The thirteen s 66EB offences (being sequences 1, 31, 5, 33, 11, 13, 14, 17, 22, 24, 26, 35, 37)
- The s 66EB offences were committed in different ways, in the sense that there were some differences in the nature of unlawful sexual activity the respondent was intent on procuring from some of the complainants and the duration of the offending. In addition, as the offences involved young males of different ages, different statutory maxima applied.
- There are, however, some features of the offending common to all thirteen s 66EB offences. First, they were all committed via electronic media of some kind. Secondly, the communication with each of the complainants featured explicit vernacularised language to describe unlawful sexual activity, including in most cases fellatio and/or anal intercourse, and invariably involved either the electronic transmission of images of male genitalia (the respondent's, the complainant's or on occasions a downloaded photograph from an internet site) or a request for the same. Thirdly, all offences included the respondent's use of fictitious personae to lure the complainant into a false belief that he was communicating with a male or female teenager about a consensual sexual exchange, and involved the respondent using various tactics to solicit the complicity of the complainant in homosexual or bisexual activity, including falsely representing to some complainants that he was a 17 year old school boy. Finally, all offences evinced a determination on the part of the respondent to achieve sexual gratification at the expense of the complainant's dignity and privacy.
- The differentiating factors include the duration of contact, extending from days to weeks with some complainants and extending over months with others. They also include the extent to which the respondent persisted in making contact after a complainant had signalled a lack of interest in pursuing any proposed arrangements to meet and the methods the respondent used to coerce or cajole continued communication and contact (including offers of money and sometimes passive threats of self-harm), frequently after the child had indicated an unwillingness to escalate the sexual contact into a physical encounter or when the complainant wanted no renewed physical contact after meeting the respondent.
- This Court has addressed the offending constituted by the allied offence of procuring a child under 16 for sexual activity using a carriage service under s 474.26(1) the Criminal Code Act (Cth) in a number of judgments (Gifford v R [2016] NSWCCA 302; R v Fuller [2010] NSWCCA 192; R (Cth) v Poynder [2007] NSWCCA 157; R v Nahlous [2013] NSWCCA 90; R v Asplund; Asplund v R [2010] NSWCCA 316; Tector v R [2008] NSWCCA 151). To date, the Court has not had occasion to consider the approach to sentencing for the offence under s 66EB of the Crimes Act where the use of a telecommunications service is not an element of the offence.
- The collected researches of the parties produced a number of judgments of superior courts of other States and Territories where sentences for offences similar to the procuring offence under s 66EB have been under consideration. However, in each case, the use of a telecommunications service or carrier was implicated as an element of the offence. That said, although a breach of s 66EB need not involve the use of a carriage service, given the ubiquity of electronic media generally and its obvious utility as a means of making anonymous contact with children, there is every likelihood that a person who is intent on procuring a child for unlawful sexual activity will seek to initiate and maintain contact by those means.
- The authorities were of some use in identifying the factors relevant to an assessment of the objective seriousness of offending of a similar kind to the offence in s 66EB although it is not necessary to refer to any of them in detail.
- It suffices for present purposes to refer to the oft quoted passage from R v Fuller [2010] NSWCCA 192 where McClellan CJ at CL said at [25]:
The internet has produced many benefits for the community but has also brought some problems. One of those problems is addressed by s 474.26 of the Commonwealth Criminal Code. The offence is made possible because the internet provides access to communicate with others anonymously. Tragically, experience has shown that it is not uncommon for immature persons, particularly females, to explore the internet and accept communications from adults who are seeking sexual encounters with children. Because a child can access and navigate the internet without the supervision of a responsible adult, the opportunity for a sexual predator to identify a potential victim is significant. If communication is made, the harm to the young person may be considerable, even if sexual activity does not ultimately occur. Of course, the potential for harm will be greater if sexual activity does take place.
- His Honour went on to observe at [36]:
Regrettably the offence committed by the respondent is not uncommon. Consequently there are previous decisions from which guidance can be obtained as to the appropriate range of sentence. By providing a maximum penalty of 15 years imprisonment the legislature has made plain the serious nature of the offence. Apart from the need to appropriately punish and deter individual offenders, there is a significant need in the interests of the community to impose a sentence that will, in so far as may be possible, effectively deter other would-be offenders. The offence is one which is difficult to detect and investigate and for this reason, special provision has been made so that offenders can be identified even where there is no actual victim.
- I note that in that case (and others to which this Court was referred) no victim was involved in the offence. The offending was detected by police introducing a fictitious child.
- In R v Asplund [2010] NSWCCA 316 (a judgment delivered four months after Fuller) in another successful Crown appeal against manifest inadequacy (on this occasion for two breaches of s 474.27(1) where a child victim was involved), McClellan CJ at CL emphasised as follows:
[50] The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity.
- These observations have obvious application in the sentences to be indicated on re-sentence and in the appointment of an aggregate sentence and non-parole period.
- I accept that the respondent's prospects of rehabilitation are not unfavourable. I am not, however, prepared to re-sentence him on the basis that they are of the high order his Honour ascribed to them. I accept that at the time of sentence a sex offender's willingness to seek assistance and undertake treatment programs might signal insight into their offending and that they are genuinely contrite. I also accept that the respondent does appear to have that insight and an appreciation of the ramifications of his offending behaviour on others. I also accept that his contrition is genuine. However, because pharmacological treatment options designed to assist in a sex offender's rehabilitation in a custodial setting are no longer available unless the inmate is able to fund the cost of the treatment and because, as the respondent has made clear in his affidavit read on sentence, he is without the means to fund any course of treatment or any prospect of being able to do so in the future, when measured against actuarial assessments of risk he must be considered at this time as being at least at a moderate risk of reoffending. As a consequence, the sentence to be imposed by this Court must reflect the need to protect the community from that risk as provided for in s 3A(c) of the Crimes (Sentencing Procedure) Act.
- That said, the steps the respondent took of his own volition before sentence, consistent with his evidence on re-sentence, allows for a finding that his commitment to seek assistance in the future is not a cynical expression of self-interest. This evidence must be given some weight in mitigation of sentence to ensure that the sentencing principle of rehabilitation in s 3A of the Crimes (Sentencing Procedure) Act is accorded appropriate weight as one of the objectives in the exercise of a sound sentencing discretion. The principles of general deterrence and denunciation must also carry significant weight in the appointment of an aggregate sentence and non-parole period in this case.
- The respondent's pleas of guilty and the evidence which allows for his offending to be viewed in the context of a dysfunctional upbringing and his underlying psychosocial profile will also be taken into account in the appointment of the indicative sentences, although it does not, in my view, diminish his moral culpability to any marked degree or the weight to be attributed to general deterrence in the re-sentencing exercise.
- The indicative sentences that I propose are reflected in the table below. It mirrors the way in which the sentences indicated at first instance were tabulated in [9] above.
Victim Sequence Section Indicative Sentence Maximum Sentence
OD 1 + Form 1 66EB(2) 3 years and 6 months 15 years
2 61N(1) 6 months 2 years
141 TB 31 66EB(2) 2 years 12
32 66C(3) 4 years 10
MC 5 66EB(2) 2 years 15
EW 8 91D(1)(a) 3 years 10
33 66EB(2) 2 years 12
34 66C(3) 4 years and 6 months 10
DC 11 66EB(2) 2 years 15
BP 13 66EB(2) 2 years 15
CCD 14 66EB(2) 2 years 15
TOC 17 66EB(2) 2 years 15
LDB 22 66EB(2) 4 years 12
ADC 24 66EB(2) 2 years 15
KR 26 66EB(2) 2 years 15
EM 35 66EB(2) 2 years 12
36 66C(3) 4 years 10
JG 37 66EB(2) 3 years 15
38 66C(1) 5 years 16
Rolled up 3 91H(2) 1 year and 6 months 10