R v Hays [2006] QCA 20

SUPREME COURT OF QUEENSLAND

CITATION: R v Hays [2006] QCA 20

PARTIES: R v HAYS, Warwick Ray (applicant)

FILE NO/S: CA No 22 of 2006 / DC No 56 of 2006

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 10 February 2006

DELIVERED AT: Brisbane

HEARING DATE: 6 February 2006

JUDGES: de Jersey CJ, McPherson and Jerrard JJA / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Application for leave to appeal against sentence refused

CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – APPLICATION TO REDUCE SENTENCE – where applicant pleaded guilty to two counts of using the internet to procure a person whom he believed was under 16 years of age to engage in a sexual act and two counts of using the internet with the intent to expose a person he believed was under 16 to indecent matter – where the applicant was sentenced to 18 months imprisonment to be suspended after three months for an operational period of two years – whether sentence was manifestly excessive / Criminal Code 1899 (Qld), s 218A / Penalties and Sentences Act 1992 (Qld), s 9 / R v Burdon; ex parte Attorney-General [2005] QCA 147; (2005) 153 A Crim R 104, considered / R v Campbell [2004] QCA 342; CA No 287 of 2004, 20 September 2004, considered / R v Kennings [2004] QCA 162; CA No 35 of 2004, 14 May 2004, cited / R v McGrath [2005] QCA 463; CA No 239 of 2005, 9 December 2005, cited

COUNSEL: A J Glynn SC for the applicant / S G Bain for the respondent

SOLICITORS: Douglas Law for the applicant / Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: The applicant pleaded guilty to two charges under s 218A(1)(a) of the Criminal Code 1899 (Qld) of using the internet with intent to procure a person he believed was under 16 years of age to engage in a sexual act; and two charges under s 218A(2)(b) of using the internet with intent to expose a person he believed was under 16 to indecent matter. He was sentenced to 18 months imprisonment to be suspended after three months, for an operational period of two years. He seeks leave to appeal on the ground the sentence was manifestly excessive. He has been in custody since being sentenced.

On 23 April 2005, the applicant entered a chat room on the Internet and made contact with a police officer posing as a 13 year old girl. The applicant believed he was communicating with a 13 year old. He said he was 29. He engaged in sexually inquisitive and explicit discussion with her, including giving her detailed, lewd and graphic instructions on how to masturbate herself. She presented as sexually uninformed, sometimes nervous and reluctant. Then via a web camera, he displayed to her a moving, “real time” image of himself, masturbating – apparently over an appreciable period. The communication covered more than one hour.

The applicant engaged in similar conversation with the same supposed child on 31 July 2005, and again displayed a real time image of himself masturbating – again over an appreciable rather than fleeting period. This time he said he was 18. This communication covered about an hour. On that occasion he also asked the person with whom he was communicating to give him the names of any of her friends, then on-line, so he could talk to them too, and he later communicated similarly with one such “friend”, believing he was speaking to a 13 year old girl.

At the time of committing the offences the applicant was 29 years old. He had no prior criminal convictions. His Counsel informed the learned sentencing Judge that he was depressed at the time, having broken up with his girlfriend. He is now engaged to be married, and lives with his fiancée, who is standing by him notwithstanding this misconduct. The applicant is remorseful and extremely embarrassed, and the Judge accepted that such misconduct was unlikely to recur. (There was, however, it may be noted, no evidence the applicant had undergone counselling etc.) The applicant pleaded guilty upon an ex officio indictment. He had a good work history, and had been involved substantially in community activities.

The Judge is to be taken to have considered, however, that the considerations of denunciation and general deterrence, especially, warranted his ordering actual imprisonment.

His Honour referred in his sentencing remarks to the approach signalled by this Court in R v Burdon (2005) 153 A Crim R 104, 108-9, where it was said:

“…people who are considering using the internet like Burdon to attempt to make contact with young people with a view to corrupting or sexually exploiting them must now be on notice that such behaviour will be likely to result in a salutary penalty generally involving terms of actual imprisonment, even where indecent physical contact does not and could not eventuate.”

Mr Glynn SC, appearing for the applicant, first submitted, both in writing and orally, that the Judge erred when he observed:

“A serious feature of the second offence is that you attempted to involve another one of her so-called friends in this activity.”

The applicant was not charged with any offence in relation to the second supposed child. While evidence of what transpired in relation to that fictional character was put before the Judge, his sentencing remarks do not advert to that, stopping short at the above reference to the applicant’s attempt through the first child, while communicating indecently with her, to arrange contact with a friend or friends of hers. Evidence of this was included within the agreed statement of fact which was tendered.

That was of course part of what happened while the applicant was committing the second round of offences. It evidenced a willingness on the part of the applicant to exploit the supposed child to whom he believed he was speaking, to the extent of eliciting from her information which could lead to further association with another or others of similar age, suggesting also that his treatment of this child was other than spontaneous and impulsive (thereby going to any need for deterrence). He was not to be sentenced, of course, for any further offending, which was not charged. But in my view the Judge was entitled to have regard to this aspect of what the applicant said to the first supposed child in that it evidenced the extent of his intended sexual exploitation of that first child.

Mr Glynn referred to Dales (1995) 80 A Crim R 50, Wackerow (1996) 90 A Crim R 297, Robertson (1997) 91 A Crim R 388 and Sessions (1997) 95 A Crim R 151.

Dales confirms what is trite, that “a sentencing judge should take account of all the circumstances of the offence of which the person to be sentenced has been convicted…whether those circumstances increase or decrease the culpability of the offender” (p 87), which is all this Judge has done. See also Sessions (p 160). Robertson (p 397) and Wackerow (p 310) relevantly confirm what is again trite, that a person is not to be sentenced for other offences not charged: there is no basis for concluding or even suspecting that that occurred here.

In his second written submission, Mr Glynn criticized His Honour’s finding expressed as follows:

“There was, I’m satisfied, a significant degree of exploitation of what you agree to be a 13 year old child.”

Plainly the Judge was not proceeding on the basis there had been an actual victim. His statement immediately followed his reference to the applicant’s having sent real time images of himself masturbating. Mr Glynn emphasises that there was in fact no exploitation of a child, and refers to R v Kennings [2004] QCA 162; CA No 35 of 2004, 14 May 2004, where Mullins J mentions the relevance to penalty of the circumstance that no real child is involved. It is plainly relevant, but does not lead to a stipulation that if there is no real child, actual custody cannot be ordered. The situation is broadly comparable in this respect with the use of covert police officers in drug crime: the circumstance there is no actual victim, while relevant to penalty, does not of its own force exclude imprisonment.

There has for some years been substantial publicity about the extent of children’s use of Internet chat rooms, and the dangers involved. Yet adults continue to prey sexually upon vulnerable children in this way. No doubt very little of this would come to light, or be forestalled, but for the police targeting the activity via covert operatives. Accordingly, in a case like this, notwithstanding there being no actual victim, general deterrence assumes considerable significance in the sentencing process, extending where appropriate to ordering actual incarceration. I note in that regard that the principles set out in s 9(2)(a) Penalties and Sentences Act 1992 (Qld) (imprisonment a last resort etc) did not apply in this case (s 9(5); R v McGrath [2005] QCA 463 para [36]).

Mr Glynn’s third submission, made in writing and orally at the hearing, was that the applicant’s not having attempted to meet with the supposed 13 year old child (for the purposes of sexual exploitation) was of considerable significance, distinguishing the case from Burdon, Kennings, and R v Campbell [2004] QCA 342; CA No 287 of 2004, 20 September 2004, and warranting the full suspension of the term of imprisonment imposed. The submission came close to saying that it is only where a meeting is proposed that actual imprisonment may follow, which could not be accepted as an appropriate fetter on the sentencing discretion.

Campbell was sentenced to 18 months imprisonment suspended after three months, as was the present applicant. His conduct was broadly similar to this applicant’s, save that it emerged Campbell “was desirous of arranging a meeting with the young girl”. On the other hand, “on a number of occasions throughout the conversations (Campbell) acknowledged that the girl was not aged 16 and that in consequence they ought not engage in actual sexual intercourse”. Campbell was only 22, and Williams JA noted he “was not as insistent or aggressive in seeking to arrange a meeting as was Kennings”. His Honour considered that that was balanced, however, by the explicit nature of what Campbell said, and that Campbell sent two still photographs of himself handling his erect penis. In this case, the exposure was more graphic, to so-called “real time” moving images of the applicant masturbating. I consider, taking account also of this applicant’s being a somewhat older man, the case of Campbell provided support for His Honour’s ordering actual incarceration to the extent of three months.

Kennings was initially sentenced to two and a half years imprisonment suspended after nine months. By the time his appeal was heard, he had been in custody for approximately three months. The Court of Appeal reduced the term to 18 months imprisonment, and suspended it forthwith. Kennings had been “insistent and aggressive about pursuing a meeting”. The court confirmed that actual imprisonment was within range.

Burdon sent the supposed child still photographs of his erect penis and arranged to meet her in person. Burdon had been publicly shamed in his local community. McMurdo P said (p 108):

“There are some extremely serious aspects to Burdon’s offending. The widespread use of the internet in Australia, especially amongst young people, gives those like Burdon disposed to corrupting and sexually exploiting children unprecedented access to vast numbers of potential victims. In enacting s 218A Criminal Code the legislature has plainly intended to punish those who commit such acts and to deter those who might otherwise consider taking part in such behaviour with the aim of protecting children from predatory conduct of this type. It is of concern that Burdon, a successful middle-aged businessman, who, in other ways, has been a worthy member of the community, would prey on an apparent 13 year old innocent and vulnerable child. His approaches were sickening and his persistence in encouraging the fictional Angela to meet him extremely concerning.

As in Campbell and Kennings, there was no real victim in this case and the sentence imposed cannot be as severe as if he physically carried out his suggestions made over the internet. Nevertheless, denunciation, just punishment and special and general deterrence are important factors in determining sentences in cases like this.”

Burdon escaped imprisonment on the Attorney-General’s appeal ultimately because the matter had been outstanding, “with resulting public notoriety”, for more than 12 months.

As mentioned above, the present sentencing Judge referred to the passage at the end of the judgment in Burdon which reads:

“…people who are considering using the internet like Burdon to attempt to make contact with young people with a view to corrupting or sexually exploiting them must now be on notice that such behaviour will be likely to result in a salutary penalty generally involving a term of actual imprisonment, even where indecent physical contact does not and could not eventuate.”

In that passage, McMurdo P was presumably referring to making contact by way of face-to-face meeting, those being the facts of Burdon.

But I repeat what I said earlier, that I do not consider, as justified, a stipulation that before actual imprisonment can be ordered in a case like this, there must have been an attempt to arrange a face-to-face meeting. The discretion should not be so restricted or fettered. The proper analysis of all of the circumstances of the case may nevertheless lead to a conclusion that considerations of denunciation and deterrence do warrant actual imprisonment.

A meeting for the purpose of sexual exploitation carries particular risk to the immature victim. But so does indecent communication by an offender of mature years directed at an immature and therefore vulnerable child over the Internet. The graphic, salacious nature of what this applicant said, and did, if directed to a truly vulnerable 13 year old girl, would have carried serious potential to corrupt.

In this case, notwithstanding there having been no attempt at a face-to-face meeting, a sufficiently grave aggregation of circumstances to support the order made by the Judge rested in the fact that the conduct occurred on two occasions separated by a period, that is was the applicant who instigated the conversations, that the applicant invited the first supposed child to introduce him to a second child, that the applicant over a not insubstantial period displayed the real time images of himself masturbating (which distinguishes this case from the others referred to above), and that the conversations were sexually inquisitive, salacious and explicit, with the supposed child presenting as sexually uninformed, reluctant and nervous.

I do not consider that the Judge erred in his approach, or that the sentence imposed – in requiring actual imprisonment – was manifestly excessive. I would refuse the application.

McPHERSON JA: I have read and agree with the reasons of the Chief Justice for refusing this application for leave to appeal against sentence.

JERRARD JA: In this application I have come to the same conclusion as the learned Chief Justice, and I adopt his description of the relevant facts.

R v Kennings

In R v Kennings [2004] QCA 162 that applicant pleaded guilty to one count of using the internet to procure a person whom he believed to be under 16 years of age to engage in a sexual act. That applicant was sentenced to imprisonment for two and a half years, suspended after he had served nine months, with an operational period of four years; the sentence was reduced on appeal to a head term of 18 months, suspended forthwith as at the date of appeal. That meant an effective suspension after the applicant had served three months of the 18 month sentence. That applicant was 25 years old when he offended, using false internet identities, one of which was used in an attempt to procure a person who was in fact a police officer, but whom the applicant believed to be a 13 year old girl, to engage in a sexual act. That applicant arranged to meet the believed child, after sending explicitly sexual communications to her. He pleaded guilty to an ex officio indictment, and he had no previous convictions. After his arrest he had voluntarily sought and received treatment from a consultant psychiatrist.

On his application this Court considered that his personal circumstances, the fact that no real child was the recipient of his communications, his obvious remorse and co-operation with the authorities, and the ongoing psychiatric treatment he was receiving – as well as the prognosis for his future – resulted in the sentence imposed being manifestly excessive. The judgment of the Court, relevantly delivered by Mullins J, expressly observed that it could not be said that a sentence requiring actual imprisonment was outside the range of appropriate sentences for that applicant. The point was that the actual imprisonment imposed was simply too long.

R v Campbell

In R v Campbell [2004] QCA 342, that applicant had likewise communicated with a police officer whom the applicant believed to be a 13 year old girl, likewise communicated explicitly sexual matters to her, and he also attempted to arrange a place at which to meet the believed child. During the course of his communications he sent her two still photographs of himself playing with his erect penis and on a number of occasions exhorted her to masturbate herself. This Court dismissed his application for leave to appeal a sentence of 18 months imprisonment suspended after three months with an operational period of four years. He was 22 years old when he offended and he had no prior convictions. This Court considered the judgment in Kennings did indicate the appropriate level of sentencing for offences of the type in question. Mr Campbell, like Mr Kennings, had pleaded guilty to one offence only.

R v Burdon

In R v Burdon; ex parte Attorney-General (2005) 153 A Crim R 104 this Court dismissed an appeal by the Attorney-General against sentences imposed on Mr Burton in respect of pleas to two offences against s 218A of the Criminal Code, those being using the internet to expose a person Mr Burdon believed was under the age of 16 to an indecent matter, and using electronic communication to procure that person to engage in a sexual act. Mr Burdon had been sentenced to perform 240 hours of community service on one count, and to a wholly suspended term of 18 months imprisonment on the other.

He was 50 years old when he made contact with a person he believed to be a 13 year old girl – in fact a police officer – and after engaging in explicitly sexual communications with her, he sent her a still photograph of his erect penis. That conduct constituted one count. He arranged to meet her at the Valley but instead met police officers. He proposed, in his communications with her, that he would perform what would be indecent acts upon her when they met.

Mr Burdon, like Mr Kennings, had sought professional help prior to his being sentenced. Mr Burdon had sought his help from an experienced psychologist. He had no prior convictions and was self-employed. References he tended established that he had previously been a hard working and decent citizen.

This Court considered that there were some extremely serious aspects to his offending and that people like him who were considering using the internet to make contact with children, with a view to corrupting or sexually exploiting them, must now expect that that behaviour would be likely to result in a penalty generally involving a term of actual imprisonment, irrespective of whether indecent physical contact did occur.

This Court also held, in a judgment delivered by the President, that it was difficult to determine whether Mr Burdon’s early plea of guilty, co-operation with the authorities, good prior history and character, efforts at rehabilitation, and low risk of re-offending, were sufficient to allow for an effective non-custodial sentence, even in his case. However, the Attorney’s appeal was dismissed, because Mr Burdon had completed his 240 hours of community service in an exemplary manner, and the matter had been hanging over his head for a period of about a year. That judgment makes it difficult to sustain an argument that a sentence involving actual imprisonment is manifestly excessive, certainly in any matter in which there is an arrangement made to meet with the believed child. The latter conduct essentially demonstrates that the particular offender is prepared to go beyond electronic communication, and is preparing for the opportunity to commit actual sexual acts with a child. It is conduct relevant to the need to deter similar behaviour by others, and to the risk to children that any re-offending would pose.

R v McGrath

In R v McGrath [2005] QCA 463 that applicant succeeded in having sentences of four months imprisonment, imposed in respect of five offences against s 218A, reduced by having those sentences suspended after six days, with an operational period of 12 months. Those sentences of four months of suspended imprisonment were imposed by this Court on two of the counts, and on the three others this Court ordered that that applicant be admitted to probation.

That applicant, like each of Mr Kennings, Mr Campbell, and Mr Burdon, had no previous convictions, and Mr McGrath pleaded guilty by way of an ex officio indictment. He was only 19 at the time he committed two offences of using the internet with intent to procure a person he believed to be a child under 16 to engage in a sexual act, and three offences of using the internet with intent to expose a child under 16 to an indecent matter. He believed he was communicating with two 13 year old girls, but in reality he was dealing with police officers.

That applicant communicated with one believed 13 year old on sporadic occasions over a three month period, putting blatantly sexual propositions to her, as well as providing her with information about how to perform various sexual acts. There were questions raised about meeting her, although no firm arrangement was ever made. He communicated with the second believed child on nine occasions covering two months. Meeting her was discussed but no arrangements were made. This Court concluded that he was disinclined to actually meet her; he had terminated one conversation in which a meeting was discussed by saying “You’re too young; don’t worry about it.”

That applicant was sentenced on the basis that no explicit images were sent to the girls, which distinguishes his behaviour from that of Mr Hays. This Court considered that behaviour in Kennings was worse than what Mr McGrath had done, and that each of Campbell and Burdon were cases where the relevant conduct was worse than Mr McGrath’s. This Court also considered the sentences imposed in Campbell and Kennings were more severe than Mr McGrath’s, because of the suspended imprisonment applicable to Campbell and Kennings.

Section 9(5) and s 9(6) of the Penalties and Sentences Act 1992 (Qld)

In McGrath, Mackenzie J, with whom de Jersey CJ and Williams JA agreed, provided a careful analysis of s 218A of the Criminal Code and of s 9 of the Penalties and Sentences Act 1992 (Qld), concluding that the offences provided in s 218A were offences of a sexual nature committed in relation to a child under 16 years, irrespective of whether or not an actual child under 16 was the recipient of a particular offender’s communication. His Honour also held that the essential purpose of s 218A was to criminalise conduct where people use the internet, with one of the required intents in relation to a child under 16, and that the punishment regime should not depend on whether the person actually communicated with a child under 16 or was mislead into believing that that offender was doing so. Significant sentencing matters, provided for by s 9(6) of the Penalties and Sentences Act 1992 (Qld), included the need to protect other children from the risk of particular offenders re-offending, and the need to protect children generally. The judgment in McGrath, in my respectful opinion, makes it important for sentencing courts to pay careful attention to the provisions of s 9(6) when sentencing for offences against s 218A.

In the matter of McGrath, that applicant had had four therapeutic sessions with a psychologist, who had concluded that Mr McGrath was remorseful and that there was no indication that he had sexual interests for young adolescents or children generally, and that it was unlikely that he would re-offend. This was especially so, given the apparent extent of his remorse and his realisation of the foolishness of his actions, together with his preference for young adult women. That applicant had also consulted a psychiatrist who had opined that Mr McGrath did not meet the diagnostic criteria for paedophilia, and that he was simply an immature and rather lonely young man who needed counselling to help him have real relationships where inappropriate age factors were obvious and easily eliminated.

This Court held that, having regard to those conclusions, the need to protect children from that applicant re-offending was not likely to be as great as it would be in other cases, and there was nothing else on sentence obviously relevant to s 9(6)(j) of the Penalties and Sentences Act 1992 (Qld), namely anything else about the safety of children under 16 the sentencing court considers relevant. There remained therefore only the issue of general deterrence in Mr McGrath’s case, since the need for personal deterrence was less weighty than in many cases, because of Mr McGrath’s apparent realisation of the consequences of re-offending. The judgment of this Court shows that it considered it important that Mr McGrath had shown signs consistent with disengagement towards the end of his period of activities, and that he had not sent any explicit sexual images to either believed victim. In the result this Court held the sentencing process had miscarried by the learned sentencing judge over-emphasising general deterrence and amended the order imposed as described.

This applicant had not demonstrated by conduct prior to his sentence that he has improved his own prospects of rehabilitation, such as by voluntarily seeking counselling about his behaviour, a matter very relevant to s 9(6)(f) of the Penalties and Sentences Act 1992 (Qld). Had he done so, that may have established that there was little or no need to protect other children from the risk of his re-offending, leaving only the issue of general deterrence, as happened with McGrath. The statutory obligation provided in s 9(6) of the Penalties and Sentences Act 1992 (Qld) for a sentencing court to have regard primarily to the need to protect other children from that risk justifies the sentence of suspended imprisonment. The fact that Mr Hays made no attempt to meet with any believed child certainly raises the question whether a term of actual imprisonment was necessary to satisfy the objects in s 9(6) of the Penalties and Sentences Act 1992 (Qld), and whether actual imprisonment was manifestly excessive in his circumstances. But he has not revealed that he had obtained counselling, and his admitted behaviour when he offended including his asking the believed 13 year old for an e-mail or internet address of any of her friends. That is, he used sexualised contact with one believed child as a means of making contact possible, for similar purposes, with other believed children. That conduct was relevant to the statutory obligation to have regard to the risk of his re-offending. Other actual conduct he engaged in, namely sending the 13 year old real time images on two separate days of himself masturbating, made relevant the need to deter similar behaviour by other adult men. Accordingly, I would not vary the sentence imposed.