_R v Bedeau_

Judgment (31 paragraphs)

[1]

Director of Public Prosecutions (Queensland) for the respondent

[2]

[1] HOLMES JA: I agree with the reasons of Muir JA and with the orders his Honour proposes.

[3]

[2] MUIR JA: The applicant was convicted after a trial in the District Court of two counts of using the internet to procure a child to engage in a sexual act and one count of using the internet with intent to expose a child to an indecent act and sentenced on each count to an 18 month term of imprisonment. All terms were ordered to be served concurrently and no suspension was ordered. The applicant applies for leave to appeal against his sentences on the grounds that they were manifestly excessive.

[4]

[3] The applicant's counsel accepts that the authorities support the 18 month head sentences imposed. They were accepted as appropriate also by the counsel who appeared for the applicant on the sentencing hearing. The applicant's counsel contends however, for the reasons discussed later, that the failure to suspend the sentences after six months resulted in their being manifestly excessive.

[5]

[4] The applicant, who was 28 years of age at the time of the offences, had a minor criminal history which the primary judge, appropriately, considered irrelevant. He lived with his mother who suffered from a debilitating illness which made her dependent on him for care and assistance. She was also financially dependent on him. He had a good work history.

[6]

[5] On 4 January 2007 a police officer, using the pseudonym "Gemma Sterling" visiting "forums and chat mediums" on the internet, was contacted by the applicant who transmitted the message "Hey"?

[7]

[6] The applicant contacted "Gemma Sterling" on 5 January 2007 and an online communication took place. In the course of it "Gemma" said that she was 14 and a female from Brisbane. The applicant advised that he was 28 from Caboolture. The communication contained no sexual connotations. The next such conversation occurred on 16 January 2007 when "Gemma" made contact with the applicant. She informed him that she lived at New Farm. She transmitted photographs of a young girl and represented that they were photographs of "Gemma." Not long into the conversation the applicant commenced a lurid sexual discourse in the course of which he purported to give instructions to "Gemma" on masturbatory techniques. The sexually graphic discussion continued for some time with the applicant giving instructions and "Gemma" pretending to follow them. The applicant offered to engage in sexual conduct with "Gemma" and arranged to meet her that night for the purposes of engaging in sexual activity. The meeting did not take place.

[8]

[7] An electronic communication with a similar content took place between the applicant and "Gemma" on 17 January 2007. In the course of that communication the applicant attempted to arrange another meeting and transmitted to "Gemma" photographs depicting adults engaged in sexual activity. On 18 January 2007 "Gemma" made an unsuccessful attempt to establish internet contact with the applicant. A police officer posing as "Gemma" telephoned the applicant later that day and left a message on the applicant's answering machine. On hearing it the applicant deduced that the caller was a police officer.

[9]

[8] Count 1 on the indictment concerned the applicant's attempts to persuade "Gemma" to meet him and engage in sexual acts. Count 2 related to the applicant's instructions to "Gemma" concerning masturbation. Count 3 concerned the transmission of the photographs.

[10]

[9] As well as referring to comparable sentences, the applicant sought to establish that the primary judge erred:

[11]

(a) In finding that there were "no features demonstrating remorse" on the part of the applicant; and

[12]

(b) In not taking into account the fact that the conversation on 16 January 2007 was initiated by the police officer.

[13]

[10] In relation to ground (a) the applicant's counsel pointed to her client's predicament in being unable to plead guilty because of his belief that he was communicating with an adult male. It was submitted that the applicant actually showed remorse by claiming in an interview with a police officer that he apologised to "Gemma" on the internet on the previous day, that is, the 18 January 2007. The submission was ill considered. In an interview with police officers on 19 January 2007, the applicant admitted that although he believed initially that he was in communication with a friend of his who was "pulling a ... prank" on him, he understood he was dealing with a 14 year old after "a few things ... were said." A cursory perusal of the transcripts of the electronic communications makes it clear that the applicant believed himself to be dealing with a young female.

[14]

[11] The applicant's maintenance of the fiction that he believed he was communicating with a male friend casts doubt upon the sincerity of the apology to the non-existent "Gemma" and also on the sincerity of the applicant's request to police officers to pass on his apologies to "Gemma's" parents.

[15]

[12] The primary judge, as she was entitled to do, sentenced the applicant on the basis that he thought he was communicating with a 14 year old girl. The applicant's counsel at first instance did not submit that he should be sentenced on any other basis.

[16]

[13] Whether the primary judge took into account the fact that the conversation on 16 January 2007 was initiated by the police officer is unknown. The evidence was before her and the applicant's counsel made no submissions in that regard. The contention that the primary judge erred in failing to take into account a matter not relied on by the applicant's counsel merely because it was not mentioned in the sentencing remarks should be rejected. I accept, however, the relevance of the fact that the unlawful conduct commenced in a conversation initiated by a police officer. Also relevant is the applicant's role as his ill mother's carer and her financial dependence on him. The mother's circumstances are such as to permit them to be taken into account in accordance with the principles expressed in cases such as R v D'Arrigo; ex parte Attorney-General (Qld) [2004] QCA 399 and R v Chong; ex parte Attorney-General (Qld) [2008] QCA 22, bearing in mind that the mother's hardship "cannot be allowed to overwhelm factors such as retribution and deterrence."[1] Regard must be had also to the following cautionary observations of Gleeson CJ in R v Edwards:[2]

[17]

"Hardship to spouse, family, and friends, is the tragic, but inevitable consequence of almost every conviction and penalty recorded in a criminal Court ... It seems ... that courts would often do less than their clear duty ... if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners."

[18]

[14] Other relevant considerations are the applicant's work history, lack of relevant criminal history and the fact that he did not, in fact, communicate with a 14 year old girl.

[19]

[15] The applicant's counsel relied on the decisions of this Court in R v Hays,[3] R v Burdon; ex parte Attorney-General (Qld);[4] R v Kennings[5] and R v Campbell.[6] In Hays, the 29 year old applicant's application for leave to appeal against a sentence of 18 months imprisonment suspended after three months, imposed after a plea of guilty to two counts of using the internet to procure a person who he believed was under 16 years of age to engage in a sexual act and two counts of using the internet with intent to expose a person he believed was under 16 to indecent matter, was refused. The applicant believed he was communicating with a 13 year old girl and engaged in a sexually explicit discussion with her which included the giving of detailed graphic instructions on how to masturbate. He transmitted a moving "real time" image of himself masturbating on two occasions.

[20]

[16] In Burdon the Court dismissed an Attorney-General's appeal against sentences imposed after pleas of guilty to an offence of using the internet to expose a person believed to be under the age of 16 to indecent matter and to an offence of using an electronic communication to procure that person to engage in a sexual act. The 50 year old applicant was sentenced to perform 240 hours of community service on one count and 18 months imprisonment wholly suspended on the other. The President, with whom the other members of the Court agreed, observed a sentence of 18 months imprisonment suspended after three months would have been "well within the appropriate range." The applicant engaged in sexually explicit communications with a police officer posing as a 13 year old girl, sent her a photograph of his erect penis and arranged to meet her for the purpose of performing indecent acts. By the time of the hearing the applicant had completed the 240 hours community service. The Attorney-General's appeal was dismissed.

[21]

[17] The 25 year old applicant in Kennings, who pleaded guilty to one count of using the internet to procure a person whom he believed to be under 16 years to engage in a sexual act, was sentenced to two and a half years imprisonment suspended after nine months. He communicated on the internet with a police officer posing as a 13 year old girl. The communication was sexually titillating and the applicant sent her a photograph of himself. The police officer responded with an email "provocative picture" of a teen model. The applicant proposed a meeting with a view of engaging in sexual activity. He kept the pre-arranged rendezvous and was arrested. He had no previous convictions. In the course of her reasons, Mullins J, with whom the other members of the Court agreed, after noting the importance of general and specific deterrents, remarked that it was relevant that no child was the recipient of the communications. The appeal was allowed and the head sentence was reduced to 18 months and suspended immediately. The applicant had spent 90 days in custody.

[22]

[18] The applicant in Campbell, who had pleaded guilty to using the internet to procure a child to engage in a sexual act and was sentenced to 18 months imprisonment suspended after three months, failed to obtain leave to appeal against sentence. He communicated with a police officer posing as a 13 year old girl, engaged in sexually explicit communications, sent her two photographs of himself handling his erect penis and was working towards arranging a meeting with his correspondent. The applicant was 22 years of age and had no prior convictions.

[23]

[19] Counsel for the respondent submitted that the decisions in Hays, Kennings, Burdon and Campbell demonstrated that the sentences imposed were within range. In my respectful opinion, however, the failure to set a parole release date or to suspend the sentences after six months resulted in manifestly excessive sentences. In my view the sentences imposed failed to take into account sufficiently the matters discussed in paragraphs [13] and [14] above and in doing so lacked proportionality with the sentences discussed above which were imposed after pleas of guilty.

[24]

[20] I would allow the application for leave to appeal, allow the appeal and order that each sentence imposed at first instance be suspended after six months with an operational period of three years.

[25]

[21] ATKINSON J: I agree with the orders proposed by Muir JA and with his Honour's reasons.

[26]

[1] R v Le [1995] QCA 479; [1996] 2 Qd R 516 at 522.

[27]

[2] (1996) 90 A Crim R 510 at 515 - 517.

[28]

[3] [2006] QCA 20.

[29]

[4] [2005] QCA 147.

[30]

[5] [2004] QCA 162.