them in general terms. In doing so I propose to refer to "22" as "the mother".
The first contact was on 28 October 2015 when the applicant sent a message to the mother: "It's such a fantasy for me. You hold your daughter's hands as I undress her, then lick her and finally slide inside her …" The applicant and the mother continued to exchange messages over the next few months.
On 27 January 2016 the applicant sent a message to the mother asking when she and her "little one" would come to his place so that he could "make love" to them both. He requested that no condoms be used and stated that he is "quite big down there" and ejaculates "a LOT". He invited them to stay overnight so the three of them could all stay cuddled up together and sleep together. He ended the message with these words: "Blunt enough for you? Interested?". The applicant included a naked photograph of himself from the chest down below this message.
After these messages the applicant and the mother started to "chat" on "Skype" from 2 February 2016 with the applicant using the online profile of "jeansharp1000".
On 2 February 2016 the mother told the applicant that her daughter was 11. The two of them discussed the applicant's fantasy in detail including what they would both do to the child "Sarah". The applicant's suggested sexual acts included the following: the mother would "guide" the applicant into the child, and whilst he was inside her he and the mother would "lick and tease" the child and the child would do the same to the mother. The applicant told the mother that he imagined her teaching "Sarah" how to lick her mother and that he and the mother would do the same for "Sarah". He then suggested the mother could kiss and "finger" her daughter or use "small toys" on her. His fantasy was that the mother had already "taught" the child to climax. There was further discussion of "rubbing her clit." He then asked whether the mother would mind him "fingering her". He later stated that his ultimate fantasy would be for the mother to "guide" him into the child whilst the child is "soaking wet and wanting me". Other fantasies were then discussed. The conversation continued and included the applicant imagining how the child would perform oral sex on him and vice versa. The applicant also discussed methods for getting the child used to having his penis inside her such as using small toys or a vibrator stating, "If she started with a toy that was 'lifelike' she'd get herself excited at a real cock?"
On 24 February 2016 the applicant told the mother that he had purchased a vibrator for the child. He then showed her the "vibrator" on the camera of the computer and explained how it worked describing it as "not scary". When the mother asked the applicant who he would like to use it on most he replied, inter alia, that he would like to use it on "Sarah" "to make her come for me" but he also wanted to use it on the mother. He went on to suggest a number of sexual acts the three of them could participate in together such as: "In my fantasies "Sarah" loves having me inside her and craves me as much as you do… We sleep together and you're both full of my cum, you sleep on my arm and she's tucked up between us."
At this stage the mother told the applicant that neither she nor her "princess" were interested in fantasies. The applicant replied that "Fantasies aren't fantasies if we are actually doing them…If you're saying you want to do them then so do I… I'm confident now that you want to train your little one to have sex, properly and fully…, gently and lovingly with you participating." The conversation continued and the applicant stated, "I really really want to cum inside her." Before finishing the conversation, the applicant told the mother to do him a "favour" by using the vibrator on the child and telling him about it the following day.
On 25 February 2015 the applicant asked the mother whether "Sarah" was with her and suggested she tell her that she has found a man for her. The mother told him she would show a photo of him to "Sarah". The applicant became nervous at sending photos and told the mother "If you're a cop, setting me up, this is it…I'm stuck…. I'd like to know. Your words, what you want us to do….Then I'll send a pic….Sorry but the risk is all mine right now." Despite this, he subsequently sent two photographs of himself: one fully clothed, and then one naked. After sending this naked picture of himself the mother said "nice package" and the applicant replied, "Free to a good home haha". The conversation ended shortly thereafter.
On 1 March 2016 there was a discussion between the applicant and the mother about needing to put "Sarah" "on the pill". The applicant further described fantasies of penetrating the child ("she's gasping, I cum inside her"). He suggested how he would proceed slowly at first by talking to her and she would laugh and "get past the nerves, relax" before he would "play" with "Sarah," undress her and watch her climax. Further fantasies similar to those already described then were recounted. In response, the mother asked the applicant: "Is there anything you suggest I should do to her prior to you coming over." The applicant requested that she use the vibrator on "Sarah" and said he would send the vibrator the following day.
On 3 March 2016 the applicant and the mother discussed how the applicant could give the vibrator to the mother. During part of the conversation the applicant stated: "I never imagined someone as young, but now we are talking about it I want her so much….It's hard to describe… I want to teach her and guide her." During the conversation the mother gave the applicant her post-office box address so that the applicant could mail the vibrator to her.
On 7 March 2016 the applicant and the mother "chatted" on Skype. The applicant told her that her present is in a box, in an envelope addressed to "Tazzy and Co". Later in the conversation the applicant told her that he would be purchasing a "mini cock shaped dildo, quite small" that "Sarah" might like to try. The applicant encouraged the mother to meet him and they discussed what time is best for "Sarah".
On 8 March 2016 police recovered a box containing a vibrator from the relevant post-office-box address. The vibrator was the same as that depicted in the photograph the applicant had sent to her in their chat conversation on 24 February 2016. The vibrator and packaging was later tested for fingerprints. A number of the fingerprints of the applicant were identified on the quick-start guide of the vibrator, the "important information" form of the vibrator and on the padded bag that the vibrator arrived in.
The applicant and the mother continued to "chat" on Skype. They talked about meeting; and the applicant again stated in detail what sexual acts he wanted to perform on her and "Sarah", how much she and the child would enjoy it and how the applicant ejaculating inside the child would drive the mother "crazy".
On 16 March 2016 the two "chatted" on Skype and the mother told the applicant that "Sarah" has been sick. The applicant asked about the vibrator and then discussed it in detail. On 22 March 2016 there was some further conversation including the applicant and the mother discussing meeting up and providing phone numbers.
On 29 March 2016 the mother gave the applicant a mobile number and said that he could call her to chat. The applicant then called her. They discussed work, when the applicant would meet "Sarah" and whether "Sarah" knew he was coming to visit. She then described her and "Sarah" using the vibrator. The applicant asked whether to bring pizza. They discussed what "Sarah" would wear. The applicant then stated in detail what he wanted to do that first night including penetration. Later that night the applicant "chatted" again to the mother on Skype. The applicant again set out in detail what he wished to do with her and the child on their first night.

Events on 4 April 2016

On 4 April 2016 the applicant and the mother spoke on the telephone. The mother provided an address and the applicant offered to bring pizza and wine. The mother put "Sarah" on the telephone so that she could speak with the applicant. At this point another police officer pretended to be "Sarah". "Sarah" asked the applicant if he could get a cheese pizza and he said that he would.
The applicant then asked "Sarah" if she liked the present (the vibrator) and she replied that she did. The applicant suggested that "Sarah" could show him how it works tomorrow. The applicant and the mother then agreed to meet at 6.00 pm the next day as "Sarah" does not stay up late. The applicant asked whether the mother wanted him to stay and she replied that that was a "possibility" if everything went well. The applicant indicated that he wanted to go "all the way" with "Sarah" if she was "OK" with that and asked the mother whether "Sarah" had had toys inside her before stating: "…if she's used to having something inside her then it's not gunna hurt right?" The applicant then discussed what he would do to the mother and that it would be "awesome". The mother expressed concern that the applicant will be "too big" for "Sarah" and the applicant discussed how gentle he would be.
Later that night the two "chatted" on Skype. The applicant asked the mother whether "Sarah" knew "how far the games go tomorrow?" The mother replied that she has a "fair idea". There was then further discussion about the child's knowledge of ejaculation and the applicant asked the mother whether she was comfortable with him ejaculating inside "Sarah". The mother indicated that she would prefer if he did not. The applicant then again went into some detail describing what he wanted to do to the mother and child in a similar vein to that outlined above.

Arrest on 5 April 2016

The applicant travelled to the address provided by the mother. He telephoned her when he was 10 minutes' away. She agreed to come downstairs so that he could find her.
The applicant arrived at the premises carrying a bottle of red wine. He then left the scene and was followed by police. He was seen to run into a driveway of a nearby unit block and look over the rear fence of the premises. He was holding his head and looking distressed. Police told him to put his hands on the wall but he refused to comply and was placed under arrest. He was then cautioned by police as to the right not to say anything.
The applicant told police that he was coming to stop a woman "pimping" out her daughter. Police asked the applicant where the bottle of wine was. The applicant said, "I don't know what you mean." Police said, "You had a bottle of wine. Where is it?" The applicant shook his head. The applicant was escorted to the front of the building. Police asked him again where the bottle of wine was. He told police that he dropped it over the fence where they arrested him. Police then located the bottle of wine.
The applicant was escorted to his car which was searched. He was then taken to Parramatta police station and charged. He was refused bail and has been in custody since that date.

Facts in support of each count

The agreed facts state that the facts in support of count 1, the ongoing attempt by the applicant to procure the child, comprised all of the conversations with the mother between 27 October 2015 and 5 April 2016, inclusive of chat conversations, telephone conversations and SMS messages, including the applicant discussing what he wanted to do sexually with the child and the mother. This behaviour represented the ongoing attempt by the applicant to intentionally procure "Sarah".
The agreed facts further state that the facts in support of count 2, travelling to Westmead on 5 April 2016 with the intention of procuring "Sarah" for unlawful sexual activity with himself and "22", relied upon the acts of travelling and the acts of grooming "Sarah". The evidence of grooming included "but is not limited to": sending the mother a naked photograph of himself on 25 February 2015 to be shown to "Sarah", sending a vibrator in the mail to be used with "Sarah" and his telephone conversation with "Sarah" on 4 April 2016 during which he discussed whether she liked the vibrator.

Proceedings and Remarks on Sentence

The applicant did not give evidence in the sentence proceedings. He provided a character reference from Mesepa Paul, a volunteer of the Hillsong CityCare Prison Ministry team and letters from his mother, stepfather and partner. His subjective circumstances were advanced through the psychological report of Mr Michael Kirton, clinical psychologist, dated 4 February 2018.

Findings of objective seriousness

In relation to count 1, the sentencing judge held that the attempt to procure was objectively serious having regard to the following factors: 1. the nature of the proposed sexual activity included penile-vaginal intercourse; 2. the offence occurred over a period of approximately five months; 3. there was persistent pursuit of the fictitious child by the applicant as demonstrated by the volume of the messages sent; 4. the proposed child of 11 years was significantly below the age of 14 years; 5. there was a significant age difference between the applicant who was aged between 46 and 47 at the time; 6. the applicant envisaged participating with the mother of the child in sexual activity together with the child; 7. the applicant took steps to remain anonymous; 8. the maximum penalty for the offence is 15 years imprisonment.
His Honour went on to find that count 2 was also objectively serious. The features that supported that finding were that: 1. the applicant travelled with the intention to meet the child under 14 that he had groomed; 2. the proposed nature of the sexual activity included potential for penile vaginal intercourse; 3. it involved the applicant sending a sex toy in the mail as part of the grooming procedure; 4. the applicant envisaged the mother participating; 5. the age difference was significant and the child was significantly below the age of 14 years; 6. the applicant took steps to remain anonymous; 7. after the considerable volume of messages the applicant also spoke to a police officer posing as a fictitious child; 8. there was a relatively short period of time being one day between that conversation and the offence where the applicant travelled to meet with that child.
As for the applicant's subjective circumstances his Honour noted that the applicant had told the psychologist that he had a dysfunctional childhood due to his father's violence. His parents separated when he was six years old. He was terrified of his father as he witnessed frequent beatings by him of his mother. His mother remarried and the applicant liked his stepfather. Some time after this the applicant was present when his father raped his younger step-brother and step-sister. He gave evidence against his father who was imprisoned for these offences.
Although the applicant did reasonably well at school, he was bullied incessantly at primary and secondary school and called a "nerd". His relationship with his mother became problematic when he was a teenager and he used to become very upset with her when she told him in anger that he was just like his father.
The psychologist opined that the applicant was suffering from PTSD as a result of the guilt over, and the experience of, the sexual assault of his two siblings, school bullying and violent abuse in his early life when he witnessed the fear and anxiety that assaults by his father caused to his mother. In addition, he was suffering from moderate levels of depression, anxiety and stress. His Honour accepted the evidence of the psychologist that the applicant has struggled to maintain a healthy life perspective regarding his own values and his relationships for many years. His history of multiple violent traumatic memories before the age of six relating to his younger siblings and himself has resulted in him acting out in the alleged criminal behaviours of child grooming. The psychologist also opined that the applicant's crime fits the picture of an attempt to heal unresolved traumatisation through enactments of his early experiences of violence.
The applicant told the psychologist that his shock and regret for these offences has made him realise he needs to "fix" the problem. He has made efforts to do so whilst in prison. He has made offers of forgiveness to his biological father, made contact with his mother, re-established contact with the church and continued his relationship with his partner. He described himself as having worked hard to understand the alleged criminal behaviour.
In Mr Paul's letter to the court he stated that the applicant was "respectful and vulnerably honest" in relation to his offending and that he has expressed remorse and shame over his behaviour. He is now a committed Christian who intends to continue providing support to other inmates, as well as continuing with this Christian faith on his release from custody.
The applicant's mother and stepfather confirmed in their letters to the court the abuse inflicted by his father on his siblings and that they have reconciled and become closer since his arrest. They expressed the view that his imprisonment has been challenging but a positive process for him, and that he has re-assessed his life journey and what is important for him as a person.
In her letter to the court, the applicant's current partner stated that she had known the applicant for the past six years and been his girlfriend for the past three years. She has found him to be kind, loyal and trustworthy. He has acknowledged to her how foolish he was in the offending behaviour and has expressed remorse on many occasions for his actions and apologised on separate occasions to his family and to her.
The sentencing judge noted the applicant did not have any criminal convictions, that he had demonstrated remorse and had good prospects of rehabilitation. His Honour accepted the applicant's expression of wanting to change his life and was satisfied that he intends to undertake the necessary psychological treatment. The sentencing judge also found that the applicant was unlikely to re-offend and that he now has insight into the extent of his PTSD and the effects it is having on him.

Relevant legislation

Before turning to consider the grounds of appeal it is helpful to note the terms of s 66EB of the Crimes Act, which was inserted into the Crimes Act by the Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 (NSW). It was further amended by the Crimes Amendment (Sexual Offences) Act 2008 (NSW) to insert the offence of meeting a child following grooming by adding s 66EB(2A) and (2B). Section 66EB is in these terms: "66EB Procuring or grooming child under 16 for unlawful sexual activity (1) Definitions In this section: adult person means a person who is of or over the age of 18 years. child means a person who is under the age of 16 years. conduct includes: (a) communicating in person or by telephone, the internet or other means, or (b) providing any computer image, video or publication. unlawful sexual activity means an act that constitutes an offence under this Division or Division 10A, 15 or 15A (or, in the case of an act occurring outside this State, that would constitute such an offence if it occurred in this State). (2) Procuring children An adult person who intentionally procures a child for unlawful sexual activity with that or any other person is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years - imprisonment for 15 years, or (b) in any other case - imprisonment for 12 years. (2A) Meeting child following grooming An adult person: (a) who intentionally meets a child, or travels with the intention of meeting a child, whom the adult person has groomed for sexual purposes, and (b) who does so with the intention of procuring the child for unlawful sexual activity with that adult person or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years - imprisonment for 15 years, or (b) in any other case - imprisonment for 12 years. (2B) For the purposes of subsection (2A), a child has been groomed for sexual purposes by an adult person if, on one or more previous occasions, the adult person has engaged in conduct that exposed the child to indecent material. (3) Grooming children An adult person: (a) who engages in any conduct that exposes a child to indecent material or provides a child with an intoxicating substance, and (b) who does so with the intention of making it easier to procure the child for unlawful sexual activity with that or any other person, is guilty of an offence. Maximum penalty: (a) in the case of a child who is under the age of 14 years - imprisonment for 12 years, or (b) in any other case - imprisonment for 10 years. (4) Unlawful sexual activity need not be particularised In any proceedings for an offence against this section, it is necessary to prove that the child was or was to be procured for unlawful sexual activity, but it is not necessary to specify or to prove any particular unlawful sexual activity. (5) Fictitious children A reference in this section to a child includes a reference to a person who pretends to be a child if the accused believed that the person was a child. In that case, a reference in this section: (a) to unlawful sexual activity includes a reference to anything that would be unlawful sexual activity if the person were a child, and (b) to the age of the child is a reference to the age that the accused believed the person to be. (6) Charge for aggravated offence The higher maximum penalty under subsection (2), (2A) or (3) in the case of a child under the age of 14 years does not apply unless the age of the child is set out in the charge for the offence. (7) Defence It is a defence in proceedings for an offence against this section if the accused reasonably believed that the other person was not a child. (8) Alternative verdict If on the trial of a person charged with an offence against subsection (2) or (2A) the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (3), the jury may acquit the person of the offence charged and find the person guilty of an offence against subsection (3). The person is liable to punishment accordingly."

Ground 1: error regarding accumulation

The applicant submitted that both offences involved the same alleged victim (even though none exists) and that there was only one continuing course of conduct. Accordingly, concurrent sentences should have been imposed. The offending conduct of count 1 extended to and included the same date as count 2 being 5 April 2019. Thus, it was submitted, the offences are substantially contemporaneous and connected; the element of "grooming" was a necessary element of both counts and there appears to have been double counting in this regard. It was submitted that the degree of accumulation of 66% had the effect of punishing him twice for the same conduct of grooming the child.
The applicant submitted that throughout all his dealings with the undercover operative (count 1) the objective was to arrange the ultimate meeting which formed count 2. In this way the sentences, if concurrent, or substantially concurrent, could have comprehended and reflected the criminality of the other. It was submitted that if the principles of Regina v XX [2009] NSWCCA 115 were applied that the sentences imposed should have been totally or substantially concurrent.

Ground 2: whether sentence manifestly excessive

In relation to ground 2, the applicant submitted in his written submissions that in all the circumstances the total sentence imposed is manifestly excessive given that he was encouraged to participate in a fantasy website by an undercover operative, that no child actually existed, that he has no prior criminal record, that he was suffering significant psychological issues, is receiving treatment and has been assessed as a low risk of reoffending.
In the circumstances, it was submitted, the sentence may be a crushing sentence in that it will leave the applicant with a sense of hopelessness and destroy any expectation of a useful life after release.
At the hearing of this application for leave to appeal the applicant's counsel conceded that the nub of this application is a complaint that the degree of accumulation of the two sentences was excessive. It was not contended that either of the sentences imposed was manifestly excessive. Rather, it was contended that the total term was too high because his Honour had erred in the degree of accumulation he applied. Thus, ground 2 was in fact a reformulation of ground 1.

Grounds 1 and 2

The Crown accepted that the offences took place over substantially the same time period, and with respect to the same fictitious child, but submitted that the elements of the offences are distinct. Whereas the criminality of count 1 lies in the attempts to procure the child, the conduct satisfying the grooming element of count 2 is not already incorporated within the extensive communications with the mother which constituted the attempts to procure the child (count 1).
On the Crown's submission, the conduct relied upon with respect to count 2 involved the grooming of the fictional child herself, including sending the vibrator, and the applicant speaking directly to her on the telephone about it.
The nature and number of communications may be taken into account in considering the seriousness of the offending. In the present case, the Crown submitted, the conduct the subject of count 1 persisted over 5 months, which is a considerable period. The conduct was neither spontaneous nor opportunistic.
During the count 1 conversations, the applicant repeatedly referred to a desire to engage in penile-vaginal intercourse with the child (as well as references to cunnilingus and fellatio). With respect to count 2, the grooming involved sending a naked photograph of himself, and sending a vibrator in the mail intended for the child.
In relation to the applicant's subjective case, the Crown acknowledged that the applicant's diagnosis of PTSD was accepted by the primary judge but his subjective case on sentence is not such as to outweigh the objective seriousness of the offences for which general deterrence is the paramount consideration.
It was conceded that the degree of accumulation was significant but that there was no error in the exercise of the broad sentencing discretion.

Supplementary submissions

At the close of the hearing of this appeal on 13 May 2019 the parties were invited to provide further written submissions on the construction of s 66EB of the Crimes Act and, in particular, how the offences on which the applicant were sentenced are to be established when the child in question is fictitious. Submissions were subsequently received on 14 and 15 May 2019.

Consideration

The applicant's complaint is a limited one; it is directed solely at the degree of accumulation of the sentence imposed for count 2 onto the sentence imposed for count 1. It is not directed at either of the individual sentences imposed on the applicant. The applicant, in effect, made two arguments. The first of these was a specific complaint that the sentencing fell into error by "double counting" the element of "grooming". The second argument was that his Honour erred in his sentencing discretion overall with regard to the application of the totality principle.
Turning first to the question of double counting, I have set out the factors relevant to the finding of objective seriousness by the sentencing judge on both counts at [36] above. The applicant's complaint is that factors (b), (c), (d), (f) and (g) for count 2 all incorporate the communications which form the basis of count 1 and thus the element of "grooming" has been counted twice.
The elements of count 1, brought contrary to s 66EB(2), are that the applicant attempted to "intentionally procure a child for unlawful sexual activity with that or any other person". By virtue of the operation of s 66EB(5) the reference to "child" in s 66EB(2) includes a reference to "a person who pretends to be a child if the accused believed that the person was a child". Similarly, the reference to "unlawful sexual activity" in s 66EB(2) includes a reference to anything that would be unlawful sexual activity if the fictitious person were a child.
The elements of count 2, brought contrary to s 66EB(2A), are that the applicant intentionally travelled with the intention of meeting a child, whom he had "groomed" for sexual purposes, and that he did so with the intention of procuring the child for unlawful sexual activity with that adult person or any other person. For the purposes of s 66EB(2A) a child has been "groomed" if an adult person has exposed the child to "indecent material" (see s 66EB(2B)), such as a vibrator, as occurred here.
Although it is to be accepted that there was an overlap in relation to some of the facts for both counts 1 and 2, it does not follow that that has been double counting in relation to the element of grooming. Grooming the child was not an element for count 1. Count 1 relied upon the element of attempting to "procure" the child which comprised the communications over a significant period of time with the mother of the child in order to have access to the child. The relevant criminality lies in the attempts to procure the child. The element of "grooming" is referable solely to count 2. It relied upon the sending of the vibrator and speaking directly with the child and asking her questions about her gift and his upcoming visit. Although this conduct falls within the definition of "grooming" it does not constitute "unlawful sexual activity" within the meaning of the section.
The offences created by s 66EB have not been the subject of much authority, especially in their extended application to a fictitious child. But it is not necessary for the purposes of this appeal to attempt to analyse all aspects of them.
The fact remains that the acts relied upon to establish the element of "grooming" in count 2 were not confined to the extensive communications relied upon in order to establish the procuring of the child under count 1. That is, in effect, what was contended for by the applicant. The agreed facts clearly set out which facts supported each charge. Although it is to be accepted that the agreed facts identified the facts in support of count 2 as not being limited to the sending of the naked photograph, the sending of the vibrator and speaking with "Sarah" on 4 April 2016 (see above at [34]), those matters alone were serious enough and sufficient to establish the offence.
Although I am not satisfied there has been any "double counting" in relation to the question of "grooming" the child as between counts 1 and 2, the applicant's second argument was that the sentencing judge erred in relation to the proper application of the totality principle in this matter.
It is well established that issues of concurrence and accumulation are to be determined according to principles of totality. The issue raised in this appeal was explained in Cahyadi v R [2007] NSWCCA 1 at [27] by Howie J (with whom Adams and Price JJ agreed) in this way: "… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
Two questions arise in response to the applicant's complaint in this regard: Is any error established in the sentencing judge's decision not to order that the two sentences be served wholly concurrently? And, second, if not, was the degree of accumulation excessive in the circumstances?
The first of these questions can be easily disposed of. I can identify no error in the decision by the sentencing judge not to impose wholly concurrent sentences in this matter. His Honour was clearly not satisfied that the sentence on count 1 could comprehend and reflect the criminality of count 2. Although it is to be accepted that the two offences were part of an ongoing episode of criminality with common factors, I too am not satisfied that the criminality of each offence comprehends and reflects the criminality of the other. It is one thing to attempt to procure a child for the purposes of unlawful sexual activity and quite another matter to act on those urges by travelling to meet a child that has been groomed for such sexual activity. The totality of the applicant's criminal conduct included attempting to procure the child though her "mother", grooming the child (through sending the vibrator and photographs and speaking with the "child") and travelling to meet with the child. These are three discrete criminal acts that were reflected in the two charged counts.
In contending that the two sentences should have been imposed to be served wholly concurrently, the applicant relied upon the decision of this Court in Tector v Regina [2008] NSWCCA 151. That decision was concerned with an offence contrary to s 474.26 of the Criminal Code (Cth). Reliance was placed on the fact that all of the offences in that matter were dealt with concurrently. I do not consider that the applicant gains any assistance from making a comparison with that decision.
Although the applicant has not established any error in the decision not to impose wholly concurrent sentences in this matter, that leaves the question of the degree of accumulation. I have had regard to the relevant principles concerning accumulation and concurrence. I have also had regard to the fact that both offences arose in the context of the applicant being encouraged to participate in a fantasy website by an undercover operative, that there were a number of factors common to both counts, that there was one ongoing course of conduct and that there was only one "victim" involved. Although it was well within the sentencing judge's discretion to partially accumulate the sentence on count 2 onto that on count 1, a degree of accumulation of 66% is significant.
It is to be accepted, as Button J observed in Greenyer v R [2016] NSWCCA 272 at [40], that the discretion of the sentencing judge as to the degree of concurrence and accumulation is broad. Despite this, I am satisfied that error has been disclosed with respect to the degree of accumulation of the two sentences in this matter for the reasons I have stated.
Error having been established in the exercise of the sentencing discretion, I am required to resentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. As the five-judge bench of this Court in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 observed, in resentencing an applicant where the error is in respect of "a discrete part of the process" it is still necessary for this Court to form its own view of the appropriate sentence. As Bathurst CJ, with whom Beazley P and Schmidt J agreed, said at [68]: "… it seems to me that if there is an error which affects the exercise of the sentencing discretion, the section requires the court to form its own view of the appropriate sentence …"
In DL v The Queen [2018] HCA 32; (2018) 92 ALJR 464 the High Court (Bell, Keane, Nettle, Gordon and Edelman JJ) observed (at [9]) that in exercising its independent sentencing discretion: "Exceptional cases apart, the Court of Criminal Appeal's determination of the appropriate sentence is determined on the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post-sentence conduct."
No challenge was made in this court to any of the sentencing judge's findings or assessments, nor to either of the individual sentences imposed on count 1 and 2. Although I am required to re-exercise the sentencing discretion, I do not consider it necessary to revisit matters that were not challenged before this court. Nor do I disagree with any of the unchallenged findings made by the sentencing judge. Accordingly I proceed to resentence the applicant based on the same findings made by the sentencing judge.
I am satisfied that significant sentences were required in this matter for the reasons identified by the sentencing judge. Offences involving sexually predatory conduct towards children have general deterrence as a primary sentencing consideration: R v De Leeuw [2015] NSWCCA 183 at [72]. In Rampley v R [2010] NSWCCA 293 at [37] McClellan CJ at CL (with whom Latham and Price JJ agreed) observed that "the offence is no less reprehensible when the offender is communicating with a fictitious person who they believe to be real than when communicating with a real person". The nature of the sexual activity proposed or intended is also a relevant consideration in this assessment of the objective seriousness of the offence: Tector at [96].
Although I am satisfied that no lesser sentence is warranted in relation to each of the individual sentences imposed on counts 1 and 2, in the exercise of my sentencing discretion I would allow for a period of one year accumulation of the sentence on count 2 onto count 1 (rather than the two years allowed for by the sentencing judge). As stated above, the sentences should be at least partly cumulative to avoid the risk that the sentence will fail to reflect the total criminality of the two offences. In the exercise of my sentencing discretion I consider that a period of 12 months' accumulation of count 2 onto count 1 reflects the applicant's overall criminality.

Orders

Accordingly, the orders I would propose are as follows: 1. Leave to appeal is granted. 2. The appeal is allowed and sentences imposed at first instance are quashed. 3. In lieu thereof 1. For count 1 the offender is sentenced to a sentence of imprisonment consisting of a non-parole period of 3 years commencing from 5 April 2016 and expiring on 4 April 2019 and a balance of term of 2 years to commence on 5 April 2019. 2. For count 2, the offender is sentenced to a sentence of imprisonment consisting of a non-parole period of 3 years commencing from 5 April 2017 and expiring on 4 April 2020 with a balance of term of 3 years to commence on 5 April 2020.
The overall effective sentence imposed consists of a non-parole period of 4 years commencing from 5 April 2016 and expiring on 4 April 2020 and a balance of term of 3 years. The offender will become eligible to be released on parole on 4 April 2020.

Amendments 20 June 2019 - [79] "2020" instead of "2010" 26 August 2019 - [59] "direct" instead of "directly" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2019

Crimes Amendment (Sexual Offences) Act 2008(NSW)

Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007(NSW)

Crimes Act 1900(NSW)s 66EB, ss 66EB, 344A

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