R v Contreras [2025] ACTSC 161

1. Hector Ulises Contreras stands to be sentenced after pleading guilty to one count of using a carriage service to procure a person under 16 years for sexual activity contrary to s 474.26(1) of the Criminal Code (Cth). The maximum penalty for the offence is 15 years imprisonment. A pecuniary penalty is available as an alternative but would not be appropriate in the present case.

2. The offender entered a plea of guilty on 3 May 2024, being the date on which the matter was listed for a pre-trial application. The matter had not yet been listed for trial or criminal case conference at that stage. While not as early as a plea in the Magistrates Court, the timing of the plea is such that it has significant utilitarian value: s 16A(2)(g) of the Crimes Act. The offender also co-operated with law enforcement authorities at the time of his arrest in providing passwords to his electronic devices and making relevant admissions: s 16A(2)(h) of the Crimes Act 1914 (Cth). In accordance with established principle, it is appropriate to allow a discount in the order of 20 per cent.

3. The offender has no relevant prior convictions. Section 17A of the Crimes Act prohibits the Court from passing a sentence of imprisonment unless, having considered all other available alternatives, the Court is satisfied that no other sentence is appropriate in all the circumstances of the case. The Crown submits that immediate imprisonment is the only appropriate sentence. The offender concedes that the s 17A threshold is crossed but contends that the Court could appropriately order that the sentence be served by intensive correction order, as allowed under s 20AB of the Crimes Act. That is the principal question to be determined in the present sentencing exercise.

4. The sentencing task is governed by Pt 1B of the Crimes Act. Section 16A(1) in that Part provides that the Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. That is no more than a statutory reflection of the common law principle of proportionality.

5. Section 16A(2) of the Act specifies a non-exhaustive list of considerations the Court must take into account in determining the appropriate sentence. The first consideration is the nature and circumstances of the offence: s 16A(2)(a). The circumstances of the present offence are set out in an agreed statement of facts which may be summarised as follows. Between 3 May 2022 and 20 July 2022, the offender communicated with a police officer posing as a 14-year-old girl under the assumed name, “Paris”. The communications took place by telephone and via the social networking sites, ChatIW and Skype. ChatIW is a social networking site that offers free and anonymous chat with other people on the platform. Skype is an application that allows people to communicate in private, online communications and includes webcam functionalities. Neither is specifically for communication with children or for access to child abuse material.

6. The statement of facts sets out the offender’s exchanges with the police officer in extensive detail. I do not think it is necessary to set out that detail in this sentencing decision. The offender accepted that the offending involved a course of conduct continuing over about 10 weeks and involving numerous interactions. He accepts that the offending over that period is a serious example of the type of offences to which this provision applies. The purported or believed age of the assumed identity “Paris” is relevant, being 14 years in circumstances where the offence provision captures any age under 16 years. It is, of course, however, not towards the younger end of that range.

7. The communications began on 3 May 2022 when the offender started a conversation with Paris through a private chat on ChatIW. The conversation was sexually explicit and involved the offender instructing the agent how to masturbate notwithstanding her indicating, “im only 14”. The offender then shared his Skype username with her and she subsequently sent him a friend request. Further conversation occurred, including an exchange on Skype in which the offender said to Paris, “You look 18”.

8. The conversation continued on 4 May 2022 with a Skype instant messenger conversation of over an hour and 20 minutes. That conversation was again sexually explicit, involving reference to masturbation and the offender saying that he was happy to answer sex questions. There was a further conversation on 9 May 2022 and that conversation included explicit references to masturbation and conversation as to whether Paris’s mother was in the room.

9. Further conversations occurred on 10 May, 17 May and 9 June 2022. During the conversation on 9 June, the offender raised the topic of what he and Paris would do together if they met up. That idea developed over the following days in June. On 1 July 2022, the offender engaged in a telephone call with Paris which lasted for approximately 20 minutes. During that conversation, the offender said he would call Paris so that she did not use her credit for her phone call and so that her mother would not ask who she had been talking to. The offender indicated that he would be in Sydney on 26 July to catch a flight to Darwin and expressed an interest in meeting Paris on his way through Sydney.

10. The offender had an exchange with Paris in which she assured him that she deleted material on her phone. He endorsed that. A further conversation over Skype instant messenger took place on 5 July 2022 which lasted for one hour and 13 minutes. During that conversation, Paris told the offender that she had not told anyone about him. He responded, “Cool :) I'm your secret and you are mine”. There was further conversation of a sexually explicit nature on that date.

11. On 7 July 2022, in a conversation over Skype instant messenger, the idea of their meeting up in Sydney was developed. The offender suggested that they could watch television and made a joke that they may not get to see much of whatever they were watching and that they may be “kissing and stuff instead”.

12. On 11 July 2022, there was a further conversation in which the details of the proposed meeting up were discussed. The offender told Paris he was still available to meet on 26 July 2022 and had taken the day off work so that they could spend more time together. He told her that he would leave Canberra at about 9:00am and arrive in an area of Sydney at about midday. There was further sexually explicit suggestion in that conversation. Further conversations took place on 17 July and 20 July 2022.

13. On 22 July 2022, police executed a search warrant at the offender’s home and seized several electronic devices. During the execution of the search warrant, the offender voluntarily provided passwords and access to his devices to police after being told that an order could be obtained compelling him to do so. When questioned by police, he denied that there was any child abuse material on his devices but acknowledged that there were conversations relating to a child. When he was asked to tell police about that, he admitted that he had been talking to a child who was keen to meet up in Sydney. He said: To possibly have something to occur but never happened because I hadn’t gone to Sydney yet and uhm. That’s the conversation around that.

14. He told police that, in meeting up with the child, they might watch a movie. He said, “she trusted me and I said oh, all right then maybe something else could happen” and acknowledged that there were conversations around that. He acknowledged that he had talked with the putative child about her sexual experiences and that she was interested and keen to know more.

15. The offender was arrested and conveyed to the City Police Station where he participated in a record of interview during which he was shown transcripts and screen captures of his conversations with Paris. During that interview, the offender made a number of frank admissions including saying: … we were just talking, uh, about meeting up and, and, um, I mentioned it at home, um that we were going to watch movies, um, and she wanted to try things and I was happy to oblige. Um, but at the same time, I wasn't sure if it was real. Like. ‘Cause the majority of the people that talk to you are, are just, um, nothing ever happens. So, um, I had the conversation and if things worked out, it would’ve happened on Tuesday.

16. It is necessary to determine a factual question in light of those comments made to police and also to a psychologist as to whether the offender believed from the outset and throughout the whole period on the indictment that he was communicating with a 14-year-old girl. The offender acknowledged that Paris said she was 14 years old on many occasions. However, he also said to police, “people fake it all the time”, including older women pretending they are younger. The offender also told Dr Olav Nielssen, a psychiatrist who prepared a report concerning the offender, that he thought all of the communications were fantasy. The offender noted that he was on an 18-plus website where everybody lies and there are women who pretend to be younger than their age.

17. In order to be satisfied that the offender held the belief for the whole of the period on the indictment that Paris was 14 and that he intended to engage in sexual activity with her, I would have to be satisfied of that fact beyond reasonable doubt, as it would be an aggravating factor. I do not think I can be satisfied in those terms. I accept that it was the offender’s belief at the outset of the communications that he was engaging in a fantasy-style exchange. However, I am satisfied, consistently with his plea of guilty to the offence, that at some stage he formed the view that he was exchanging messages with a 14-year-old girl and that it was his intention to procure her for sexual activity.

18. The offender acknowledged that he had intended to meet up with Paris on 26 July 2022 while travelling to Darwin, intending to take the day off work and drive to Sydney on Tuesday then catch a flight to Darwin on the Wednesday morning. He acknowledged that they talked about sexual matters and that there was the intention of “something happening” including kissing, fondling and potentially having sex. He said, “I was just asking if she was, um, trying to unlock her sexuality I suppose”. When asked about what that meant he said, “she’s never done it before so I just wanted to educate her I suppose on how to do it”.

19. It is necessary to make an assessment of the objective seriousness of the offence in that context. The Crown submitted that the fact that the recipient of the communications was an undercover police officer does not lessen the seriousness of the offending. As authority for that proposition, the Crown cited the decision of the Victorian Court of Appeal in R v Gajjar [2008] VSCA 268; 192 A Crim R 76. In fact, in the passage cited, the Victorian Court of Appeal was, in turn, referring to a decision of the Western Australian Court of Appeal in Western Australia v Collier [2007] WASCA 250; 178 A Crim R 310. The principles stated in Collier were summarised in Gajjar as follows: The principles drawn from these cases were more important than the individual outcomes themselves. They showed that the legislature viewed conduct of this kind as deplorable. The legislation creating this offence had been introduced as a measure against “an increasing trend” of paedophiles using the internet as a means of accessing children, and thereby grooming them for subsequent sexual offending. An offender’s conduct was to be regarded as no less morally reprehensible merely because the person to whom the communication was made was, unbeknown to him, an undercover police officer.

20. I do not understand those remarks to stand as authority for the proposition that the fact that the offender was communicating with an undercover police officer does not reduce the objective seriousness of the offence. At common law and under Pt 1B of the Crimes Act, the law has regard to consequences. So much is clear from the terms of s 16A(2)(d) of the Crimes Act, which requires the court to have regard to the personal circumstances of any victim of the offence. In the present case, there is no victim. Accordingly, while the conduct of an offender who is, unbeknownst to them, dealing with an undercover officer will be no less morally reprehensible, it will ordinarily be of lesser objective seriousness. So much is recognised in a separate decision relied upon by the Crown, the decision of the New South Wales Court of Criminal Appeal in R v Asplund [2010] NSWCCA 316; 216 A Crim R 48 where that Court recognised that a relevant consideration in assessing the objective seriousness of an offence is whether the victim was real.

21. The Crown otherwise relied on the following considerations relevant to the objective seriousness of the offence. First, the period of the offending, which was some two and a half months. The Crown noted that there was regular and persistent communication and grooming during that period involving, at times, lengthy conversations. The Crown submitted that the offender could have ceased the communication at any point but instead sought to progress the relationship to a point where he had plans to travel to meet “Paris” for sexual activity. I accept that the period of offending is a significant factor, and the persistence as well. However, as I will explain, one of the aspects the offender recounted to his treating practitioners after his arrest was that he developed something in the nature of an addiction to his phone during this period. The extent to which he had a capacity to cease the communications was reduced in the manner described by Dr Bollinger, whose report I will discuss.

22. Secondly, the Crown relied on the fact that the engagement with the undercover police officer immediately descended into a highly sexualised interaction notwithstanding the fact that the officer repeatedly said she was only 14. Certainly, it may be accepted that the exchanges are highly sexualised and that is a relevant consideration. Conversely, as I have explained, I proceed on the basis that, in the first instance at least, the offender may well have believed that he was engaging in a fantasy conversation with an older woman. The Crown relied on the fact that the offender was a mature adult, being aged 47 years at the time of the offending while the undercover officer was posing as a 14-year-old child. That is an obvious and significant age disparity which contributes to the objective seriousness of the offence. The Crown acknowledged that the offending was relatively unsophisticated, and that the offender did not attempt to conceal his identity.

23. Finally, the Crown relied on the fact that the offender knew he should not be engaging in such a way with a person he believed to be under the age of 16 in light of his regular references in the exchanges with Paris to confirming that her mother could not see her “chatting away to a naughty man”.

24. Conversely, factors that point to the offence being one of lesser seriousness are first, the fact that there was no real victim. Secondly, the fact that there was at least some causal impact of the offender’s mental condition at the time, to which I will return. And thirdly, my assessment that, accepting that all such communications are corrupting, the language of the exchanges in the present case was not of the degrading, callous and manipulative kind sometimes seen in matters of this nature. My conclusion is that the offence is not at the lowest level of seriousness, but it is by no means the most serious example of an offence of this kind. I would assess the objective seriousness of the offence to be relatively low.

25. Section 16A(2)(f) of the Crimes Act requires the court to take into account the degree to which the person has shown contrition for the offence. Apart from his early plea, the offender points to the fact that he has told his wife, close family and friends about the offending and sought treatment from a treating psychologist and from Dr Bollinger. He tells Dr Bollinger that he has learnt through his conduct. I will return to the detail of her report. I am satisfied that the offender’s arrest and his engagement with personal and professional supports since that time have had a salutary effect on him and brought him to a state of genuine contrition and remorse. I will explain the reasons for that conclusion in my discussion of his subjective circumstances.

26. Section 16A(2)(j) and (ja) require the Court to consider the deterrent effect the sentence may have on the offender (specific deterrence) and on any other persons (general deterrence). General deterrence is probably the most significant factor in favour of an immediate term of imprisonment in the present case. I accept that it should be a significant sentencing consideration. As submitted by the Crown, there is a paramount public interest in promoting the protection of children, given the vulnerability of children online and the need to protect them from sexual abuse by predators using electronic devices. The Crown submitted that specific deterrence should also be a significant consideration in the present case. It was submitted that the offender’s attempts to explain and justify his behaviour were concerning and indicate a need to deter him. I will return to that issue in my discussion of the offender’s subjective circumstances.

27. Section 16A(2)(k) of the Crimes Act requires the court to take into account the need to ensure that the person is adequately punished for the offence. The Crown submitted that a sentence of immediate imprisonment will ordinarily be required for such offences unless exceptional circumstances exist, citing the decision in Gajjar as well as the decisions in R v De Leeuw [2015] NSWCCA 183 and Kenworthy v The Queen (No 2) [2016] WASCA 207. General or normative sentencing principles of that kind must be approached with caution. Even in New South Wales, where guideline judgments had a statutory foundation, it has been recognised that an appellate court should take particular care when expressing a guideline judgment to ensure that it does not, as a matter of practical effect, impermissibly confine the exercise of discretion: R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 at [113] per Spigelman CJ. The imposition of a judicial gloss on sentencing legislation purporting to require the establishment of exceptional circumstances where no such requirement is imposed by statute has repeatedly been disapproved by the High Court.

28. The offender relied in this context on my remarks, then as a judge of appeal in New South Wales, in Sabbah v The Queen [2020] NSWCCA 89; 283 A Crim R 78 where I said that judicial statements “to the effect that particular classes of offenders should or must ordinarily ‘go to gaol’ cannot be treated as statements of binding principle”.

29. That said, it may be accepted that the offence of using a carriage service to procure a person under 16 years for sexual activity is inherently serious and, indeed, abhorrent. My point is that the question whether this offender should be sentenced to a term of immediate imprisonment for that offence is more nuanced and, of necessity, individualised than suggested by positing a normative principle that such offenders ordinarily deserve immediate imprisonment.

30. Section 16A(2)(m) of the Crimes Act requires the court to take into account the character, antecedents, age, means and physical or mental condition of the person. The requirements of that section were addressed in a number of reports provided to the Court by the offender. There is also before the Court an intensive correction order assessment report as well as a psychological assessment report by Dr Jenna Bollinger and a psychiatric report by Dr Olav Nielssen. Character references were also provided from the offender's cousin, Pablo Contreras, his wife, Thilini Contreras, and a good friend, Robert Page.

31. Section 20AB of the Crimes Act permits the court to sentence the offender to sentencing options available under Territory sentencing law. It follows that an intensive correction order is an available penalty for this offence. Section 21B(2) of the Act, which requires a Commonwealth child sex offender who is conditionally released to serve at least some portion of the sentence of imprisonment unless the Court is satisfied that there are exceptional circumstances, does not apply to a sentence to be served by way of intensive correction order: Henderson v The King [2024] ACTCA 3; R v Bredal [2024] NSWCCA 75. However, in determining the appropriate sentence, including how it should be served, even in the case of an ACT sentencing alternative, the court must have regard to the object of rehabilitating the person, as required by section 16A(2AAA).

32. The intensive correction order assessment report indicates that the offender has been assessed as suitable for an intensive correction order. He has also been assessed as suitable to perform community service. The author of the assessment report records that the offender is the middle child of three and reported being born in Chile where he escaped as a political refugee with his family when he was approximately 10 months old. The family escaped to Peru before settling in Sydney, Australia. The offender is now an Australian citizen.

33. The offender described his childhood as difficult because neither of his parents spoke English when they immigrated to Australia, making it difficult for his father to secure employment and his parents to build supportive social relationships. The offender’s father abused alcohol and was often absent from the family home. When he was present, he was often abusive towards the offender and the offender’s mother and oldest brother. The offender advised that he felt love and support from his mother throughout his childhood but also felt that she was often psychologically indifferent. He now shares a positive and supportive relationship with both his parents and brothers. His relationship with his father has improved substantially over the past five years and they now communicate about their emotions. It is well understood that the experience of such abuse during childhood casts a long psychic shadow on some persons.

34. When the offender was a teenager, his cousin accused his father of sexually abusing her. Since their relationship has improved, the offender and his father have discussed this, with his father acknowledging that he was intoxicated most of the time and has many periods of blackout at the time of the alleged assault. The offender remembers examples of his father making inappropriate comments about women and displaying behaviour towards women that made him feel uncomfortable.

35. The offender completed education to the level of year 12 and completed a diploma of information technology at the Canberra Institute of Technology. He worked in the IT field from the time of completing his diploma to the time he was charged with the current offence. Due to the nature of the offence, he has lost his security clearance and believes he will be unable to obtain employment in the sector moving forward. Since that time, he has been working in the construction and labouring industries and was unemployed for a period of almost a year. Since June 2024, he has been employed through a labour hire company working on average two shifts a week. He plans to engage in further education and possibly open his own business once these proceedings have concluded.

36. The offender met his present partner in 2010. They began dating in 2015 and were married in 2016. The offender reported that their relationship had been mostly supportive but that they had struggled with communication and grief since losing a child who was stillborn in 2018. Following this, their relationship was focused on providing care for their two other children rather than for one another. The offender believes that, following his arrest for this offence, their relationship has become stronger; they communicate better and he is feeling more secure and happy.

37. The offender’s evidence on that issue was supported by evidence given at the proceedings on sentence by his wife. She was an impressive witness. It is clear from her evidence that she remains supportive of the offender, that they have had close and intimate conversations about the nature of his offending and that he continues to enjoy her support.

38. The offender is reported in the intensive correction order assessment report to agree with the statement of facts and did not dispute any of the information, agreeing that his decisions were poor. The author of the report expressed the view that his explanation of motivations for his offending did not make sense and that, despite his stating remorse for his behaviour, he appeared to minimise and justify the offences. On that issue, I prefer the evidence of the treating psychologist and psychiatrists whose reports are before me.

39. Section 16A(2)(n) of the Crimes Act requires me to have regard to the offender's prospects of rehabilitation. I am of the view that he has good to strong prospects of rehabilitation based on the support he enjoys from his wife, his acknowledgement of the offending and his engagement with health care services. There is also a positive assessment of his prospects of rehabilitation and his low likelihood of re-offending in the psychiatrist’s report. I accept, as submitted on behalf of the offender, that the impact of his arrest and the court process, including the public humiliation he has suffered, has already had a salutary effect on him. He has had to inform close friends and family of his conduct and has resigned from his work in the IT government sector where he previously held a security clearance. He is now able to work only in manual labour.

40. Section 16A(2AAA) of the Crimes Act provides that, in determining the sentence to be passed or the order to be made in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person. As submitted by the Crown, that provision does not displace the requirement to impose a sentence of severity appropriate in all the circumstances of the offence. However, it is significant that the author of the report assesses the offender as being suitable for an intensive corrections order.

41. Following the introduction of s 16A(2AAA), this Court must consider the integration of the obligation to have regard to the objective of rehabilitating the person with any options available for serving the sentence other than by way of immediate imprisonment. I note in that context the content of Dr Nielssen’s report. Dr Nielssen interviewed the offender primarily to ascertain whether, as Dr Bollinger suspected, he may have a diagnosis of bipolar disorder. He does not. The mental health assessment diagnosis made by Dr Nielssen was that he suffers primarily from depression and that is primarily as a result of his arrest and the impact of these proceedings. However, it is significant that Dr Nielssen believed that the offender: … would find the experience of imprisonment to be harsher than many other prisoners because of his age and background, the nature of his offence, the absence of experience of imprisonment and the separation from his family. Depressive illness would make the experience of imprisonment more distressing, and it would also have an adverse effect on the course of his illness.

42. Dr Nielssen also expressed the opinion that the prison environment presents a significant impediment to the recovery from depression for most people, with the exception being people who are depressed because of the effect of substance use. As I understand Dr Nielssen’s opinion, he is saying that the prospects of rehabilitation would be improved if this offender is not sentenced to a term of immediate imprisonment.

43. Separately, Dr Bollinger's report confirms, firstly, that significant intervention services would not necessarily be beneficial and may even increase the offender’s risk of offending. She wrote, “It is recommended that Mr Contreras return to see his psychologist to address the issues that led to the offence”.

44. Finally, s 16A(2)(p) of the Crimes Act requires the court to have regard to the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents. That is a very significant factor in the present case. The offender is 49 years old, is married and has two young children aged seven and four who were aged four and two during his offending. He has taken on a stronger caring role for his children since his loss of full-time employment whilst his wife is now working full-time. Her evidence established that, if the offender were to be incarcerated, that would cause significant difficulty to the family. His wife would need to cut back on work to attend to child-related duties which would affect the income available to the family. More importantly, she spoke eloquently of the important connection the offender has with the children and their dependence on him. It is well understood that separation by imprisonment between parent and child can have a lasting generational impact.

45. As I have explained, while a sentence of imprisonment is the only appropriate sentence, the principal question in this sentencing exercise is whether it is appropriate to order that the sentence be served by intensive correction order. The first step in determining that question is to determine the appropriate term of the sentence. Having regard to the objective seriousness of the offence and the authorities drawn to my attention by the parties, I consider that the appropriate starting point is a term of imprisonment for a period of three years. Allowing a discount of roughly 20 per cent gives a sentence of two years and five months.

46. Accordingly, it is necessary to consider the provisions of s 11(3) of the Crimes (Sentencing) Act 2005 (ACT). That section provides that, in the case of a sentence of imprisonment of more than two years but not more than four years, the court may make an intensive correction order only if the court considers it is appropriate to do so having regard to the level of harm to the victim and the community caused by the offence, whether the offender poses a risk to one or more people or the community and the offender’s culpability for the offence having regard to all the circumstances.

47. For the reasons I have explained at length, none of those factors militates against making an intensive correction order in the present case. The position might be different if a real victim was involved.

48. Section 11(4) of the Crimes (Sentencing) Act provides that an intensive correction order must include the core conditions mentioned in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT). An intensive correction order may also include additional conditions including a community service condition. That is an appropriate condition in the present case. As already noted, the offender consents to a condition requiring him to accept psychological assessment and treatment as recommended by Dr Bollinger. In my assessment, the purposes of sentencing, including the interests of rehabilitation, can best be met in that way, avoiding the debilitating effect of imprisonment described by Dr Nielssen and allowing the offender to maintain connection with the pro-social supports he finds in his family and friends and by continuing to engage in therapy.

Orders

49. Hector Contreras, please stand. For the offence of using a carriage service to procure a person under 16 years for sexual activity, you are convicted. I sentence you to a term of imprisonment for two years and five months. I order that the sentence be served by intensive correction order in the community. The intensive correction order is to include the core conditions mentioned in s 42 of the Crimes (Sentence Administration) Act and the following further conditions: 1. A community service condition requiring you to complete 200 hours of community service within two years. 2. A condition requiring you to undertake psychiatric or psychological assessment or treatment as recommended by Dr Bollinger or any other psychologist or psychiatrist of your choosing.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: