R v Bredal

District Court of NSW|2023-08-22

Introduction

On 17 May 2023 after determination of a discrete pre-trial issue by the Court on 16 May 2023, a jury of 12 was empanelled in the trial of Daniel Christian Bredal (the offender) before the District Court at Penrith. Mr Clifford-O'Sullivan of counsel appeared as Crown for the Commonwealth, and Ms Hutchinson, counsel appeared for the offender who appeared in person in the trial proceedings, off bail.
On 17 May 2023 the offender was arraigned in respect to a single charge pursuant to s 474.27(1) Criminal Code Act, 1995 (Commonwealth) in the following terms: "That he between about 26/11/2021 and about 14/12/2021 at Lawson and elsewhere in NSW, being 45 years of age, did use a carriage service to transmit communications to another person, the recipient, being someone who he believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with himself."
On 24 May 2023 the jury of 12 returned a verdict of guilty to the charge.
As previously noted, the offence is one contrary to s 474.27(1) of the Cth Criminal Code Act 1995 and carries a maximum penalty upon conviction of 15 years imprisonment.
Given that this is a Commonwealth offence the offender is to be sentenced having regard to the provisions of Part 1B of the Crimes Act 1914 (Cth). As with all sentencing it is necessary for me to assess the objective seriousness of the offence for which the offender is to be sentenced. I am required to do this by reference to the maximum penalty prescribed by the Parliament, it being a clear legislative guidepost as to the seriousness with which the offence is to be viewed, the facts and circumstances of the offending, relevant common law principles and by having regard to the applicable sections of the Crimes Act 1914 (Cth).
I note at the outset that I have received comprehensive and thoughtful written and oral submissions from both Mr Clifford-O'Sullivan for the Crown and Ms Hutchinson, counsel for the offender and I express my gratitude to each of them.

Facts

In determining the facts upon which I sentence Mr Bredal I am bound by the jury verdicts. I must resolve any dispute in light of the evidence adduced at the trial although such resolution by me is limited to matters collateral to the elements of the offence for which the offender has been found guilty. In Savvas v The Queen (1995) 183 CLR 1 at 8, Deane, Dawson, Toohey, Gaudron and McHugh JJ referred to the "principle that a sentencing judge may form his or her own view of the facts, so long as it does not conflict with the jury's verdict". Fact finding following a jury verdict is affected by the inscrutability of a jury verdict.
In Cheung v The Queen (2001) 209 CLR 1 the High Court (the joint judgement at [14]; Callinan J at [169]) cited the decision of R v Isaacs (1997) 41 NSWLR 374 with approval on the question of fact finding following a jury verdict. The joint judgement summarised the law at [14]: "1. Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rests with the judge, and not with the jury… 2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings… 3. The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury… 4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt… 5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. However, the practical effect of 4 above, in a given case, may be that, because the charge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason to sentence upon a view of the facts which is most favourable to the offender…"
The joint judgement in Cheung v The Queen stresses that a jury's verdict decides the issues joined by the plea to the indictment. It does not decide, either expressly or by implication, all facts of possible relevance to sentencing. It may be possible to infer that certain parts of the evidence must have been accepted by the jury. However, it is impossible to know whether some or all of the jurors accepted all of the evidence relied upon by the prosecution. Relying on evidence on sentence that is fundamentally inconsistent with the evidence given at the trial (or making findings based on it, which are inconsistent with those which, in all probability, formed the basis of the jury's verdict), in a manner favourable to the prosecution, is not permitted: Tarrant v R [2018] NSWCCA 21 at [92].
In summing up after the evidence and closing addresses of counsel the jury were provided with both oral directions and an 'Elements Document' which relevantly set out the essential elements of the charge, each of which the jury was instructed the Crown must prove beyond reasonable doubt before the jury could find the offender guilty. The essential elements of the s 474.27(1) charge upon which the jury were directed are as follows: 1. That at the time and place alleged the accused intentionally used a carriage service to transmit a communication to another person (the recipient); and 2. The accused transmitted the communication with the intention of making it easier to procure the recipient to engage in sexual activity with himself; and 3. The accused believed that the recipient of the communication was someone under the age of 16 years; and 4. The accused knew or was reckless to the fact that he was at least 18 years of age.

The Crown Case at trial

In submissions the Crown asserted that by its guilty verdict jury found the offender: 1. Was at least 18 years of age. 2. Intentionally used a carriage service to transmit a communication to another person, being the 'Assumed Online Identity' (the AOI). 3. He did so with the intention of making it easier to procure the AOI to engage in sexual activity with him. 4. He did so believing the AOI to be under the age of 16 years.
It is uncontroversial that only elements C and D were in issue in the trial. In respect to element C the Crown submitted that the court would be satisfied beyond reasonable doubt that the kinds of sexual activity the offender intended making it easier to procure the AOI to engage in with him included, sexual intercourse, and/or other activity of a sexual indecent nature which included the offender touching the recipient under her skirt, rubbing his hand up her leg, rubbing her clitoris through her underwear, rubbing her clitoris, getting her to rub her clitoris, kissing her, and touching her "everywhere", including inside her underpants. By transmitting the communications to the AOI the court would be satisfied beyond reasonable doubt the offender intended 'making it easier' to procure the AOI to engage in that sexual activity with him in four ways. Firstly, by introducing various subjects into the conversations between them on 26 November 2021, 7 December 2021, 8 December 2021, and 9 December 2021. Secondly, by escalating the sexual explicitness of the messages sent to the AOI on 26 November 2021, 7 December 2021, 8 December 2021, 9 December 2021, and 12 December 2021. Thirdly, by commenting in the communications on the AOI's appearance, including her body. The offender frequently reassured the AOI about her appearance and continuously and increasingly commented on her appearance, complimenting her on how pretty she was and that he liked her body. In messages he told her that she sounded pretty, that he could not get over how pretty she was, that she was "hot", that her breasts were 'hot', and that he thought she would be sexy. Fourthly, by gaining the trust of the AOI during the course of the messaging by letting her feel that she was in control during the communications.
In respect to the first of the four ways Crown submitted that the court would be satisfied beyond reasonable doubt that the offender intended making it easier to procure the AOI for the identified sexual activity reference was made to the messages on 26 November 2021. After being told by the AOI that she was 14 years old after the offender had asked her age the offender said that he would "not say anything sexual", and then made the suggestive comments "best not to tell you now" and, "I better not tell you what I'm doing right now". The Crown says such messages establish the offender's intention to engage the recipient of his messages in sexually suggestive communications intended to make it easy to procure her to engage in the identified sexual activity with him. The offender also asked the AOI if she had a "GF" or "BF". Further in a message on 7 December 2021, some 10 days later, the offender introduced for the first time any notion of intimacy between himself and the AOI, he introduced the idea of talking "adult stuff" and asked the AOI if she was curious about "adult stuff" and "adult sex stuff". In the messages on 7 December 2021, he introduced the AOI's appearance, telling her she sounded "pretty" (after asking the AOI "what she looked like"). In messages on 7 December 2021 the offender introduced his interest in the AOI in a physical and intimate way, he asked if she was wearing a bra under her singlet and then whether the singlet was "figure hugging".
In other messages on 7 December 2021 the offender discussed the AOI's body in an overtly sexual way, by asking her about the size of her breasts and that he thought they were "hot". It was in messages on 7 December 2021 that the offender initially suggested intimate physical contact between them (sexual activity). He messaged that it would be better if she was wearing a skirt because it would be "easier access" for "touching" her. He described how he would touch her, by sliding his hand gently up her leg, gently over her knee, along her thigh pushing her skirt up, gently tracing along her leg up to her underwear and gently run his fingers along the outside of her underwear, along the sides of her underwear, and gently slide upper middle of her underwear, gently pushing against her clitoris. In later messages on 7 December 2021, the offender said, "I want to start to rub your clit through your underwear while I lean forward and start to kiss you deeply on your lips…".
It is also on 7 December 2021 that the offender instructs the AOI how to masturbate and first the notion of actually be physically intimate together, in so far as the offender suggested the AOI message him later that night when she was in bed, this following the AOI messaging the offender that she may try to masturbate at that time.
In a message on 8 December 2021 the offender introduces language suggestive of them being physically present in the same place. In response to the AOI messaging that she "might have a shower b4 mum gets home", the offender messages "I shower with you haha", "to be close to you". The offender also messaged the AOI that he'd love to see her in the shower, the AOI would be "sexy", "especially in the shower". It was on this date the offender also offered and in fact sent a photograph of himself. On the following day (9 December 2021), in response to the AOI asking the offender if he meant it when he had earlier said that he wanted to meet up, the offender said, "I do", and again when the AOI disclosed that her mother would be away until "late" Wednesday next week, the offender responded by saying he would actually "be closer on Wednesday", and "I like the idea".
The content of these conversations over on 26/11/21, 7/12/21, 8/12/21 and 9/12/21 the crown submits establish beyond reasonable doubt that it was the offender's intention in transmitting the communications to make it easier to procure the AOI to engage in sexual activity with him, not limited to what is disclosed in the communications, but broader sexual activity, including sexual intercourse and other activity of a sexual and/or an indecent nature.
The second of the ways submitted by the crown that establishes his asserted intention beyond reasonable doubt, is the escalation of the sexual explicitness of the messages sent to the AOI. The Crown identified messages on 26 November 2021 where the offender in response to AOI disclosed she was 14 years old says that he will say sexual that makes a suggestive comment on what he is time and asked her if she has a boyfriend or girlfriend. The offender suggests that he would ask her out and/or be her boyfriend. He then mentions "adult stuff" "adult sex stuff" when they next engage in messaging on 7 December 2021. It is in messages on 7 December 2021 that the offender asks the AOI about her breasts and sent messages that it would be better if she were wearing skirt because it would be "easier access if you know what I mean". The offender then engages in more explicit messaging about how and where he would touch the AOI including her clitoris and instructing her how to masturbate. On 8 December 2021 the offender messages about being in the shower and close to the AOI, exchanges photographs and tells the AOI in response to a request from her about meeting that he would "like to". On 9 December 2021 the offender messages the AOI that he will be closer to her on the day that her mother will be late, and the AOI presumably alone. Finally on 12 December 2021 the messages are about what they may do at the anticipated meeting, the nature of any touching and the offender messaging that "I can message you when I'm on my way if you like?".
The third of the ways the Crown submitted establishes the intention of this offender 'to make it easier to procure the AOI to engage in sexual activity with him' by virtue of his communications with her arises from his frequent and continuous compliments about her appearance and how he liked her body over the period of time of the messages and introduced by the offender.
The fourth of the ways identified by the Crown establishing his intention arises from his communications, particularly on 7 December 2021, 8 December 2021 and 12 December 2021 intended to gain the trust of the AOI, by letting her feel that she was in control of the situation. The Crown submitted that in messages on 7 December 2020 the offender had asked the AOI to tell him what she looks like. After asking her if she was wearing a bra under singlet if she wants him to ask more questions, and subsequently asks if she wants him to ask even more personal questions. After describing how it would run his hand up her leg and onto her underpants and touching her clitoris, the offender asks the AOI, "do you want me to stop?", and "are you sure?". He later says "it's your body babe. You do what you want when you want." On 8 December 2021 after the AOI asks the offender if you really meant it when he said he wanted to meet, he replied, "I'd like to", but then asked if that made the AOI field worry. On 12 December 2021 when discussing what they might do if they meet up near Parramatta, the offender says to the AOI that he would do, "whatever you're comfortable with", that he would touch her "if she would like" and "if that's what she is comfortable with". In response to the AOI asking the offender if he would touch her "inside my undies lyk u said", the offender responded, "well that would have to be up to you completely" and that all she has to do is, "feel comfortable".
The Crown submitted that the court would be satisfied beyond reasonable doubt this conversation, and both the tone and content of the messages is intended to gain the trust of the AOI to make her feel she was in control of the situation at the time she was being groomed for the specific purpose of making it easier for the offender to procure her for sexual activity with him. The Crown asserted that it is open for the court to be satisfied beyond reasonable that the communications transmitted by the offender including those identified above, were transmitted with the intent to make it easier, in all ways identified, to procure the AOI to engage in sexual activity with him.
In respect to the element of the offender believing the recipient of his communications was under the age of 16 years; the offender in his recorded police interview, and in his evidence said that he was engaged in role-playing with someone he believed was an adult. He denied that he had sent any communication with the intention of making it easier to procure the recipient to engage in sexual activity with him, or that he believed the recipient to be under the age of 16 years. By virtue of its verdict of guilty, the Crown submitted the jury must have necessarily rejected the offender's explanation, and found beyond reasonable doubt, as the court would, that at the relevant time he believed the recipient to be under 16.
The Crown further submitted that the court could be satisfied beyond reasonable doubt that it was the offender who initiated communication with the AOI via the social networking site 'ChatIW', at the time using the online identity of "Wellhello". On 26 November 2021 he asked the AOI how old she was, and she told him that she was 14. Consequently, from the beginning of the offending on 26 November 2021, the offender was aware that the AOI represented herself to be a 14-year-old schoolgirl, and he believed that to be the case. Shortly after the initial contact on ChatIW on 26 November 2021 at the invitation of the AOI the communications moved to the Skype messaging platform. The offender informed the AOI that he was 35 years old, when in fact he was aged 45. On a number of occasions throughout the course of the period in which messages were exchanged between the offender and the AOI, the AOI referred to her age as being 14 and that she was going to school. The Crown submitted the court could be satisfied beyond reasonable doubt the offender believed the AOI was a 14-year-old schoolgirl, and lived at home with her mother, and as of 8 December 2021 he was "fantasising about being physically together with the AOI". On 9 December 2021 the offender wanted to meet the AOI and was exploring the possibility of a physical meeting between them, and on 12 December 2021 the offender had formed an actual or fixed intention to meet up with the AOI for the purpose of engaging in sexual activity as the Crown previously identified. The Crown also submitted that the court would be satisfied beyond reasonable doubt that the offender was motivated by a sexual interest in children with the characteristics of the AOI, being a 14-year-old schoolgirl.

The defence submissions as to established facts

Whilst the offence particularised conduct between the dates 26 November 2021 and 14 December 2021 (18 days), the messages giving rise to the offending occurred over a five-day period between 26 November 2020 and 12 December 20. At the time the offender was 45 years old at the communications were with various police officers posing as a 14-year-old girl. Ms Hutchinson submitted that the guilty verdict establishes the communication was with a single AOI, that the offender believed to be a 14-year-old girl. It was submitted that the evidence in the trial established that there was no prior relationship between the offender and the AOI and that it is also open to the court (a fact conceded by the Crown) that the conversations on Skype on 13 and 14 December 2021 are not and cannot be characterised as part of the commission of the offence. Properly characterised counsel for the offender submitted that the offence involved six discrete conversations all of which except one involved an exchange of messages back and forth with only one conversation (at times made up of numerous messages) occurring each day. There were 16 days between the first conversation on 26 November 2021 and the last conversation on 12 December 2021.
On 26 November 2021 the conversation spanned two platforms. Initially it took place on ChatIW an adult chat site and then Skype, the latter at the request and invitation of the AOI. On 27 November 2021 there was a single communication sent to the OAI by the offender, which said, "how are you?". There was no response to this nor any other communication on that date. The next conversation took place 10 days later on 7 December 2021, on which date the AOI initiated contact with the offender.
Counsel submitted that the court could not find, nor was it necessary to find that some of the conversation was anything more than an innocuous "chat", but other conversation, notably tab 5 of exhibit A at page 7 (7 December 2021) amounted to indecent, with clear sexual overtones, including discussions about kissing, nudity, rubbing the AOI's clitoris, and masturbation. At no time did the offender send any indecent material by way of images or photographs to the AOI. The photograph that he sent was of his own face, it was not 'photoshopped' or disguised, and the offender also sent a photo of the view outside from his work desk in his home.
Whilst conceding a number of the messages were suggestive and involved clear reference to sexual conduct, and as such, clearly indecent, they do not rise to the level of the offender cajoling or endeavouring to persuade the AOI, and certainly do not entail any threats to do anything either while online and conversing, or when apart for any reward or favour. In respect to the conversation on 7 December 2021 concerning the AOI masturbating, counsel asserted that neither the tone nor the text sent by the offender could be characterised as an act of persuasion, following as it did repeated questions by the AOI as to what she should do or how she should do it.
Counsel also noted that there is no evidence in the trial that suggests at any time the offender sought to persuade, cajole, or threaten the AOI to send images of an intimate or sexual nature to him, or to broadcast any such images or act. At no time was any gift or gifts promised by the offender to the AOI to provide such images.
The evidence in the trial does not support what the Crown submitted was "persistent pursuit" of the AOI by the offender. Communications on 7 December 2021, 9 December 2021 and 12 December 2021 were initiated by the AOI. Counsel submitted the court could find as a fact there was no excessive communication or "bombardment" of contact nor attempts by him to extend onto other modes of communication, such as SMS messages or phone calls. The evidence in the trial also discloses unequivocally that there were often days between instances of contact. Counsel also asserted that the court could find that it was the AOI (the undercover police) who regularly encouraged the continuing participation of the offender in the conversations.
Ms Hutchinson conceded on behalf of the offender that the jury, by its verdict, found that at some point during the period of the communications, the offender had an intention of making it easier to procure the AOI to engage in sexual activity with him. However, counsel submitted it remained reasonably open to the court to find that the intention on the part of the offender was limited to kissing and indecently touching the AOI based on references and the content of messages on 7 December 2021 and 12 December 2021, and no more. Counsel submitted that the jury verdict cannot establish beyond reasonable doubt that the offender intended by virtue of communicating messages to the AOI to engage in sexual activity beyond that identified in messages.
It was submitted that finding is consistent with the jury's verdict in that the intention of the offender was, at best, one of the real possibility of sexual activity arising from the communications, as opposed to a fixed intent to pursue that course. In support of this counsel noted by 13 December 2021, as the evidence in the trial disclosed, the offender had abandoned any such intention of pursuing the possibility of any meeting and therefore engaging in any potential sexual activity. At no time were telephone numbers exchanged, or even sought from the AOI by the offender, there was no evidence that the offender had purchased any materials, conducted any Internet searches, or made any preparations for any meeting. In fact, there was no evidence in the trial beyond the AOI saying she lived one train stop from Parramatta, a 10-minute drive with her mother, and that this was where the offender said his work meeting on the Wednesday was to take place, as to any particular or detailed or even general arrangements as to place and time of the meeting. This is to be distinguished from a case where the evidence demonstrates a real, cognate plan in place to meet, and is significantly less serious than cases in which an offender is apprehended having attended a planned meeting or on their way to such a meeting.

Determination of facts

As previously noted it is the submission of the Crown that the court would be satisfied beyond reasonable doubt that the conversations, considering both the tone and content of the messages were transmitted by the offender to the AOI at a time he believed her to be a 14-year-old schoolgirl. A proper consideration of individual messages and the entirety of the messages more broadly discloses that the offender sought to gain the trust of the AOI by continually reassuring her and complimenting her. He then introduced sexually suggestive content culminating in more explicit language as to how he wanted to touch the AOI, including rubbing her clitoris over her underpants, whilst kissing her deeply and rubbing her clitoris. He also introduced the topic of the AOI engaging in masturbation and told the AOI on a number of occasions during the period of the messages that he wanted to meet her, presumably to have the AOI engage in sexual activity with him. The Crown asserted that the court could find beyond reasonable doubt that the offender's intention during the conversations was to make it easier for him to procure the AOI to engage in sexual activity with him, extending beyond the content of the messages to include sexual intercourse and other activity of an indecent and sexual nature. He intended to gain the trust of the AOI to make her feel she was in control of the situation at the time she was being groomed for the specific purpose of making it easier for the offender to procure her for sexual activity including sexual intercourse with him, and he did so at a time he believed the AOI was a schoolgirl aged 14 years. The Crown asserted that the court would also find beyond reasonable doubt that at some time during the offending period the offender had intended to meet with the AOI for the purpose of engaging her in sexual activity with him.
Having regard to the elements of the offence as I must, and the jury's guilty verdict, the view of the facts adopted by me for the purposes of sentencing must be consistent with the verdict of the jury. In my opinion it is readily apparent having regard to the jury verdict the offender at a time or times during the period had or developed the requisite intention of making it easier to procure the AOI for sexual activity with him. It is most likely this intention developed on 7 December 2021. Whilst the Crown has submitted that the court would be satisfied beyond reasonable doubt that such sexual activity included sexual conduct beyond what is stated in the messages and includes sexual intercourse, particularly in the messages of 7 December 2021 which include kissing, showering, touching the AOI's clitoris as disclosed in the messages of 7 December 2021 and 12 December 2021. Considering the nature and the actual content of the messages of 12 December 2021 and leading up to 12 December 2021 on 7 December 2021, 8 December 2021, and 9 December 2021, I am not satisfied beyond reasonable doubt that the offender intended any sexual activity beyond that particularised in the offending messages. I am of the view that the offender's intention as the jury found was to make it easier by virtue of the communications to procure the AOI to engage in sexual activity with him. As to the nature of the actual sexual activity, I could not be satisfied, notwithstanding the Crown's assertions, that it could include anything beyond the content of the messages. In other words, the offender's intention as found in the jury's verdict was not of a "fixed intent" to engage in any particular or identified sexual activity, but through his actions, the real possibility of such sexual activity, in particular, sexual conduct of the nature articulated in the messages.
It is also apparent, and I am satisfied beyond reasonable doubt that the offender communicated with what he believed was a single person, a 14-year-old girl. There was no prior relationship between the offender and the recipient of his messages. I'm also satisfied that the offence involved five discrete conversations with all but one involving a number of messages exchanged between the offender and the AOI, within a single conversation occurring each day. There was no conversation on 27 November beyond the offender's message which said, "how are you?". The relevant conversations commenced on 26 November 2021 initially on ChatIW which the evidence disclosed was an adult chat site but moved on that date at the behest of the AOI to Skype. Whilst the Crown have identified many of the conversations on 26 November 2021, 7 December 2021, 8 December 2021, 9 December 2021, and 12 December 2021 as gaining the trust of the AOI, and introducing sexually suggestive material and ultimately suggestions of more explicitly sexual conduct and references to meeting, much of the conversation I accept is relatively innocuous. I'm also mindful that throughout the various conversations the offender was not infrequently encouraged by the AOI to continue to participate in the conversation. Be that as it may the AOI on a number of occasions disclosed in messages to the offender that she was 14 years old, living with her mother and attending school.
It is also apparent that any intention to meet was an idea or lose plan or arrangement at best, which was pursued more intently and repetitiously by the AOI in the conversations following & December 2021. I am satisfied there was no plan or detailed or specialised arrangement in place for such a meeting, and by 13 December 2021 the offender had abandoned or withdrawn from ongoing contact with the AOI.

General principles - Commonwealth Sentencing

The fundamental principle in sentencing a federal offender is that the court must impose a sentence that "is of a severity appropriate in all the circumstances of the offence": s16A (1) Crimes Act (Cth). In addition, the court must specifically consider the matters in s16A (2) of the Act, to the extent that they are relevant and known. Whilst those key statutory factors are to be addressed, the statutory list of factors is not exhaustive. Key common law principles such as proportionality, and where relevant parity and totality also apply.
The maximum penalty serves as an indication of the seriousness with which Parliament views a particular offence, a yardstick to sentencing and a basis for comparison between the case before the court and worse case: Markarian v The Queen (2005) 228 CLR 357 at [31]. Subject to limited statutory exceptions, s 16A of the Crimes Act (Cth) requires an "instinctive synthesis" of the relevant considerations: Markarian at [37]-[39].
Ultimately as is stated in s 17A (1) of the Crimes Act 1914 (Cth): "(1) A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case."

Child Exploitation Offences

The offence for which the offender was found guilty by the jury (s 474.27(1) Cth Criminal Code) is found in Subdivision F of Division 474 of Part 10: 6 of the Cth Criminal Code Act 1995. In written submissions the Crown hopefully set out the legislative regime and its purpose. Section 474.27 is one of four principal categories of offence relating to the use of a carriage service involving sexual activity with persons under 16 as already noted the maximum penalty for this offence upon conviction is 15 years imprisonment.
The Crown submitted that the policy behind offences in Subdivision F of Division 474 of Part 10: 6 of the Act is the significant public interest in protecting children from conduct that inappropriately sexualises them at an age where they are ill-equipped to protect themselves or respond either appropriately or in their own interest: R v Nahlous [2013] NSWCCA 90 at [71]. This protection is achieved through the legislative objective of targeting adult offenders who exploit the anonymity of telecommunications services to win the trust of a child as a first step towards the future sexual abuse of that child. The underlying rationale for the offences is to allow law enforcement to intervene 'before a child is actually abused.' (Tector v R [2008] NSWCCA 151 at [85]). Sexual activity is not restricted to physical contact and includes any activity "of a sexual or indecent nature". Such a definition readily accommodates indecent or suggestive "chat" communications as was identified in Adamson v The Queen [2015] VSCA 194 at [41] per Warren CJ, Redlich, and Weinberg JJA.
The statutory offence under s 474.27 is unquestionably serious. There is a significant public interest in protecting children from conduct that inappropriately sexualises them at an age where they are ill-equipped to protect themselves or respond either appropriately or in their own interest. The public mischief, which the statutory amendments that introduce the offences and made such conduct criminal, is a serious and substantial one (R v Nahlous [2013] NSWCCA 90 at [72]). In Western Australia v Collier [2007] WASCA 250, the principles that govern sentencing for offences of "grooming" under s 474.27 as well as "procuring" contrary to s 474.26 of the Cth Criminal Code Act were relevantly set out as follows: 1. Conduct involving the Internet as a means of accessing children and beginning the grooming stage for subsequent sexual offending is extremely serious, given the vulnerability of children and the long-term serious consequences which inevitably result from sexual offending against them. It is fundamentally important to deter potential offenders [24]. 2. An offender's conduct is no less reprehensible if an offender is communicating with a person believed to be a child, although not actually so then if communicating with a person who is in fact a child [25]. 3. As of 2008, there had been a firming up of sentences in cases involving sexual offences against children as the courts have gained a better understanding of the long-term effects of that kind of offending upon the children concern [26]. 4. Terms of immediate imprisonment are ordinarily imposed. These terms varied considerably in length, no doubt because there is considerable scope for variations in the facts giving rise to offences of this kind [27]. 5. In cases involving sexual offending against children, the seriousness of the offence will often outweigh personal circumstances, even in the case of a first offender [42]. 6. Adult persons who make use of the Internet to locate, and make contact with, children so as to procure them to engage in sexual activity can ordinarily expect to receive a term of immediate imprisonment. As with offences concerning possession of child pornography there is a paramount public interest in protecting children from sexual abuse [43].
In the present case the crown noted that the creation of the fictitious online identity and the involvement of police in communicating with the offender is necessary to enhance the prospects of detection and accordingly deter offenders and minimise the use of the Internet for the sexual corruption of children. This offence was carefully designed by the legislature so that law enforcement authorities could identify persons who set about using the Internet for this purpose (Rampley v R [2010] NSWCCA 293 at [37]). Consequently, cybersex offences involving communications by an offender (such as in this case) with an undercover police officer posing as a child does not constitute a mitigating factor on sentence: Meadows v R [2017] VSCA 290 at [12 (a)].
The Crown noted that while the statutory presumption that the offending has caused a victim harm will not be enlivened in the circumstances of the present case, an offender's conduct is not to be regarded as less morally reprehensible merely because the person to whom the communication was made was, unbeknown to him an undercover police officer and not a child as they believed.
The Crown also submitted that the building of trust is very often a necessary part of the grooming process in offences of this nature, that is, one of the elements recognised as 'typical' in such cases. The objective of procuring the victim's participation in sexual activity is advanced by the use of explicit language. This is done in order to introduce the victim to what the offender has in mind (intends), and to test whether the images or description: Meadows v R [2017] VSCA 290 at [45]).

Objective Seriousness

The crown identified what it submitted were two elements present in the offence that are "typical" for offences of this kind. Firstly, the offender over time by virtue of the nature and tone of his messages, engendered a sense of trust on the part of the AOI, letting her feel that she was in control of the Online relationship. Secondly, by gaining the trust of the recipient and introducing more sexually suggestive chat, and more explicit messages as to what he would like to do with the AOI, arranging a meeting presumably for the purpose of engaging the AOI in sexual activity with him. The Crown submitted that those offences where the "usual pattern" as identified in this case is present, a sentence of full-time imprisonment is ordinarily imposed to reflect the underlying policy. Offending that includes the two elements, interaction to forge trust and a meeting absent a positive finding of exceptional circumstances require the imposition of an actual period of time of imprisonment.
The Crown submitted that both elements of a typical usual pattern offending are present. Throughout the communications the offender by his language continued to engender trust of the AOI to make her feel that she was in control of the relationship. He then introduced more sexually suggestive, albeit at times ambiguous language into the messages culminating in more explicit explanations as to what he wished to do. The offending took place over 16 days with 5 discreet conversations each involving numerous messages. The offender was told by the AOI on a number of occasions that she was 14 years old, living with her mother, and attending school. As early as during the first conversation on ChatIW on 26 November 2021 the offender asked the AOI how old she was, and she said 14. The offender responded that he was 35, when he was in reality 45, but still an age difference of 21 years.
On 7 December 2021 asked the AOI about the size of her breasts, that it would be better if she was wearing a skirt because it will allow him easier access for touching the AOI. He then said that he would run his hand gently up her leg under her skirt, onto her underwear and rub her clitoris. The offender went on to say while doing this he would kiss the AOI deeply on her lips. Following this the conversation moved to the AOI masturbating herself. On 8 December 2021, the AOI messaged that she would have a shower before her mother arrived home, and the offender telling her that he'd love to shower with her, to be close to her. On 8 December 2021 the AOI asked the offender "u want to see me?". The offender said, "I'd love to". On 9 December 2021 the AOI asked the offender, "did u rlly mean it when u said u wanted to meet up". Ultimately, in answer to this question the offender said, "I do". The Crown submitted that this establishes beyond reasonable doubt that the offender's intention went beyond an electronic meeting and included physically meeting with the AOI for the purpose of engaging her in sexual activity with him. The Crown submitted the intended sexual activity extended beyond what the offender had disclosed in the messages and involved more serious conduct than simply kissing or rubbing her clitoris.
Whilst the Crown conceded in oral submissions that the objective seriousness of the offence was less than those comparable cases referred to, notably Meadows v R [2017] VSCA 290, Rampley v The Queen [2010] NSWCCA 293, Asplund v The Queen [2010] NSWCCA 316, Rajasekar v R [2017] NSWCCA 113, and Adamson v The Queen [2015] VSCA 194, nonetheless, the offending follows a typical pattern of engendering the recipient's trust, believing her to be a 14 year old school child, introducing more sexually suggestive content, with a view to making it easier to procure the AOI to meet with him and engage her in sexual activity. The crown submitted that while the court on sentence may not be able to determine whether the offender's sexual interest in the AOI was transient or demonstrative of a more entrenched sexual interest in children, the court would be satisfied it continued for 16 days. The inevitable conclusion the court would therefore draw is that the offender had a sexual interest in someone with the characteristics of the AOI for the period of the messaging.
In submissions Ms Hutchinson for the offender conceded that offending occurred during the period 26 November 2021 up to and including 12 December 2021. Of those days conversations giving rise to the offence place on 26 November 2021, 7 December 2021, 8 December 2021, 9 December 2021, and 12 December 2021. In all there were five discreet conversations during the period that gave rise to the offence. Council noted that the unambiguous facts disclose offender communicated with a single person and the jury found the offender to believe was a 14-year-old girl. It was apparent and a fact agreed in the trial that the AOI was used by a number of adult male and female police officers. There was no prior relationship between the offender and the AOI, there was no 14-year-old girl. This establishes that no harm can be presumed to have been caused by the offending to any person. In Adamson v The Queen [2015] VSCA 194 the court said at [30]: "Where the victim of the offending is not child or a minor, or where there is no evidence as to whether a child is involved, no inference that the victim has been harmed will arise. The presumption that the prohibited conduct has caused the victim harm will not be enlivened."
This offence involved a single assumed online identity. There were not multiple actual child victims. As noted, the offending conversations took place on five occasions during the 16-day period between 26 November 2021 and 12 December 2021. There was no real age or power differential between the offender and the AOI to be factored into an assessment of the offending as a potential aggravating feature.
Counsel submitted that properly characterised, the offence involved six discreet conversations, with the message on 27 November 2021 set by the offender asking, "how are you?" Never being answered. The next conversation took place on 7 December 2021 some 10 days later. On that date it was police who initiated contact with the offender. On 26 November 2021 the conversation spanned two platforms, ChatIW and Skype. It was the AOI who instigated the move from ChatIW, the adult chat site to Skype.
Counsel also took issue with the submission made by the Crown that the otherwise innocuous and "polite" conversation engaged in by the offender with the AOI was intended to engender her trust and part of the broader intention on the part of the offender to make it easier to procure her to engage in sexual activity with him. This submission counsel asserted disregards the language used by the offender in conversations on 13 and 14 December 2021. Implicit if not explicit in the evidence in the trial was that the offender had voluntarily withdrawn or abandoned any arrangement to meet with the AOI. These conversations on 13 and 14 December 2021 it was submitted could not therefore have been accompanied by the guilty intention attributed to earlier, more innocuous conversations the offender engaged in. Counsel however, conceded that conversations did include sexually suggestive and indecent suggestions including kissing, nudity, running his hand under the skirt of the AOI onto her underpants and rubbing her clitoris, and masturbation. The offender at no time sent any indecent material or photographs to the AOI. He sent a photo of his face and photo taken of the view outside his home where he was working at his desk.
Counsel noted that the offender never sought to persuade, cajole or threat the AOI to do anything, while either online or a part, for any reward favour. Ms Hutchinson submitted the conversation regarding how the AOI might approach masturbation could hardly be characterised as an act of persuasion by the offender following as it did repeated questions by the AOI as to what she should do or how she should do it. At no time did the offender request, or seek to persuade, cajole, or threat the AOI to send images of an intimate nature of herself to him, or to broadcast any such act. No gifts or money promise or made by the offender.
Unlike many cases of this type, counsel submitted there was no excessive communication or "bombardment" of contact by the offender, nor any attempt by him to extend onto other modes of communication such as telephone calls or SMS messages. There were often days between instances of contact. There was no evidence of persistent pursuit of the AOI by the offender, and this is borne out by the fact that communications were often initiated and continued by the AOI, particularly on 7, 9, and 12 December 2021. Counsel also submitted that a factor mitigating the seriousness of the offence is that within the various chats, the offender's participation was encouraged by the undercover police officers.
As to the extent and degree of intention on the part of the offender to engage in future sexual activity and the nature of the sexual activity intended, counsel conceded that by its verdict the jury found that some point during the offence., The offender had any intention of making it easier by virtue of the conversations to procure the AOI to engage in sexual activity with him. Counsel submitted it would be open to the court to find that intention was to kiss and indecently touch the AOI based on the references and text of his messages on 12 December 2021. Notwithstanding the Crown's submission that the court would find the offender had an intention to engage in sexual activity with the AOI beyond that identified in the messages there is no evidentiary basis for such a finding. The offender's intention it was submitted was at best, one of the "real possibility of" sexual activity, as opposed to a fixed intention to pursue that course. In DPP (Cth) v FM [2013] VSCA 129 the Victorian Court of Appeal (Ashley, Weinberg and Coghlan JJA) said at [67]: "There is no reason, in principle, why an accused should not be convicted of "procuring" or "grooming" if, at the time of communicating, the accused intends, as a real possibility, engaging in sexual activity with the person to whom he is communicating. He need not, in our view, have formed a "fixed intent" to pursue that course. To the extent that the ruling may have suggested a need for the Crown to establish such an intent, we disagree. Pure "fantasising", however, is in an altogether different category, and cannot be regarded as a state of mind that allows for a finding of the requisite intent."
Counsel submitted that the evidence disclosing that by 13 December 2021 the offender had firmly abandoned and withdrawn any intention of engaging in sexual activity reinforces the conclusion that, at most, his intention at the time of communicating with the AOI was of the real possibility of engaging in sexual activity with the person. Counsel noted that no telephone numbers or addresses were ever exchanged. There is no evidence that the offender had purchased materials, conducted Internet searches, or made any actual preparations for a meeting. This is to be distinguished from a case where the evidence demonstrates a real cognate plan in place to meet and is significantly less serious than cases in which an offender is apprehended having attended a planned meeting. In this case there was no actual or detailed arrangement for any meeting at any specified place or time, beyond the Wednesday the AOI's mother was said to be working late, and the offender had initially said he had a work meeting in Parramatta. Apart from a message on 12 December 2021 from the offender that he would message the AOI when he was on his way to the meeting in Parramatta, or the suggested meeting with the AOI (which is clearly ambiguous), there is no greater clarity or particularity about the details of the proposed meeting.
I am satisfied consistent with the jury's verdict in the trial that at some point during the exchange of messages and communications, the offender developed a sexual interest in the AOI, and transmitted the messages with the intention of making it easier to procure her for sexual activity with him, at the time the offender believed the AOI to be a 14-year-old girl. I do not, however, accept the Crown's submission that the court can therefore conclude the offender had an actual or fixed intention to engage in particular sexual acts, including beyond those disclosed in the messages commencing 7 December 2021. Such a finding is not inconsistent with the jury verdict. The offenders sexual interest related to the 'real possibility' of engaging in sexual activity arising from the conversations. This is consistent with the view expressed by the Victorian Court of Appeal in DPP (Cth) v FM [2013] VSCA 129 to which I have been referred. There is no requirement or obligation upon the Crown to establish beyond reasonable doubt the nature of the sexual activity intended by the offender.
In any event, on the facts of this trial I am satisfied of two things. Firstly, having regard to the entirety of the messages of the offender and the context of the conversations in which they were transmitted, I cannot be satisfied beyond reasonable doubt that the sexual intention of the offender went beyond the real possibility arising from the communications of engaging in the indecent and sexual activity contained in the texts initially on 7 December 2021. Secondly, by 13 December 2021 the offender had abandoned such intention and withdrawn from the communications or at the very least the real possibility of any anticipated future sexual activity with the AOI. This is borne out further by the uncontroversial fact that the offender was arrested in Lawson in the Blue Mountains where he was working from home, on the day of the proposed Wednesday meeting.

The Offender's Subjective case.

An affidavit sworn by the offender in August 2023 was tendered on his behalf the sentence proceedings. In addition, in Crown bundle also tendered on sentence was a sentencing assessment report (SAR) prepared by Anna Johansson, dated 2 August 2023. The offender also gave evidence in the trial some of which related to his personal circumstances. Lee Austin Dowd, a long-term close family friend of the offender also gave evidence in the trial proceedings. The affidavit and other evidence generally referring to the offenders personal and subjective circumstances was not the subject of any opposition by the Crown. However, the Crown did submit that in offences of this type less weight, relatively speaking, will be accorded to what might otherwise be significant mitigating factors.
The offender was born in Brisbane on 29 January 1976, he is now 47 years old and was aged 45 at the time of the offence. He is the only child of his biological parents. When he was two months old his biological father drowned in a scuba diving accident. Shortly after the death of his father, his mother and the offender moved to Townsville in North Queensland. His mother re-partnered with a man named Stanley and lived with him until the offender was about three years old. The offender has little memory of this time, although notes in his affidavit that Stanley was abusive. His mother then married another man named Allan who she the offender resided with until the offender was in about Year 5 at school. At this time his mother separated from Allan. The offender describes Allan as controlling and abusive, and he recalls witnessing his mother have physical altercations with Allan on a number of occasions.
Following the separation from Allan, the offenders mother re-partnered with her current partner, Shayne, the offender's stepfather. He describes their relationship as a good one and his stepfather as being a good role model. In Townsville the offender attended a Church of England primary school, "The Cathedral School". He recalls during primary school he spent a lot of time seeing therapists. Not long before the offender's 12th birthday, his mother and stepfather sold everything and left Australia. The family spent about a year travelling through Indonesia, Malaysia, Singapore, and Thailand before moving to Japan for two years, with the offender learned to speak Japanese. Whilst in Japan the offender attended an international school where he completed Grade 8. About six months before his mother and stepfather returned to Australia, his mother sent the offender back to Townsville where he lived with his grandmother and commenced secondary school midway through Year 9 at "The Townsville Grammar School" on a partial scholarship. The offender continued his education at Townsville Grammar School until the end of year 11. He completed year 12 at Townsville State High School. The offender commenced university studies whilst completing year 12 at high school. He was studying languages and linguistics at university whilst simultaneously completing his year 12 studies.
After completing high school the offender changed study from languages and linguistics at university to psychology. He did not complete the degree. At age 18 he moved out of home and lived with two friends. When he was 21 the offender's parents relocated to the USA where they have lived since. His mother is now aged 69 and his stepfather Shayne is 59.
The offender resides at Lawson in the Blue Mountains and has lived in his current premises since 19 April 2013. He lives with Maryanne Shipp his former wife and mother of his sons Finnian aged 8 and Lachlan aged 9 years. Maryanne is 44 years old. The offender also has another son, Xavier, whose biological mother is the offender's ex-partner, Karen Hale. Xavier is 14 years old, and both the offender and Karen Hale share his custody arrangements on a 50-50 basis.
The offender has had two significant relationships. The first was with Karen Hale the mother of Xavier. Ms Hale and the offender separated amicably culminating in the 50-50 custody arrangement for their son Xavier. The offender met Maryanne Shipp at work. They were together for 11 years and separated in September 2021. They elected to continue to cohabitate under the one roof at the Lawson house in order to continue to care for their sons Lachlan and Finnian. Ms Hale continues to live at the house with the offender and children.
Xavier is now 14 years old has been diagnosed with ADHD and is currently being assessed for "autism spectrum disorder". Finnian who is 8 and Lachlan who is 9 years old at each been diagnosed with level 2/3 autism spectrum disorder. Finnian also has an additional diagnosis of ADHD and Lachlan and additional diagnosis of both ADHD and anxiety. All three children are managed with various medications, treatment by psychologists, occupational therapists, and speech therapists. The offender's specific duties and commitments with respect to the children are as follows: 1. Dropping off and collecting Finnian and Lachlan to and from school a number of days each week. 2. Making himself available to collect and care for them in the event of illness or school refusal. 3. Driving Xavier to basketball training and games up to 6 times a week, in some cases as far away as Port Macquarie. 4. Taking all three boys to paediatric appointments at Kidmed Paediatric Clinic at Woodford NSW every 3 to 6 months. 5. Taking Lachlan to therapy sessions every Saturday at Move Clinic, Katoomba. 6. Taking Finnian to therapy sessions every Monday at Move Clinic at Katoomba. 7. Joint psychology appointments for both Lachlan and Finnian every second Wednesday which are conducted in home, for half an hour for each child, and 8. Various ad hoc therapy sessions throughout the year as they arise on a need's basis.
The offender is also responsible for ensuring that all three children have taken their various medications on schedule every day, communicating with the schools regarding educational concerns and behavioural issues, and cooking and preparing meals for them.
Neither of the younger boys Lachlan or Finnian are able to go to sleep without a parent present. Accordingly, either the offender or their mother Maryanne or each of them are involved with getting the boys to sleep every night and dealing with toileting accidents. Both Maryanne and the offender each have separate mattresses in the boy's bedrooms. This has been the case for at least three or four years prior to separation. The offender expresses concern as to the difficulty his sons would have two adjusting to his absence, having regard to his experience with them and their ability to cope with and adjust to change.
The offender has worked for the NSW government in the Department of Communities and Justice since 2007. For 11 years he was employed as a manager at the Blue Mountains and Lithgow offices. From May 2019 he was a manager within the "project management office" section for information and digital services with the Department of Communities and Justice. The offender is presently suspended his employment.
The home at Lawson is subject to a shared mortgage between the offender and his ex-partner, Karen Hale. In his affidavit the offender deposes that he currently has debts in excess of $530,000. He expects he will lose his employment and it is likely the family home will need to be sold. His ability to provide financial assistance to the family, including his special needs children will be reduced. If he receives a full-time custodial sentence, the offender will not be able to assist in the day-to-day care arrangements for his sons.
The offender deposes that both Maryanne Shipp and Karen Hale are aware that he has been found guilty by a jury of using a carriage service to transmit communications to someone believed to be under 16 years old with the intention of making it easier to procure the recipient to engage in sexual activity with him. Neither Maryanne nor Karen has sought any change in childcare arrangements in place, based on the jury's finding of guilt. As noted, the offender continues to live with Maryanne at the Lawson premises, and each is endeavouring to focus on the best outcomes for the children.
The offender has been a volunteer member of the NSW Fire service for more than 15 years. In that capacity he fought bushfires in the 2013 fire event that impacted upon the Blue Mountains. He has attended various "callouts", and completed basic, advance, and village firefighter qualifications as well as senior first aid courses.
The offender has in the past attended numerous community activities, including community education sessions on behalf of the RFS, fund raising and doorknocking. He has assisted in trading new volunteers in basic firefighting skills. He has been a member of both the Woodford rural Fire Brigade and the Faulconbridge rural Fire Brigade where he spent about five hours each week and 15 hours each week respectively on brigade activities. The offender was the president of the Faulconbridge rural Fire Brigade for a two-year period between 2008 at 2010. The offender has ceased being an active member of the RFS due in part to his high level of family commitment with his children and also in part due to these proceedings.
The offender has continued to coach his son's basketball team subject to restrictions placed upon him as a result of the offence. Coaching and associated responsibilities occupy up to 4 hours each week of the offender's time.

The offender's character.

The offender has no criminal record and has never been charged with any criminal offence in any state of the Commonwealth. He has no traffic record or infringements. In the trial the offender's long-term family friend, Lee Austin Dowd gave evidence as to the offenders positively good character. However, as has been submitted by the Crown and acknowledge by Ms Hutchinson on behalf of the offender, such good character and absence of any criminal convictions is afforded less weight on sentence in matters such as this.

The offender's risk of reoffending and prospects of rehabilitation

Prior to the offending it is uncontroversial, and I accept, that the offender led in ordinary and law-abiding life. He was employed on a full-time basis as a manager and subsequently as a project manager in IT for an NSW government department on a long-term basis. It is apparent that he has also engaged his community extensively in a voluntary capacity through his involvement in the RFS in the Blue Mountains. He has and continues to be intrinsically involved in the care and support of his three sons each of her as being diagnosed with ADHD, and variously autism spectrum disorder and anxiety. The two youngest boys, in particular, require closely supervised and repetitious ongoing care.
I accept that upon his arrest at his home in Lawson the police undertook a thorough search of the premises with the full assistance of the offender. He provided the password for each of the applicable electronic devices seized by police and facilitated the execution of the search warrant by way of his cooperation with police. No evidence was found by police of any 'child abuse material' or other child pornography or pornographic material in the course of their extensive search of the premises and the seized electronic devices.
In the SAR prepared by Anna Johansson, dated 2 August 2023, the author notes that the offender continues to reside with his ex-partner and children at the family home. Despite a strained relationship with his ex-partner, the offender continues to offer support "in caring for their high needs' autistic children." The offender reported a positive relationship with his parents and friends who live overseas. She said that the offender demonstrated insight surrounding how his actions negatively affected his family and that he is willing and able to undertake intervention and willing and able to undertake community service. The offender has had no prior period of supervision by Community Corrections, and his engagement during the assessment. For the preparation of the SAR was deemed satisfactory.
The offender has been assessed as a "low risk of reoffending according to the level of service inventory". In the event the offender was sentenced to a community-based order it would be supervised by Community Corrections. To facilitate any supervision plan, community corrections would refer the offender to a Corrective Services NSW Forensic Psychologist for further sex offender assessments, to obtain intervention and suitable case management strategies. He would also be referred to a psychologist for general mental health assessment and treatment, and his supervision would utilise "Practice Guide to Intervention" modules throughout the period of supervision with a focus on managing stress and anger, as well as self-awareness to explore healthy coping strategies and gain insight into his behaviours.
In the course of his assessment for the preparation of the SAR the offender was referred by Community Corrections to CSNSW Psychology Services for the purpose of a presentence consultation due to the offence being a "sex offence", with the recipient of his communications someone believed to be under the age of 16 years. The psychologist to whom the offender was referred was provided with facts prepared by the investigating police. The psychologist was also aware that on 26 October 2022, 31 October 2022 and 1 November 2022, the offender attended Lawson public school in breach of his then bail conditions. In any event, the psychologist assessed the offender's risk of sexual reoffending by use of the Static-99R (2016 version), an actuarial risk assessment scale to estimate an individual's risk of sexual reoffending. The offenders total score on the STATIC-99 was 0. This assessment placed the offender in the "Below Average Risk" range relevant to other male sex offenders. This result was based on his age and the victim (the AOI) being unrelated.
The author of the 'pre-sentence consultation report', senior psychologist (York) Xiang Yan Hong noted that based upon the offenders "below average risk" level he is ineligible for Sex Offender Programs offered by corrective services NSW. Should he receive a supervised sentence with community corrections, the offender should be referred to CSNSW psychology service for further assessment of his dynamic risk factors and to determine his suitability for community-based sex offender programs.
Whilst the offender's assessment by the CSNSW senior psychologist does not include dynamic risk factors, thus limiting the comprehensiveness of the report, nonetheless he has been assessed as a "below average risk" for risk of sexual reoffending compared with other men who have offended sexually. Based on his low risk level, the offender will be ineligible for sex offender programs offered by corrective services. However, he would be referred to CSNSW psychology service for further assessment of his dynamic risk factors in the event he was supervised in the community, by community corrections.
Taking into account the offender's inherently unremarkable life up to the time of the offence, his sound employment history, his historical and continuing commitment to his children and to the community more generally through his long engagement with the RFS, as well as absence of any criminal record or record of traffic violations, coupled with his low-level risk assessment as contained in the report of Xiang Yan Hong, Senior Psychologist; I am of the opinion that the offender is someone unlikely to offend. Whilst I recognise in cases such as this, which involved the offender using the internet for the purpose of making it easier for him to procure the recipient of his messages (that he believed at the relevant time to be under 16) to engage in sexual activity, that the weight of authority recognises the principle of general deterrence as a paramount consideration in sentencing. It necessarily follows, therefore, at least in a relative sense, that less weight will be afforded to what might otherwise be significant mitigating factors. That, however, is not to say that less weight is to be accorded to good character in any absolute sense (R v Gajjar [2008] VSCA 268 at [27] - [28]). In the circumstances of this case having regard to the clear evidence in the trial that as of 13 December 2021 the offender had at the very least withdrawn from the relationship and any proposal to meet and therefore engage in some kind of sexual activity is also a relevant consideration in my view as to his future prospects generally and the likelihood of his reoffending. I am of the view that the offender is someone who is unlikely to reoffend. As noted, his hitherto ordinary and law-abiding life, coupled with the nature and circumstances of the offence do not imply a risk of reoffending.

Section 16A factors

The appropriate sentence is to be determined, at least in part, by reference to s16A Crimes Act 1914 (Cth). That section requires me to have regard to the matters set out in s16A (2) of the Act as are relevant and known to me. Whilst the matters in s16A (2) are not exhaustive or a catalogue of the only considerations that can be taken into account, they are matters to which I must have regard along with any other matter that the law would permit me to have regard to. I will have regard to the following: 1. s16A(2)(a) The nature and circumstances of the offence: 1. I have already referred to this in these remarks. 1. s16A(2)(c) The offence forms part of a course of conduct: 1. I have already referred to this earlier in these reasons. The conduct giving rise to the offence occurred on 5 days (each a single conversation involving the exchange of numerous messages), during a 16-day period. 1. s16A(2)(f) The degree to which the person has shown contrition for the offence: 1. It is uncontroversial that the offender pleaded not guilty to the charge and the matter proceeded to trial, where he was found guilty by a jury of 12. In the preparation of the SAR dated 2 August 2023, he maintained his denial of the offence. 1. s16A(2)(h) The degree to which the person has cooperated with law enforcement in the investigation of the offence: 1. As already observed in these reasons, the trial was conducted on the basis that the offender did not at the relevant time believe the recipient of the messages to be someone under the age of 16 years, and that he at no time intended by the communications to make it easier to procure the recipient to engage in sexual activity with him. As such the ambit of the factual dispute ultimately for the jury to resolve, was relatively narrow. In addition, the evidence in the trial, and submissions on behalf of the offender that are unchallenged, are that the offender cooperated fully with NSW Police in the investigation by facilitating the execution of the search warrant, and providing the police with access to the house, as well as providing the password of each of the applicable electronic devices seized. It was submitted, and in my view appropriately, that the offender should receive some discount for this past cooperation, as well as confining the issues at the trial to his belief and intention. 1. s16A(2)(j) The deterrent effect that any sentence or order under consideration may have on the person: 1. I have earlier referred to the importance of specific deterrence and the work it must do in this sentencing task. 1. s16A(2)(ja) The deterrent effect that any sentence or order under consideration may have on other persons: 1. I have earlier referred to the importance of general deterrence in this sentencing task. 1. s16A(2)(k) The need to ensure that the person is adequately punished for the offence: 1. I am of the view that the order which I will shortly impose will provide adequate punishment. 1. s16A(2)(m) The character, antecedents, age, means and physical or mental condition of the person: 1. I have referred to these matters in considering the offender's subjective case earlier in these reasons. 1. s16A(2)(n) and s16A(2AAA) The prospect of rehabilitation of the person: 1. I have considered the offender's prospects of rehabilitation generally, and more specifically his likelihood of reoffending or not reoffending in the future, earlier in these reasons at paragraphs 75 to 82 inclusive. Section 16A (2) (2AAA) requires a court when determining the sentence to be passed, or order to be made, in respect of any person for a Commonwealth child sex offence (as is the case here), in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court: 1. (a) when making an order - to impose any conditions about rehabilitation or treatment options; 2. (b) in determining the length of any sentence or non-parole period - to include sufficient time for the person to undertake a rehabilitation program.
As previously observed in these reasons the author of the SAR tendered in the sentence proceedings, Anna Johansson noted of the offender that he is willing and able to undertake intervention. That intervention, in the event the offender was to be supervised by community corrections, will include the offender being referred to a Community Services forensic psychologist for further sex offender assessments, to obtain intervention and suitable case management strategies. It will also include referral to a psychologist for general mental health assessment and treatment and will utilise "practice guide to intervention" modules throughout the period of supervision with a focus on managing stress and anger, as well as self-awareness to explore healthy coping strategies and for the offender to gain insight into his own behaviours.
In submissions, the Crown asserted that the objective of rehabilitation does not displace the requirement that the sentence must be of a "severity appropriate in all the circumstances of the offence" pursuant to s 16A (1) of the Cth Crimes Act. That is, while the requirements of s 16A (2AAA) must be taken into account, the objective of rehabilitation should not "swamp" other very important sentencing considerations such as general and specific deterrence and adequate punishment, which the Crown submits play a central role in sentencing for offences of this kind. The principal purpose of rehabilitation, the Crown submits in this context, is to protect the community by ensuring that offenders are required to undertake treatment in custody, or upon release from custody to prevent reoffending.
In the 'Pre-Sentence Consultation 'report prepared by Corrective Services Senior Psychologist; Xiang Yan Hong annexed to the SAR, it was identified that the offender because of his "below average risk" range for risk of sexual reoffending, compared with other men who have offended sexually, is ineligible for Sex Offender Programs offered by Corrective Services NSW. Should the offender receive a custody-based order however, corrective services custodial case management unit will assess his eligibility and suitability for 'adjunct programs' relevant to managing his risk of reoffending.
I have considered the submissions of Mr Clifford-O'Sullivan for the Crown on this issue, and I've also noted the limited discussion of the provision by the CCA in the decision of Dark v The Queen [2022] NSWCCA 52. As previously observed, notwithstanding the offender's plea of not guilty and denial of the offence, having regard to the support he continues to receive from family and particularly his ex-partners, his extensive engagement with the community through voluntary work, as well as his history of full employment, his lack of any criminal offences or even traffic offences in his past, as well as his willingness to undertake supervision and intervention as may be directed in the future, in my opinion his risk of reoffending overall is relatively low. In that regard, I have considered risk assessments expressed in the sentencing assessment report dated 2 August 2023 and the 'presentence consultation' report of Xiang Yan Hong annexed thereto. 1. s16A(2)(p) The probable effect that any sentence or order under consideration would have on any of the person's family or dependents: 1. I have highlighted the current circumstances existing within the offender's family earlier in these reasons, and particularly at paragraphs 66, 67 and 69. He is the father of three boys Xavier aged 14, Lachlan aged 9 and Finnian aged 8. Each of the boys has been diagnosed with ADHD. Xavier is being assessed for 'autism spectrum disorder', and both Lachlan and Finnian have been diagnosed with level 2/3 autism spectrum disorder. Lachlan also has an additional diagnosis of anxiety. The offender has the care of Xavier 50% of the time and the full-time care of Lachlan and Finnian with his ex-partner Maryanne Shipp, who continues to reside with the offender at their home in Lawson. All the boys are managed with various medications, treatment by psychologists, occupational therapists, and speech therapists. The unchallenged evidence before the court on sentence is that the offender has been integral in the daily care and welfare of the three boys throughout their lives.
Ms Hutchinson referred to this on behalf of the offender in her submissions. In those submissions Ms Hutchinson did not assert that the probable effect of a custodial penalty on the offender's children would be relevantly "exceptional", as required by the common law. The authority of R v Togias (2001) 127 A Crim R 23 was referred to where it was held that the requirement under s 16A(2)(p) to take into account the "probable effect" upon an offender's family or dependents of any sentence under consideration does not represent a change from the common law, namely that the probable effect must be "exceptional".
However, in Totaan v R [2022] NSWCCA 75, the applicant appealed against her sentence of a term of imprisonment which was imposed in respect of revenue fraud offences, on the grounds that the hardship to which a sentence of imprisonment would subject her mother and children was not taken into account by the sentencing judge but should have been in accord with s 16A(2)(p). That ground was upheld, and the applicant's sentence was set aside accordingly. A bench of five judges found that s 16A(2)(p) should be applied according to its terms. Decisions from the CCA or other intermediate appellate courts which found that "a court imposing a sentence for a federal offence may only have regard to hardship to a family member or a dependent where the circumstances of hardship satisfy the epithet "exceptional", are "plainly wrong" and should not be followed". The courts reasons for this were explained at [77] and ff where it was said: There was no textual support for the requirement that any exceptional hardship be shown in order for the hardship to be taken into account. Although judges may naturally be reluctant to "let go" of common law principles where they are replaced or overlaid by statute, "… It would be most if the legislature, in enacting s 16A(2)(p) in the plain language in which that provision appears, intended that it be read and understood, by reason of a pre-existing common law position, in a way that was different from and more limited than that suggested by the words in fact used…" A requirement to show exceptional circumstances not only is not supported by the text, but in fact "runs contrary to the language of the subsection, which provides that the probable effect of the sentence and family members and dependents 'must' be taken into account."
Unlike the common law position as expressed in Togias I am entitled to have regard to the probable effect a sentence or order under consideration would have on the offender's family, particularly care arrangements and meeting those care arrangements for his three "special needs" sons, which would fall primarily upon their mothers, and having regard to the content of the evidentiary material tendered on behalf of the offender in the sentence proceedings, I am of the view would impact unduly upon each of the boys. This is a factor I am satisfied I am entitled to have proper regard to in the process of instinctive synthesis in which I am required to engage.

The need for consistency

The Crown provided me with a number of cases that they submitted would inform the sentence to be imposed here. I have considered those cases in light of the need for courts to seek to achieve consistency when sentencing for Commonwealth offences and the need to have regard to sentencing practices throughout Australia: R v Pham (2015) 256 CLR 550 at [18]. The consistency that is sought to be achieved is in the application of relevant legal principles rather than the numerical equivalence of sentences and I have sought to give effect to that in this matter.

The Sentence

Section 16A (1) Crimes Act (Cth) requires that a sentencing court must, when determining the sentence to be passed, or order to be made in respect of any person for a federal offence, impose a sentence, or make an order that is of a severity appropriate in all the circumstances of the offence. Of course, s 17A (1) precludes a sentencing court from passing a sentence of imprisonment on any person for a federal offence, unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
The circumstances of the present case being an offence contrary to s 474.27 Criminal Code Act 1995 (Cth), the Crown submitted render it unquestionably serious. I accept this submission, and regard need only be had to the maximum penalty as prescribed by the Parliament of 15 years imprisonment to see how seriously the community views such conduct. There is a significant public interest in protecting children from conduct that inappropriately sexualises them at an age where they are ill-equipped to protect themselves or respond either appropriately or in their own interests (R v Nahlous [2013] NSWCCA 90 at [71]). The public mischief, which the statutory amendments that introduced the offences and made such conduct criminal, is a serious and substantial one (Nahlous at [72]).
The Crown submitted that conduct involving the Internet as a means of accessing children and beginning the grooming stage for subsequent sexual offending is extremely serious, having regard to the general vulnerability of children and the long-term serious consequences which inevitably flow from sexual offending against them. It is therefore fundamentally important to deter potential offenders. This offender's conduct it was submitted because he was communicating with an assumed online identity (undercover police officers), and not a real child. In cases involving sexual offending against children, the seriousness of the offence will often outweigh the personal circumstances of an offender, even in the case of a first offender. Ultimately the Crown submitted having regard to the objective seriousness of the offence, together with the fundamental need for general and specific deterrence, the presumption of imprisonment, and the maximum penalty available, the only appropriate sentence is a sentence of imprisonment involving full-time custody.
In submissions the Crown noted that where a sentence imposed for a federal offence is more than 3 years imprisonment, the court must fix a non-parole period unless reasons are provided as to why it has declined to do so (s 19AB Crimes Act 1914). In this case however, the Crown did not urge the imposition of a sentence of greater than 3 years. Implicit if not explicit in the submissions of Mr Clifford-O'Sullivan for the Crown was that having regard to all the circumstances of the case, both objective and subjective, as well as a proper consideration of the relevant s 16A factors coupled with the presumption of imprisonment (s 20(b)(ii) Crimes Act 1914), the court in imposing a Recognisance Release Order would require the offender to serve a period of this order in full-time custody before ordering the release of the offender in accordance with s 20 (1)(b)(ii) of the Act.
Ms Hutchinson on behalf of the offender submitted that a non-custodial sentence in accord with s 19AC (1) Crimes Act 1914 (Cth) is appropriate having regard to all the circumstances of the offence. She submitted that owing to the offender's low moral culpability, and the lesser objective seriousness of the offence coupled with the offender being supervised more suitably in the community is in the public interest and would be more effective at reducing any chance of reoffending, than the imposition of a short prison sentence. Ms Hutchinson submitted that the offender's offence would be most appropriately disposed of by way of a recognizance release order pursuant to s 20(1)(b), with release forthwith.

Determination

Having considered the written and oral submissions of both the Crown and Ms Hutchinson for the offender, it is apparent and uncontroversial that the thrust both counsel's arguments as to the appropriate sentence in the circumstances of this case, was directed to whether having come to the conclusion that a sentence of imprisonment of less than 3 years is appropriate; the court is satisfied "exceptional circumstances" exist within the meaning of s 20(1)(b)(ii) Crimes Act 1914 (Cth) and immediately release the offender on a Recognizance Release Order (RRO).
Section 19AC (1) Crimes Act (Cth) relevantly requires that in the event an offender is sentenced to a term of imprisonment of 3 years or less the court must impose a RRO and must not fix a non-parole period.
As previously observed the Crown submitted that the only appropriate sentence here is one involving a period of full-time custody. Pursuant to s 3(1) of the Crimes Act (Cth), the index offence is a "Commonwealth child sex offence". Accordingly, s 20(1)(b)(ii) of the Crimes Act applies. The Crown submitted that s 20(1)(b) provides: "Where a person is convicted of a federal offence or Federal offences, the court before which he is convicted may, if it thinks fit, sentence the person to imprisonment in respect of the offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a)".
However, the Crown submitted that if a court determines to sentence a Commonwealth child sex offender to imprisonment but release them on a RRO, there is a presumption that they will serve some period of actual imprisonment, unless there are "exceptional circumstances" that justify the offender being released immediately on a RRO, in accord with the requirements contained in s 20(1)(b)(ii).
1. Section 20(1)(b)(iii) goes on to state: "If at least one of the offences is a Commonwealth child sex offences and the court is satisfied there are exceptional circumstances-immediately."

Exceptional circumstances

What constitutes 'exceptional circumstances' for the purposes of s 20(1)(b)(ii) is not defined. The Crown referred me to case law which provides some assistance in terms of considering what may amount to exceptional circumstances. In the case of R v Tootell ex parte AG [2012] QCA 273 at [18], the court stated: "We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."
The Crown also referred to the decision in R v GAW [2015] QCA 166, where the court quoted R v Quick; ex parte AG (Qld) [2006] QCA 477: "What emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case… The court, in the sentencing process, must consider whether there are exceptional circumstances which, in the light of all the other aspects of the case including those described in s 9(6), warrant the imposition of a sentence which does not involve actual custody. The mitigating circumstances must be considered against a background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances of that kind."
I have also had opportunity to consider the decision of Judge Berman in R v Pederson [2021] NSWDC 535. That decision involved a Commonwealth child sex offence of using a carriage service to groom a child under 16 for sexual activity, as is the case here. In Pederson there was a plea of guilty and an offence on a s 16BA schedule under the Crimes Act (Cth), which was an offence of using a carriage service to transmit an indecent communication to another person under the age of 16. I note in Pederson his Honour found that this offence was engaged in for sexual gratification. His Honour found exceptional circumstances when sentencing the offender in that case. He considered that a combination of factors led to his finding of exceptional circumstances. Those factors appear to be that the offender was 61 years of age and a man of good character, he pleaded guilty at the earliest opportunity, he was remorseful, and had good prospects of rehabilitation. His Honour also considered the consequences that would befall the offender's family if he was incarcerated, the impact of the Covid 19 pandemic upon offenders sentenced to full-time custody, what his Honour considered were the unusual circumstances of the offence, and that the offender had not sought to misrepresent who he was to the child and there was no repeated/repetitious contact between the offender and the person's to whom he was communicating. Relevantly, for the purposes of my consideration is that the offender in Pederson initiated at least one of the conversations giving rise to the offences on a 'teen chat room', whereas in the present case the initial communication initiated by the offender occurred on ChatIW which the evidence disclosed was an over 18 chat site for adults, to engage in sexually suggestive and provocative conversation and role play.
I have also reviewed the decision of Judge Abadee in R v Dregmans [2022] NSWDC 55 where his Honour found 'exceptional circumstances' when sentencing the offender for a single offence of possess or control child abuse material contrary to s 474.22A Cth Criminal Code. From a reading of Dregmans it appears that the Crown did not assert against a finding of "exceptional circumstances". Be that as it may His Honour noted that the offending is at the low end of the scale of seriousness, the offender was a person of good character with good prospects of rehabilitation and was a low risk of reoffending and had suffered extra curial punishment through media coverage of the proceedings. Those features in combination with sufficient to satisfy his honour that exceptional circumstances were established.
In both Pederson and Dregmans the offender pleaded guilty. The maximum penalty in each case was 15 years imprisonment. As noted, Pederson involved a second offence on the s 16BA schedule. The offending in Pederson was of a similar objective seriousness, if not at times including more explicit sexual language.
In R v Jones [2022] SASCA 105 at [45] the court stated: "Some uncommon features may militate against a finding of exceptional circumstances rather than support it. It is not a matter of a sentencing Court sifting through the personal circumstances of an offender to find something that perhaps can be described as uncommon to support a finding of exceptional circumstances. That is not to say that the personal circumstances of an offender can never tip the scales in favour that exceptional circumstances exist. It depends. But the purpose of the section and the general sentencing considerations including general deterrence, personal deterrence and protection of the community always loom large. A finding of exceptional circumstances must be based on an assessment of all of the usual sentencing criteria".
In my opinion, the word "exceptional", in the statutory context means out of the ordinary course or unusual or special, or uncommon Circumstances do not have to be unique, unprecedented, or very rare, but cannot be circumstances that are regularly or routinely or normally encountered to meet the requirement of the provision. A combination of factors, in my opinion, can amount to exceptional circumstances.
Here, I am satisfied, the combination of the following factors amounts to exceptional circumstances within the meaning of the provision, accepting that no single factor of itself may be exceptional. The relatively low level of objective seriousness of the offence, the offenders lesser moral culpability as evidenced by his withdrawing from the conversation and any anticipated meeting by 13 December 2021, his cooperation with NSW police at the time of his arrest (past assistance), by providing passcodes and access to all electronic devices, as well as full access to his home and identifying various devices, as well as confining the issues at the trial to the elements of his belief and intention, his lack of any prior criminal offences, traffic infringement's or any antisocial history, his historical involvement in the RFS assisting the community, the substantial impact any custodial sentence would have upon his family, particularly his three "special needs" children, his age and good future prospects and his being assessed in the "below average risk" range for risk of sexual reoffending which render the offender ineligible for sex offender programs offered by corrective services NSW (pre-sentence consultation report of Xiang Yan Hong) in the event a sentence of incarceration was imposed, and the offender has spent effectively two days in custody as a result of his arrest arising from his breach of bail in respect to the offence whilst awaiting trial.

Conclusion and orders

Daniel Bredal you are convicted of the offence for 'that you between about 26 November 2021 and 14 December 2021 at Lawson and elsewhere in NSW, being 45 years of age, did use a carriage service to transmit communications to another person, the recipient, being someone you believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with you.' That offence being contrary to s 474.27(1) Criminal Code Act 1995 (Cth).
Upon conviction: 1. I impose a sentence of 1 year and 7 months imprisonment to commence this date being 17 November 2023. In imposing the sentence, I have included the discount that arises from your assistance to the NSW police as noted earlier in these reasons at the time of your arrest and your cooperation with police at that time, and the subsequent confinement of issues at your trial as previously identified. I have quantified such discount at 5% on what would otherwise be an appropriate sentence. 2. The offender is to be released immediately upon entering into a recognizance pursuant to s20 (1)(b) Crimes Act 1914 (Cth) in the amount of $2,000 without security, to comply with the following conditions: 1. That the offender be of good behaviour for a period of 3 years; 2. That the offender is to be supervised by a Probation Officer appointed in accordance with the order and obey all reasonable directions of the Probation Officer or delegate; 3. The offender is not to travel interstate or overseas without the written permission of the Probation Officer: and 4. The offender is to undertake such treatment or rehabilitation programs that the Probation Officer reasonably directs. 5. The offender is to report to the Penrith office of Community Corrections within 7 days.

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: 16 December 2024

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