R v Gajjar [2008] VSCA 268

Court of Appeal (Vic)|2008-12-18|Before: MAXWELL P, NETTLE and WEINBERG JJA

Criminal Law - Sentence - Using carriage service to communicate with person under age of 16 with intention of procuring that person to engage in sexual activity contrary to s 474.26(1) of Criminal Code (Cth) - Respondent sentenced to two years and six months' imprisonment but required to serve only eight months of term - Whether judge gave insufficient weight to appellant's good character and lack of prior convictions - Whether judge erred in sentencing appellant on basis that offence was 'prevalent' or becoming 'increasingly prevalent' - Whether judge erred in placing too little weight on hardship that imprisonment would cause appellant and family - Whether sentence manifestly excessive - Appeal dismissed

2 The appellant is now aged 28 and married with one child. He was born in India and brought up and educated in that country. He attained tertiary qualifications in commerce and was subsequently employed as a data entry programmer. In 2005 he and his wife, an electronics technician, emigrated to Australia. He is not an Australian citizen, although he was planning to become one. He has no prior convictions. He and his wife have no family in this country.

3 From about August 2006, the appellant was employed on a part-time basis by Australian Hospitality Services as a room attendant and house man. He received a modest net weekly income.

4 In early August 2007, the appellant downloaded on to his home computer a program which enabled him to log on to an online 'chat site' and to enter into a 'chat room' called 'Family Sex'.

5 On 13 August 2007 he logged on to that chat room using the name 'Sulaypat'. He engaged in a chat session with someone who called herself 'Lisa' and claimed to be 14 years of age. Unbeknown to the appellant, he was in fact communicating with an undercover police officer.

6 Initially, the appellant sought to gain 'Lisa's' trust by claiming to be a 20-year-old female. They engaged in a lengthy discussion. The appellant asked her whether she had ever previously had sex. She replied that she had not but added that she liked boys. The appellant then owned up to the fact that he was male and said that he was looking for a 'nice girl'. He said that he was 20 years of age.

7 Although the appellant spoke to 'Lisa' about his desire to meet her for 'friendship', and to have 'breakfast' together, the sentencing judge found that it was apparent from the tenor of their conversation that his aim was to set up a sexual encounter.

8 Indeed, the appellant offered to pay for 'Lisa's' train ticket if she agreed to come to Flinders Street Station the following morning. He told her that she could count on leaving by 2.30 pm so that she could be home at the usual time after finishing school. He used explicit and salacious language in describing what he had in mind for her. He also indicated that, at a later time, he would present her with an iPod .

9 On the following morning, the appellant again communicated online with 'Lisa' to confirm their meeting at Flinders Street Station. To facilitate that arrangement, he provided her with his mobile telephone number.

10 At approximately 10:00 am, the appellant positioned himself at Flinders Street Station to observe the designated meeting point. He had several telephone conversations with 'Lisa', telling her that he was located near the toilets at the station. The last of these calls ended at approximately 10:05 am. 'Lisa' told him, at that stage, that she would see him in a minute. However, a number of calls that she made to his mobile telephone thereafter went unanswered. The appellant left the designated meeting area before the police could apprehend him.

11 That afternoon, the police attended at the appellant's home and seized his computer. They questioned him briefly at his house. He admitted to having engaged in chat sessions with 'Lisa' and also to having attended Flinders Street Station that morning in order to meet her.

12 The appellant was formally interviewed several days later and made a number of further admissions. However, the sentencing judge found that he had been less than frank in what he had told the police until confronted with their record of what had transpired. In particular, her Honour did not find plausible his claim that he had stopped taking 'Lisa's' calls on the morning of their intended meeting, and that he had left the station, because his sole aim in going there had been to see whether she really was 14.

13 The appellant's wife gave evidence on his behalf on the plea. She said that he was a shy man who did not get on easily with women. She said that she had been utterly deceived by him, having had no idea of his predatory behaviour .

14 The sentencing judge, in her reasons for sentence, rejected the contention advanced on behalf of the appellant that he had inadvertently come across the adult site that led to the chat room. Her Honour also expressed reservations about the claim that he posed no ongoing threat to children.

15 Her Honour was pressed with a submission that the appellant should not be sentenced to a term of immediate imprisonment. However, having had regard to various aggravating factors which she identified, she concluded that nothing less than an immediate custodial sentence was warranted.

16 The various aggravating factors to which her Honour referred included the significant age difference between the appellant and the 'girl' he believed to be 14. They also included his willingness to corrupt someone he believed to be sexually inexperienced, and the suggestion that the relationship would be an ongoing one by his offer to present her, at some later time, with an iPod. Finally, there was the fact that he attended at the designated meeting point, signifying to her Honour that he was not simply gratifying some theoretical urge.

17 Balancing these factors, the sentencing judge noted that the period over which this offence was committed was of only limited duration. She also referred to the appellant's lack of prior convictions and the positive evidence of good character that had been led. She noted that he had by and large co-operated with the police and that he had entered a relatively early plea of guilty. She said that the plea, which was indicative of remorse, entitled him to a substantial discount.

18 Importantly, for present purposes, her Honour then added:

However, the allowance I have made in this sentence for your lack of antecedents and your reportedly prior good character is not as great as it might otherwise have been because grooming offences fall into a class of offending where general deterrence takes precedence as a sentencing consideration, and I note the authorities of R v. Kennedy [2000] NSWCAA 527 and R v. Gent [2005] NSWCAA 370 in relation to that matter. Nevertheless, these factors act in your favour and have helped persuade me to partially suspend your sentence.

In your case, until your motivation for this offending is explored and better understood, I think specific deterrence is also an important sentencing consideration and this, too, has a bearing on any meaningful assessment of your prospects of rehabilitation.

The Crown calls for an immediate custodial sentence reflecting, as it should, a need to deter the increasingly prevalent offence of grooming which exploits the anonymity of the Internet and the opportunity this gives to predators to use online facilities to access children.

You concede that, based on existing decisions, this sort of offending usually attracts an immediate custodial sentence. However, you seek a wholly suspended sentence, your primary submission being that should you be incarcerated, the hardship suffered by your now dependent wife and baby, in all the circumstances, is exceptional and warrants the suspension of any sentence which, through its length and duration, could ensure, as it must, that you are adequately punished for this offence.

As I have already said, following this offence your wife became pregnant, and recently ceased her employment and gave birth to your son. At the further plea hearing, your wife was recalled and gave further evidence as to your joint financial circumstances, her health following the birth, and having attended Centrelink after the first plea hearing date to determine this, your wife's understanding of her current entitlement to benefits. [1]

I must say that, in circumstances where, should your offending warrant immediate incarceration, you seek to establish exceptional circumstances for your dependents through the loss of your financial support, I was concerned by your wife's evidence that she had not checked your two bank accounts for two months and that she was unsure of the amounts currently contained in these accounts.

Sub-section 16A(2)(p) of the Crimes Act requires that I take into account the probable effect this sentence would have on your family or dependents. This does not alter the common law position which requires that only "exceptional circumstances" be treated as mitigatory. In effect, the principle only operates where, for instance, the hardship suffered is sufficiently extreme to take it beyond that which invariably results from the incarceration of a breadwinner.

However, in your case, the factors relied on by you, such as your wife's health, the need for assistance with the baby and their dependence on your weekly income, individually and in combination, have not satisfied me to the required level that there are exceptional circumstances which militate against the imposition of an immediate custodial sentence.[2]

20 Her Honour next referred to a series of authorities to which her attention had been drawn. She recognised that there were factors in each of those cases which differentiated them from the present case. She noted, in particular, that whilst the absence of a real victim was a relevant consideration, it did not necessarily exclude imprisonment as a sentencing outcome. She referred to R v Burdon; ex parte Attorney-General (Qld),[3] a decision of the Queensland Court of Appeal, as authority for the proposition that those who used the internet to corrupt or exploit children were on notice that such behaviour was likely to result in a term of actual imprisonment.

21 Finally, her Honour referred specifically to the provisions of the Crimes Act 1914 (Cth) dealing with sentencing. She then sentenced the appellant as previously indicated.

22 The grounds of appeal upon which the appellant relies are as follows:

Ground 1: The learned judge erred in giving less weight to the appellant's previous good character and lack of prior convictions "because grooming offences fall into a class of offending where general deterrence take precedence".

Ground 2: The learned judge erred in sentencing on the basis that the offence in question is prevalent or "increasingly prevalent".

Ground 3: The learned judge erred in placing no weight on the particular hardship that immediate imprisonment would cause the appellant and his family.

Ground 4: The head sentence and the period of immediate custody are manifestly excessive.[4]

24 It was submitted that the sentencing judge erred in giving less weight to the appellant's previous good character and lack of prior convictions because:

grooming offences fall into a class of offending where general deterrence takes precedence as a sentencing consideration.

25 It was contended that there were three separate errors in this statement of principle. First, the authorities upon which her Honour relied did not support the stated conclusion. Second, there was no reason why good character and lack of prior convictions should be of less weight in offences of this nature than in offences of any other kind. Third, it was wrong to give less weight to such factors merely because general deterrence was to be regarded as a primary consideration.

26 In our view, there was no error in what the sentencing judge said. The appellant's prior good character was, of course, relevant to sentence. Section 16A(2)(m) of the Crimes Act makes that abundantly plain.

27 However, in cases of procuring for sexual purposes contrary to s 474.26(1), it is clearly appropriate, in our view, to give paramount consideration to the principle of general deterrence. It follows from that proposition that it must be open to a sentencing judge to give less weight to prior good character, in such cases, than it might otherwise bear.

28 That is not to say that less weight is to be accorded to good character in any absolute sense. It is rather to recognise that, when greater weight is attached in the balancing process to general deterrence, it necessarily follows, at least in a relative sense, that less weight will be accorded to what might otherwise be significant mitigating factors.

29 There is nothing remarkable about this proposition. It is well established that good character will ordinarily be of less weight in relation to certain classes of offences than it is in relation to others.

30 The appellant submitted that the sentencing judge erred in sentencing him on the footing that the offence in question was 'prevalent' or, alternatively, becoming 'increasingly prevalent'. It was submitted that there was no basis for either conclusion.

31 There are several answers to that submission. First, there is the Explanatory Memorandum to the Bill, which contained the new offence and which her Honour indicated that she had available to her. The first page of that document contains the following passage:

In line with the tough federal crimes sex tourism offences in the Crimes Act 1914, new offences will also target online 'grooming' activities by sexual predators. Unfortunately, adults are increasingly exploiting the anonymity of the Internet to forge relationships with children as a first step in luring them for sexual abuse. The Bill provides a responsible criminal law response to these abhorrent practices. [5]

32 In any event, it is undeniable that there have now been a number of cases, some of which have been reported, regarding this offence.[6]

33 Counsel, who appeared on behalf of the appellant below, took no issue with the prosecution's claim of prevalence. In effect, the sentencing judge was doing no more than repeating the Crown's submission when she referred to the 'increasing prevalence' of this offence. Had the appellant's counsel challenged the accuracy of that submission, material could have been assembled with a view to making good the assertion.

34 The sentencing judge can hardly be criticised for having acted upon a submission of this nature, unchallenged by the defence. This ground of appeal is without merit.

35 It was next contended that the sentencing judge erred in placing no weight on the particular hardship that immediate imprisonment would cause the appellant and his family. The appellant's wife had given birth to a son only 12 days prior to the plea. There had been complications associated with the birth. The evidence showed that he was devoted to the care of his wife and child, that they had no family support in Australia, and that they had only limited financial resources. As a result of the birth of their son, his wife is presently unable to work.

36 It was submitted that imprisonment at this juncture created significant practical hardship for the appellant's family and made imprisonment all the more onerous for him. It was further submitted that even if that degree of hardship did not meet the threshold required in order to amount to 'exceptional circumstances', nonetheless the sentencing judge had been under a duty to take these matters into account by showing 'mercy' to the appellant.[7]

37 In our view, her Honour did pay sufficient regard to the particular hardship that imprisonment would cause in this case. She referred specifically to the family income and to the appellant's wife's health. She also referred to s 16A(2)(p) of the Crimes Act which, in Commonwealth matters, makes hardship to a prisoner's family resulting from imprisonment relevant, though only if exceptional circumstances are shown.

38 When an offender is imprisoned, his or her family will often suffer hardship. Yet the law is clear on this subject. It is only in exceptional circumstances that such hardship operates in significant mitigation of penalty. It was clearly open to the sentencing judge to conclude that such hardship as was shown in this case was not, in any relevant sense, exceptional.

39 The appellant's alternative contention, namely that the sentencing discretion miscarried because the sentencing judge failed to accord mercy, is based on a misconception. The failure to accord mercy is not of itself a ground of appeal.[8]

40 It was submitted on behalf of the appellant that both the sentence of two years and six months' imprisonment, and the order that a period of eight months be served by way of immediate custody, were manifestly excessive. In particular, it was submitted that the sentence was longer than would ordinarily have been expected for a first offender who pleaded guilty to an offence of actually committing an indecent act with, or sexually penetrating, a 14-year-old child.

41 In addition, there were said to be a number of mitigating factors to which inadequate weight had been accorded. These included the fact that there had been no actual child victim in this case, a degree of alleged entrapment on the part of 'Lisa', the appellant's having withdrawn from the pre-arranged meeting and, importantly, his plea of guilty, remorse, and prior good character. There was also the fact that he had retained the support of his wife and friends and the hardship to his family brought about by his imprisonment.

42 In our view, the sentencing judge did not fail to give these factors appropriate weight. Using the internet to procure children for sexual purposes must be regarded as a most serious offence, carrying as it does a maximum penalty of 15 years' imprisonment. We do not accept the submission that a first offender of the appellant's age, who committed an indecent act or sexually penetrated a child below the age of 16, would have received a lesser sentence than that imposed upon the appellant. We would expect, in the case of sexual penetration, a much longer sentence than the two years and six months imposed in this case.

43 So far as we can tell, the sentence under challenge falls squarely within the range of sentences typically imposed for like offences under both Commonwealth and State law. Even if that were not so, that would not of itself be sufficient reason to impose a different sentence.[9]

44 It has been observed, correctly in our view, that the fact that there was no actual child victim in this case does not of itself exclude imprisonment as a sentencing outcome. The offence is designed to be preventive. It is likely to be detected only through the use of undercover police techniques.

45 We reject the submission that there was an element of entrapment in what occurred. This was not a case of an 'unwary innocent'. The appellant voluntarily logged on to this chat room and was more than forthcoming in the dialogue that ensued.

46 It is true that the planned meeting did not proceed. However, the offence was complete long before the appellant and 'Lisa' were due to meet.

47 Finally, it is clear that the sentencing judge took into account the appellant's admissions, his plea of guilty, and his obvious remorse. However, the additional claim that, but for those matters it would have been difficult for the Crown to prove the requisite intent for this offence, seems to us to be wholly without substance.

48 Her Honour took into account the support of the appellant's wife and friends. She also had regard to the hardship that imprisonment would bring, though only to the extent necessary.

49 In our view, it cannot be said that either the sentence imposed, or the portion of that sentence required to be served by way of immediate custody, falls outside the permissible range for this offence. The maximum penalty is, as we have said, 15 years' imprisonment. That is a matter properly to be taken into account.[10]

50 There were several aggravating features associated with this offence. These included the calculated and predatory conduct of the appellant, as indicated by his having actively sought out a child by using the particular designated chat room. The communications between the appellant and 'Lisa' were graphic and salacious. The appellant displayed a level of cunning by initially pretended to be a 20-year-old female and then a 20-year-old male.

51 In order to facilitate the meeting, he offered to pay for 'Lisa's' train ticket. He attended at the designated meeting area and spoke to her on the telephone on a number of occasions. He plainly had in mind more than a single contact, as evidenced by his promise to buy her an iPod at a later time.

52 Of course it cannot be said that this offence falls within anything like the worst category of its type. Nor, however, can it be described as anything but a serious example of conduct that is pernicious and difficult to detect. As such, it warrants severe punishment.

53 To the extent that the principles that govern sentencing for offences of this kind have been considered at an appellate level, there is a useful discussion to be found in a recent decision of the Western Australian Court of Appeal. In Western Australia v Collier,[11] the respondent had pleaded guilty to three charges of using electronic communication with intent to procure a child whom he believed to be under 13 to engage in sexual activity. The charge was laid under a State analogue to the Criminal Code provision under consideration in the present case. The maximum penalty on each count was 10 years' imprisonment.

54 As in the present case, the respondent in Collier engaged in online conversations with a police officer who was posing as a young girl, in that case, aged 12. As in the present case, he arranged to meet her and was then arrested. He was sentenced to two years' imprisonment on each count, to be served concurrently. The sentences were wholly suspended for two years.

55 On appeal by the Crown, Steytler P, with whom McClure and Miller JJA agreed, canvassed a number of cases in which the facts were not dissimilar to those in Collier. He referred to R v Kennings,[12]; R v Campbell,[13] R v Burdon; ex parte Attorney-General (Qld),[14] R v McGrath,[15] R v Hays[16] and R v Poynder.[17] In each of these cases, with the exception of Burdon, a term of immediate imprisonment had been imposed.

56 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.

57 Steytler P went on to say that, in recent years, there had been a 'firming up' of sentences in cases involving sexual offences against children as the courts had, over the years, gained a better understanding of the long-term effects of that kind of offending upon the children concerned. His Honour said that so far as sentencing practice was concerned, terms of immediate imprisonment were ordinarily, but not uniformly, imposed. The fact that the personal circumstances and antecedents of an offender were favourable did not mean that actual imprisonment was not required.

58 In Burdon, the one case in which a wholly suspended sentence was imposed and permitted by the appellate court to stand, the maximum penalty under the relevant provision of the Queensland Criminal Code was five years' imprisonment.

59 There, the offender, who had been active in the local community, pleaded guilty at an early stage and cooperated fully with the police. He attracted considerable notoriety on local television and the local press. He had undergone counselling and was regarded as being unlikely to re-offend. He was sentenced to 18 months' imprisonment, wholly suspended, and 240 hours of community service.

60 On a Crown appeal, the Court of Appeal regarded the sentence as lenient but was not disposed to interfere with it. The Court observed that the respondent had completed the community service required and had made extraordinary efforts at rehabilitation. It is important to note, however, that the Court stated forcefully that those minded to act as the offender had done would, from that point on, be on notice that such behaviour would be 'likely to result in a salutary penalty generally involving a term of actual imprisonment'.

61 In Collier, the Crown appeal succeeded. The respondent was ordered to serve an actual term of imprisonment. Steytler P explained:

It is important to say, as clearly as one can, that 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.[18]

62 It was submitted on behalf of the appellant that this Court should not follow the reasoning in Collier. In particular, it was submitted that there was no basis for saying that those who commit offences of this kind should 'ordinarily expect to receive a term of immediate imprisonment'.

63 We are not persuaded that Collier misstates the principles that govern sentencing for offences of this nature. The judgment is a recent, and carefully considered, intermediate appellate court decision in which those principles are fully canvassed. The reasoning is entitled to respect and should in our view be accepted.

64 There is nothing in the appellant's point that it is wrong to lay down, as a general principle, that ordinarily one can expect to receive a term of immediate imprisonment in cases of this type. Appellate courts often make statements of that kind in an effort to give guidance to sentencing judges. The respondent, in his supplementary submissions, drew attention to some such examples.[19]

65 We should say, for the sake of completeness, that the judgment of this Court in DPP v Hizhnikov,[20] which was heard on the same day as this matter, and is being delivered today, should not be understood as diminishing the force of our view that the present sentence was within the range. Hizhnikov was a Crown appeal to which special circumstances were applicable. The fact that that appeal was dismissed, and that the respondent in that case was permitted to avoid an immediate term of imprisonment on discretionary grounds, provides no basis for sentencing judges to adopt a similarly lenient approach.

66 It follows from the reasons set out above that the appeal should be dismissed.

[1] Reasons for Sentence, [33]-[37].

[2] Reasons for Sentence, [41]-[43].

[6] By 'this offence', we include its State analogues.

[7] R v Carmody (1998) 100 A Crim R 41, 45 and R v Nguyen [2006] VSCA 184, [30]-[34].

[8] R v NAD [2008] VSCA 192, [10]-]15] (Weinberg JA).

[9] R v Belhaj [2006] VSCA 153, [10].

[10] Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357, 372 [31].

[19] Fraud: Smallbone v Western Australia [2008] WASCA 167, [30]; R v Aller [2004] NSWCCA 378, [7]; Director of Public Prosecutions v Reynolds [1999] VSCA 224, [19]-[21]; and R v Purdon (Unreported, Supreme Court of New South Wales, Court of Criminal Appeal, Hunt CJ, McInerney J and Donovan AJ, 27 March 1997). Drugs: Western Australia v Saxild [2008] WASCA 156, [12]-[13] and R v Mangelsdorf, Perry & Richards [1995] SASC 5328; (1995) 66 SASR 60, 63. Aggravated Burglarly, Indecent Assault: Director of Public Prosecutions v BW [2007] VSCA 171, [5]. Arson: Director of Public Prosecutions (Vic) v Bright [2006] VSCA 147; (2006) 163 A Crim R 538, [15]. Armed Robbery: R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, [113]-[115]. Sexual Penetration of Child: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, 328-9. Driving Whilst Disqualified: Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150, 153, 159-163, 166-7, 171, 173, 198-200, 209.

Note also R v Milne [2001] VSCA 93, where Winneke P said at [12]-[13] that social security offenders of a certain order must ordinarily expect an immediate custodial sentence.

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