R v Jones

The Sentence Hearing

1. As previously noted Ms Climo of counsel appeared for the Crown on the sentence hearing. The Commonwealth Crown sentence bundle was tendered (Exhibit A) which contained the following: 1. Indictment 2. Communications between the offender and the AOI relating to count 3 on the indictment, and 3. The offender's conviction record.
2. In addition the Crown tendered a SAR prepared by Katherine Coleman, Community Corrections Officer dated 30 August 2023 (Exhibit B).
3. Mr Ozen tendered the defence bundle (Exhibit 1) which contained the following: 1. Letter of certificate of attendance from Psychology Pathways dated 28 August 2023. 2. Letter of Cherie Jones, the wife of the offender, dated 13 August 2023. 3. Letter of Dawn Douglas, mother of the offender, dated 17 August 2023. 4. letter of Alan Bain, the offender's employer, dated 21 August 2023. 5. Letter of Laura Douglas, dated 22 August 2023, and 6. Letter of Peter Douglas dated 22 August 2023.
4. In addition to the tendered material, both the Crown and Mr Ozen provided detailed written submissions which were marked MFI 1 and MFI 2 respectively, and both counsel addressed the court further by way of extensive oral submissions. I wish to take this opportunity to thank both counsel for their very detailed written and oral submissions in this matter. The sentence was ultimately adjourned to this date for judgement.
5. As previously noted, the offence is one contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty upon conviction of 15 years imprisonment.
6. Given that this is a Commonwealth offence the offender is to be sentenced having regard to the provisions of Part 1B of the Crimes Act 1914 (Cth). As with all sentencing it is necessary for me to assess the objective seriousness of the offence for which the offender is to be sentenced. I am required to do this by reference to the maximum penalty prescribed by the Parliament, it being a clear legislative guidepost as to the seriousness with which the offence is to be viewed, the facts and circumstances of the offending, relevant common law principles and by having regard to the applicable sections of the Crimes Act 1914 (Cth).

Facts

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

The Crown Case at trial

1. In submissions the Crown asserted that by its guilty verdict jury found the offender: 1. Was at least 18 years of age. 2. Intentionally used a carriage service to transmit a communication to another person, being the 'Assumed Online Identity' (the AOI). 3. He did so with the intention of making it easier to procure the AOI to engage in sexual activity with him. 4. He did so believing the AOI to be under the age of 16 years.
2. It is uncontroversial that only elements C and D were in issue in the trial, having regard to the nature of the cross examination, and the use of agreed facts and other concessions by the offender. In essence the offender's case was that the communications were engaged in on the platform 'Chat IW' which was an over 18 adult chat site. He gave evidence in the trial, consistent with what he had told the police upon his arrest, that he believed at the time that he was engaging in a fetish type role play scenario with someone he believed was an adult female. The issue in the trial was therefore narrowed to his belief as to the age of the person with whom he was communicating, and his intention of making it easier to procure that person to engage in sexual activity with him.

The Crown submissions as to the facts and objective seriousness

1. In respect to element D, that is, the element of belief, the Crown submitted that the court would be satisfied beyond reasonable doubt, consistent with the jury's verdict that the offender believed he was communicating with a 14-year-old schoolgirl, because on 2 February 2022 when the conversations were on the Chat IW platform, the AOI told the offender she was 14, and repeated this over the course of the conversations between 02/02/2022 and 07/02/2022. In particular, the AOI told the offender again at 4.39pm on 03/02/2022 on Gmail Hangout, when she messaged, "I like u don't treat me like I'm a dumb 14 year old", to which the offender replied "Well it's a bit naughty you are 14 but I'm not thinking about that", and a third time on 04/02/2022 when she said, "Mum would freak out if I got pregnant at 14", and 07/02/2022 at 4.59pm when the AOI says, "sucks being 14. I have to wait 2 more years to get my L's". The AOI also refers to going to school and skipping school in the conversations of 07/02/2022.
2. Further the Crown submitted in respect to element C, that is, that the offender intended in transmitting the communications to make it easier to procure the recipient to engage in sexual activity with him, the court would be satisfied, consistent with the jury's verdict, that he intended to engage in the sexual activity of the type identified in the chats including on Chat IW on 02/02/2022, notably, "I can just show you me or rub…", And, "like you can see my penis" and "you can touch it if you want", or "take a picture" of his penis to "send to your friends or look at it at home". On 03/02/2022 the offender messaged the AOI on Gmail hangout when discussing a photograph he messaged, "Yeah. Normal, nude, penis, hard soft lol", and on 04/02/2022 when the offender messaged, "Kiss cuddle may be play whatever you want". When the AOI sought clarification as to "play", the offender messaged, "like. I could please you if you wanted or you can pleasure me if you want." When the AOI asked, "do you mean like sex stuff?", The offender replied, "Haha! Yeah. But when you're ready and only if you want to." He then messaged, "I'd like to take it slow get you excited and ready and then we can try if you want. But you may just like other stuff to. Doesn't have to be full sex lol." Later but also on 04/02/2022 at 4:37 PM the offender messaged, "I don't know if you want me to say it lol. Yea your pussy against my dick." The Crown submitted that the content of these messages without more established clearly that the offender intended to engage the AOI in the particular sexual activity identified at the very least, in the messages, and the offender sought to establish the relationship and secure the trust of the AOI by indicating throughout the communication that she was in control and he would be guided by her in terms of her comfort as to the nature of the sexual activity, stating that he trusted her. The Crown submitted that the securing of the AOI's trust in this way was intended by the offender for the purpose of making it easier to engage in the sexual activity as disclosed by the offender to the AOI in the messages.
3. The Crown asserted having regard to the jury verdict the court would be satisfied beyond reasonable doubt and proceed to sentence on the basis that: 1. The offender made it easier to procure the AOI to engage in sexual activity with him by introducing various sexualised subjects into the conversations between them between 2 February 2022 and 7 February 2022. 2. That the offender introduced more sexually explicit references and identified the nature of the future sexual activity he intended in the course of the messages, and throughout - 3. The offender sought to gain the trust of the AOI by complimenting her on her appearance, telling her frequently, "you're so beautiful, that she was, "beyond beautiful", and that he really liked her, and assuring her during the course of the messaging that she was in control of the nature of the communications and anything they did would only be what she wanted to do, or was comfortable with.
4. The evidence in the trial disclosed that at the time of the communications the offender was 37 years old, and the AOI was 14. This represents a 23-year age gap between them. As earlier noted, the Crown identified numerous references by the AOI in the course of the communications to her being 14 years old, and to her mother and her being a school student. The AOI therefore had the characteristics of a 14-year-old schoolgirl living with her mother. Section 474.29AA Criminal Code (Cth) requires that certain mandatory factors are to be considered in sentencing an offender. Relevantly in the facts of this case the age and maturity of the AOI (the intended victim) was that of a 14-year-old schoolgirl. The court must consider her age and level of maturity as a relevant factor on sentence.
5. In any assessment as to the seriousness of the offence, the Crown submitted with reference to R v Asplund (2010) A Crim R 48 at [48]-[49], the court should take the following matters into account: 1. The level of persistence in the use of the carriage service for grooming purposes. 2. The nature of the indecent material communicated (the sexualised content and/or the explicitness of the messages). 3. The extent to which the intent to engage in future sexual activity and the nature of that activity is exposed and developed. 4. The nature of the future sexual activity intended. 5. The age and power differential between the victim and the offender. 6. The nature of any prior relationship between the victim and the offender, and 7. The offender's level of awareness and indecency and deliberate witness in communicating.
6. The Crown also referred to Tector v The Queen (2008) 186 A Crim R 133 at [94], where the following additional factors were identified as being relevant to the assessment of the objective seriousness of the offence: 1. Whether any inducement was offered to the recipient of the communications; and 2. Whether the offender took any steps to preserve his anonymity.
7. Ultimately the Crown submitted that the offence, when one has proper regard to the content of the messages, occurring as they did in the context of the offender assuring the recipient that she was in control of the communications each day between 2 February 2022 and 7 February 2022 falls below the mid-range of objective seriousness for offences of this type. It was the offender who introduced the sexualised content, which was of some explicitness, and the messages identified the future sexual activity intended by the offender at the time he was complimenting the AOI and assuring her that she was in control of the communications.
8. The Crown submitted that the court would be satisfied beyond reasonable doubt the conversation, and both the tone and content of the messages is intended to gain the trust of the AOI to make her feel she was in control of the situation at the time she was being groomed for the specific purpose of making it easier for the offender to procure her for sexual activity with him, the nature of which was identified by the offender in the content of some of the messages. The Crown asserted that it is open for the court to be satisfied beyond reasonable that the communications transmitted by the offender including those identified above, were transmitted with the intent to make it easier, in all ways identified, to procure the AOI to engage in sexual activity with him.
9. In respect to the element of the offender believing the recipient of his communications was under the age of 16 years; the offender in speaking with the police, and in his evidence said that he was engaged in role-playing with someone he believed was an adult. He denied that he had sent any communication with the intention of making it easier to procure the recipient to engage in sexual activity with him, or that he believed the recipient to be under the age of 16 years. By virtue of its verdict of guilty, the Crown submitted the jury must have necessarily rejected the offender's explanation, and found beyond reasonable doubt, as the court would, that at the relevant time he believed the recipient to be under 16.
10. The Crown further submitted that the court could be satisfied beyond reasonable doubt that it was the offender who initiated communication with the AOI via the social networking site 'ChatIW', at the time using the online identity of "Rubbing in the park". On 2 February 2022 the AOI disclosed she was 14 years old, and throughout the conversations that she was a schoolgirl living with her mother. Consequently, from the beginning of the offending on 2 February 2022, the offender was aware that the AOI represented herself to be a 14-year-old schoolgirl, and he believed that to be the case. The Crown submitted the court could be satisfied beyond reasonable doubt the offender believed the AOI was a 14-year-old schoolgirl and lived at home with her mother during the period of the messaging between 2 February 2022 and 7 February 2022.

The offender's submissions as to the facts and objective seriousness

1. Whilst the offence particularised conduct between the dates 2 February 2022 and 7 February 2022, the messages giving rise to the offending occurred over a 4-day period between on 2 February 2022, 3 February 2022, 4 February 2022, and 7 February 2022. At the time the offender was 37 years old, and the communications were with an undercover police officer posing as a 14-year-old girl. Mr Ozen submitted that the guilty verdict establishes the communication was with a single AOI, that the offender believed to be a girl under 16 years of age. It was submitted that the evidence in the trial established that there was no prior relationship between the offender and the AOI. Properly characterised senior counsel for the offender submitted that the offence involved 4 discrete conversations all of which involved an exchange of messages back and forth in the course of the conversation (at times made up of numerous messages) occurring each day. There were 6 days between the first conversation on 2 February 2022 and the last conversation on 7 February 2022.
2. On 2 February 2022 the conversation took place on Chat IW, an adult chat site that the evidence in the trial disclosed was for persons over 18 years old, with the conversations involving role play and fetishism, including sexual fetishes.
3. Senior counsel conceded that implicit in the jury's verdict of guilty for count 3 on the Indictment, the court would proceed to sentence on the basis that the communications between the offender and the AOI, contained in Tab 2 of the Crown sentence bundle (Exhibit A) did take place, and whilst occurring, firstly the offender at some time in the offending period communicated with the intention of making it easier to procure sexual activity with the AOI, and secondly, he believed that she was under the age of 16.
4. In considering the features identified in R v Asplund (op cit) at [8] as to the level of persistence in carriage service council noted that the substantive conversations between the offender and the AOI took place on 2, 3, 4 and 7 February 2022 over four days. The conversations on 3 and 4 February occurred over approximately 1.5 hours and on 7 February for about 1 hour. It could not be said that the communications were persisted, or overly repetitious, or the offender "bombarded" the recipient with messages. Examination of the conversation shows that there is "back-and-forth" between the offender and the AOI, and there is no persistence, pressuring, or incessant messaging from the offender to the AOI. At no point does the AOI display any reluctance or reticence in continuing the conversation.
5. In considering the breadth conduct captured by the provision, it was submitted by senior counsel that the material falls at the lower end of "indecent material". The "highpoint" of the conversation takes place on 4 February 2022 in particular at pages 15 and 16 of the Crown sentence bundle. Counsel asserted that the only explicit references to sexual activity are on 2 February 2022 on Chat IW where the offender says, "like you can see my penis". Later on, 4 February 2022 the offender says in his message of 4:20 PM, "I could please you if you wanted or you can pleasure me if you want." Later at 4:35 PM in answer to the message from the AOI which said, "but what other stuff do you mean?", The offender said, "but I can play with you with my fingers, lips, and tongue. You can even rub your girl bit against my guy bit." When queried further I the AOI who asked "why you being weird? You mean my vagina? You can say it, I'm 14 not 6 with a laughing emoji", the offender responded, "I don't know if you want me to say it lol. Yea your pussy against my dick." This is as explicit in regard to intended future sexual activity as the communication became. Counsel also noted that the offender set three photographs of himself to the AOI. None of those photographs would be categorised as "indecent".
6. As to the extent to which the intent to future sexual activity is developed and/or the nature of the future sexual activity, counsel conceded a level of sexual suggestiveness in some of the offender's communications, but such activity is spoken about in general, ambivalent, and relatively abstract terms. The messages identified which contain explicit reference to future sexual activity make up a very small proportion of the entirety of the conversation and messages. The nature of the future sexual activity, if any, is captured in the messages referred to above which took place on 4 February 2022.
7. Counsel conceded there was an age difference 23 years between the offender and the purported age of the AOI. Beyond this inherent power differential that exists with such an age gap counsel submitted there is nothing to suggest any additional level of power discrepancy. The evidence discloses there was no prior relationship between the offender and the AOI. In particular, there is nothing in the evidence to suggest a prior relationship authority between the offender and the AOI.
8. As to the offender's level of awareness and indecency and deliberate us in communicating, counsel conceded inherent in the jury's verdict is an acceptance that the offender believed the AOI was a person under 16 years. However, it is also apparent that the offender took deliberate steps to limit his level of indecency throughout the conversation. Furthermore, on the evidence the court would not find that the AOI was someone who was obviously 14 years old. Whilst the verdict means that the offender must be taken to have known or believed the AOI was under 16, it could not be said on the evidence, with particular regard to the photographs set to the offender by the AOI, that the offender must have assumed she was 14 years old.
9. Senior counsel also referred to a number of other features that were present in the offending. The evidence establishes that no inducement was offered to the AOI to participate in the conversation, and it was the AOI are not infrequently facilitated the continuation of the conversations. Further, in sending photographs of himself, the offender took no steps to preserve his anonymity. No effort was made to disguise his appearance, and he told the AOI his name was "Luke". Counsel also submitted that in this case there were no actual or concrete steps or any plan to meet up, beyond general reference to meeting in a park or at the shops on two days. The final 3 messages of 7 February 2022 from the AOI and a single message from the AOI on 8 February 2022 are not responded to by the offender. Counsel submitted that the Court may infer that the offender had ceased communication at this time by not responding.
10. With reference to those features identified as present, and those absent in the offending, Senior counsel for the offender submitted that this offending falls at the lower end of seriousness for offences captured by this legislative provision.

Determination as to facts and objective seriousness

1. As previously noted it is the submission of the Crown that the court would be satisfied beyond reasonable doubt that the conversations, considering both their tone and content were transmitted by the offender to the AOI at a time he believed her to be a 14-year-old schoolgirl. A proper consideration of individual messages and the entirety of the messages more broadly over the period of the offending discloses that the offender sought to gain the trust of the AOI by continually reassuring her and complimenting her. He introduced sexually suggestive content culminating in more explicit language, including that he could pleasure her, or she him, play with her with his fingers, lips, and tongue, culminating in the message, "Yea your pussy against my dick". During the period of the messages the offender told the AOI he wanted to meet her, presumably to have the AOI engage in sexual activity with him. The Crown asserted that the court could find beyond reasonable doubt that the offender's intention during the conversations was to make it easier for him to procure the AOI to engage in sexual activity with him. Whilst the Crown did not submit as to the nature of the intended future sexual activity, I accept that implicit in her submission was the offender's intention to engage at least in the sexual or indecent activity contained in those messages identified by the Crown to include sexual activity of an indecent and sexual nature. He intended to gain the trust of the AOI to make her feel she was in control of the situation at the time she was being groomed for the specific purpose of making it easier for the offender to procure her for sexual activity including sexual intercourse with him, and he did so at a time he believed the AOI was a schoolgirl aged 14 years.
2. Having regard to the elements of the offence as I must, and the jury's guilty verdict, the view of the facts adopted by me for the purposes of sentencing must be consistent with the verdict of the jury. In my opinion it is readily apparent having regard to the jury verdict the offender at a time or times during the period had or developed the requisite intention of making it easier to procure the AOI for sexual activity with him. Whilst the Crown has submitted that the court would be satisfied beyond reasonable doubt that such sexual activity included at the very least the sexual conduct stated in the messages, particularly in the messages of 4 February 2022 which include the offender pleasuring the AOI, and her him, playing with the AOI with his fingers, lips, and tongue and her pussy against his dick. Considering the nature and the actual content of the messages, I am not satisfied beyond reasonable doubt that the offender intended any sexual activity beyond that particularised in the offending messages. I am of the view that the offender's intention as the jury found was to make it easier by virtue of the communications to procure the AOI to engage in sexual activity with him. As to the nature of the actual sexual activity, I could not be satisfied, that it could include anything beyond the content of the messages. Having considered the evidence in the trial, and in particular the transcript of the communications between 2 February 2022 and 7 February 2022 (Tab 2 of the Crown sentence bundle - Ex A) I am of the opinion the offender's intention as found in the jury's verdict was not of a "fixed intent" to engage in any particular or identified sexual activity, but through his actions, the real possibility of such sexual activity, in particular, sexual conduct of the nature articulated in the messages.
3. It is also apparent, and I am satisfied beyond reasonable doubt that the offender communicated with what he believed was a single person, a schoolgirl who was 14 years old. Having come to this view I am mindful of the photographs sent by the AOI, and as counsel indicated they depict various images of a young woman who appears older than 14. There was no prior relationship between the offender and the recipient of his messages. I'm also satisfied that the offence involved 4 discrete conversations involving a number of messages exchanged between the offender and the AOI, within a single conversation occurring each day. There was no conversation on 5 February 2022 beyond the AOI messaging, "Hi, u there?", to which the offender responded, "Hey Beautiful". On 6 February 2022 the only message was that of the AOI which said, "hello, are you there?" This communication at the very least, if not it and the messages of 5 February 2022 are relatively innocuous, and I am not persuaded could be said to make up the offending. The relevant conversations commenced on 2 February 2022 initially on Chat IW which the evidence disclosed was an adult chat site but moved on 3 February 2022 to Gmail Hangout and the offender's address of Tiny Dancer, which the unchallenged evidence in the trial established was the offender's wife's Gmail address. The evidence discloses that it was initially the idea of AOI to move the conversation from Chat IW on 2 February 2022 when she asked the offender, "do you have hangouts or Skype?" Whilst the Crown have identified many of the conversations as gaining the trust of the AOI and introducing sexually suggestive material and ultimately suggestions of more explicitly sexual conduct and references to meeting, I'm also mindful that throughout the various conversations the offender was not infrequently encouraged by the AOI to continue to participate in the conversation. Be that as it may the AOI on a number of occasions disclosed in messages to the offender that she was 14 years old, living with her mother and attending school. The communications by the offender were not overly repetitious, or coercive. The offender did not pursue or bombard the AOI with messages. He did not seek or offer any reward to the AOI for sending him any sexually explicit material. The offender sent three photographs of himself to the AOI without any effort at disguising hiding his identity. The photographs he sent could not be said to be indecent and were clearly photographs of the offender. He also provided the AOI with his name, "Luke" upon her request. Whilst as I have already observed the contents of some clearly became more sexually suggestive and ultimately more explicit, they are not of the explicitness of the associated with offences of this type.
4. It is also apparent that any intention to meet was an idea or lose plan or arrangement at best, which I find was not pursued with any great purpose or commitment by the offender, or with any serious intent or repetitiously by him. I am satisfied there was no plan or detailed arrangement in place for such a meeting. No address or time for the meeting had been arranged beyond it possibly taking place potentially in a park presumably in Hornsby or at the shops. I also find it significant that the final 3 messages on 7 February 2022 relating to the suggested meeting are all from the AOI and are as follows: AOI at 5.12 pm - "xx' AOI at 5.38PM - "Hey you still round smiling emoji". AOI at 8.11pm - "I asked one she is working this Thursday and Friday so I can skip school? She is at home next week".
5. The offender never responded to the final messages from the AOI on 7 February 2022. The AOI again messaged the offender on 8 February 2022 at 4:37 PM when she said, "Hey you there upside-down smiling emoji". It was unchallenged evidence in the trial that the offender was arrested by police at his home after he had been at the pub after work on 10 February 2022. This was the day referred to by the AOI in her message to the offender at 8:11 PM on 7 February 2022. I am satisfied that the offender had withdrawn from conversation on 7 February 2022.
6. For these reasons I am of the opinion that the offending falls appreciably below the broad mid-range of seriousness for offences of this type toward the lower end of objective seriousness.
7. I am satisfied consistent with the jury's verdict in the trial that at some point during the exchange of messages and communications, the offender developed a sexual interest in the AOI, and transmitted the messages with the intention of making it easier to procure her for sexual activity with him, and at the time the offender believed the AOI to be a 14-year-old girl. I do not, however, accept the Crown's submission that the court can therefore conclude the offender had an actual or fixed intention to engage in particular sexual acts, including as the Crown alluded to, possible sexual activity beyond that disclosed in the messages commencing 2 February 2022. Such a finding I am satisfied is not inconsistent with the jury verdict. The offenders sexual interest related to the 'real possibility' of engaging in sexual activity arising from the conversations. This is consistent with the view expressed by the Victorian Court of Appeal in DPP (Cth) v FM [2013] VSCA 129 at [68]. There is no requirement or obligation upon the Crown to establish beyond reasonable doubt the nature of the sexual activity intended by the offender in an offence contrary to s 474.27(1) Cth Criminal Code.
8. In any event, on the facts of this trial I am satisfied of two things. Firstly, having regard to the entirety of the messages of the offender and the context of the conversations in which they were transmitted, I cannot be satisfied beyond reasonable doubt that the sexual intention of the offender went beyond the real possibility arising from the communications of engaging in the indecent and sexual activity contained in the texts initially on2 February 2022 and more particularly on 4 February 2022. Secondly, by 7 February 2022 I find it likely that the offender had abandoned such intention and withdrawn from the communications or at the very least the real possibility of any anticipated future sexual activity with the AOI, noting that there was no response to the AOI's final messages of 7 February 2022 about a meeting, and his non-response on 8 February 2022. This is borne out further by the uncontroversial fact that the offender was arrested on the afternoon of 10 February 2022 the suggested meeting day (Thursday) at his home in Glenmore Park, after he had been at work that day and not in or near or on his way to Hornsby.

Offenders Subjective Case

1. The material tendered on behalf of the offender in the sentence proceedings included a certificate of attendance as to ongoing treatment from his psychologist. In addition, letters were prepared for the consideration of the court from the offender's wife, his mother, his employer, and long-term personal and family friends. The offender is now aged 39 years. At the time of the offence, he was 37. He has been married to his wife, Cherie Jones for more than 18 years and has known her for 26 years. There are three children of the relationship, all boys.
2. In her letter of 13 August 2023, the offender's wife, Cherie Jones reported that she has known the offender for 26 years. The couple celebrated their 18th wedding anniversary on 13 August 2023. She describes the offender as being a pillar for herself and their three sons, his role being indispensable in their lives. Ms Jones gave evidence that in the final stages of her own mother's life she moved in and cared for her for a number of months. At the time the offender was working full-time and caring singularly for the three boys. Each weekend he would drive the three boys several hours to see their mother and grandmother. Ms Jones describes the offender as dedicated to his family, he has a very close and supportive relationship with his children who are close and depended upon him. She describes the offender's capacity for compassion and forgiveness, his kindness and empathy and steadfastness as the reason their relationship has continued. The offender juggles long work hours with the care arrangements for his children, his support for her and his extended family and his ongoing commitment to charitable and voluntary work for those less fortunate in the community.
3. The offender's mother, Dawn Douglas prepared a reference for the offender, dated 17 August 2023. She describes the offender from a young age as demonstrating empathy and compassion, with a very strong commitment and dedication to his family and the community. His mother is aware of the nature of the offence for which the offender has been found guilty. She is also aware of the serious matrimonial issues and infidelity leading up to the offence. She disclosed that since his arrest and charge the offender has sought professional psychological counselling, for his mental health issues. He continues with psychological treatment. The offender has also taken on a mature age apprenticeship for career and professional advancement. The offender has been engaged in volunteer and charitable work since the age of 13.
4. Alan Bain is the employer of the offender stop he provided a letter dated 21 August 2023. Mr Bain disclosed that the offender commenced employment with him in October 2020. He has known the offender for more than seven years and is aware of the guilty verdict in the proceedings and the nature of the offence. He describes the offender as a dedicated, hard-working employee. He has an exceptional work ethic and professional attitude. He says that the offender demonstrates remarkable resilience and adaptability. He has shown in his employment, a high level of teamwork and cooperation, always willing to support his colleagues and collaborate effectively with other employees and clients. The offender's dedication to learning and professional growth has been demonstrated in his willingness to take on any task and his commitment to further studies, which began in November 2022 when the offender commenced his mature age apprenticeship to obtain qualification in carpentry. Mr Bain disclosed that the offender's character traits are indicative of his potential, the offender has proven that he can learn, improve, and face challenges with determination and courage.
5. Laura Douglas provided a letter for the court dated 22 August 2023. Ms Douglas is known the offender for 10 years. She has worked closely with him, particularly in his voluntary work. She describes the offender as someone committed to volunteering, organising events, who spends hours of his own time helping others. The offender displays genuine compassion. Ms Douglas said offender has a very strong and continuing commitment to help and better the lives of others through his volunteer and charitable works. She describes him as someone with genuine respect for others with a conciliatory nature.
6. Peter Douglas has been a friend of the offender for 25 years. He provided a letter for the court's consideration dated 22 August 2023. Mr Douglas in his letter described the offender as a committed and loyal friend who always provides support, particularly at times of personal and emotional difficulties. He says that the offender is empathic, compassionate, and committed to help and support others.
7. A SAR (Exhibit B) was prepared by Katherine Coleman, community corrections officer dated 30 August 2023. That report discloses that the offender continues to reside with his wife and three children. The offender reports that he has a supportive extended family with whom he is close. The offender is currently employed in a full-time capacity completing a mature age apprenticeship in building. Apart from some minor traffic infringements (license expired less than two years; drive across dividing line to do u turn) in 2010, the offender has no prior criminal record.
8. The offender reported to Ms Coleman that at the time of the offences, his mental health had declined due to his matrimonial problems and pressures from the church where he was engaged as a pastor. He disclosed that at that time he would regularly access adult chat websites as an emotional outlet. Prior to be charged, the offender disclosed that he and his wife had started their own "Christian Fellowship Church". He identified that the pressure of the couple's church involvement contributed to their marital problems. This was supported in discussions that the author of the SAR had with the offender's wife. Currently the offender is not involved with the church and reported that he and his wife have engaged in couples counselling to address their matrimonial issues.
9. The offender denied any sexual attraction to children. He reported he would engage in fetish conversation for the purpose of feeling sexually attractive to other women in response to his wife's purported infidelity. He feels he was suffering from depression and anxiety at the time of the offence. Since his arrest and subsequent charge, he has been engaged with a private psychologist and that counselling is ongoing.
10. In regard to the offender's insight into the impact of his offending, he reported that he understands the impact that child sex offending has on the community. The offender expressed a willingness to engage with appropriate interventions and continues with private psychological counselling. The offender has not previously been supervised by community corrections, but his response to the preparation of the report and requirements placed on him by community corrections has been satisfactory, and no issues have been identified in terms of his engagement. The offender was assessed following interviews by the community corrections officer as a low risk of reoffending. This risk was readjusted to a medium risk overall of reoffending, having regard to his being assessed as an "average risk" according to the Static-99 assessment. Based upon his interviews and assessment, community corrections will have contact with the offender every two weeks, in the event he is given a community-based order. His supervision plan would include verification and monitoring his engagement with his private psychologist. Ongoing monitoring of his engagement with his employer. Monitoring relationship stability through third-party checks. Referral for placement with a community corrections psychologist for further assessments to be completed, and supervision to focus on goal setting and managing high risk situations/environments.
11. The offender commenced psychological treatment and counselling with David Kalmar, psychologist on 25 February 2022. As at the time the psychologist provided the certificate of attendance, the offender had attended 22 counselling appointments with the psychologist up to 17 August 2023. The psychological counselling continues.

The offender's character.

1. The offender has no criminal record. He has two convictions from 6 July 2010 for traffic infringements of driving with a driver licence that had been expired for less than 2 years and driving across dividing lines to do a U turn. Each infringement occurred on 21 May 2010. Apart from these traffic infringements he has never been charged with any criminal offence in any state of the Commonwealth. It is also apparent from what his friends Laura and Peter Douglas as well as his employer, his wife and mother disclose in their letters to the court, that the offender is a man of positively good character. However, as has been submitted by the Crown and acknowledged by Mr Ozen on behalf of the offender, such good character and absence of any criminal convictions is afforded less weight on sentence in matters such as this.

The offender's risk of reoffending and prospects of rehabilitation

1. Prior to the offending it is uncontroversial, and I accept, that the offender led an ordinary and law-abiding life, and it is apparent that he continues to do so. He is employed on a full-time basis as a mature age apprentice carpenter/builder. His employer speaks of the offender in very positive terms. The offender has historically involved himself extensively in volunteering and charitable works to assist the community. He has the close and I'm going support and love of his family, extended family, and friends, so much is apparent in the unchallenged letters tendered on the offender's behalf in the sentence proceedings. He has and continues to be intrinsically involved in the care and support of his three sons who he shares the care and responsibility with his wife Cherie. It is apparent from her letter that each of the boys are very close to the offender and rely upon his support and commitment.
2. I accept that upon his arrest at his home in Glenmore Park the police questioned the offender and gained access to each of his electronic devices. I am satisfied that the offender cooperated with police and offered his assistance in regard to access to and identification of his phone and/other devices. There is no evidence that police located any 'child abuse material' or other child pornography or pornographic material in possession of the offender.
3. Taking into account the offender's relatively unremarkable life up to the time of the offence, his sound employment history, his historical and continuing commitment to his children and family, and to the community more generally through his long engagement with his church and voluntary and charitable works, as well as absence of any criminal record or record of any relevance,; I am of the opinion that the offender is someone unlikely to offend. Whilst I recognise in cases such as this, which involved the offender using the internet for the purpose of making it easier for him to procure the recipient of his messages (that he believed at the relevant time to be under 16) to engage in sexual activity, that the weight of authority recognises the principle of general deterrence as a paramount consideration in sentencing. It necessarily follows, therefore, at least in a relative sense, that less weight will be afforded to what might otherwise be significant mitigating factors. That, however, is not to say that less weight is to be accorded to good character in any absolute sense. It is rather to recognise that, went 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: (R v Gajjar [2008] VSCA 268 at [27] - [28]). In the circumstances of this case having regard to the evidence in the trial that as of 7 February 2022, at the end of the conversation on that date, and certainly on 8 February 2022, when the offender simply did not respond to the AOI's messages, the offender had at the very least withdrawn from the relationship and any proposal to meet, albeit a loosely planned and general one, and therefore engage in some kind of future sexual activity. This is also a relevant and important consideration in my view as to his future prospects generally and the likelihood of his reoffending. I am of the view that the offender is someone who is unlikely to reoffend. As noted, his hitherto ordinary and law-abiding life, coupled with the nature and circumstances of the offence do not imply a risk of reoffending.

General principles - Commonwealth Sentencing

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

Child Exploitation Offences

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

Section 16A factors

1. The appropriate sentence is to be determined, at least in part, by reference to s16A Crimes Act 1914 (Cth). That section requires me to have regard to the matters set out in s16A (2) of the Act as are relevant and known to me. Whilst the matters in s16A (2) are not exhaustive or a catalogue of the only considerations that can be taken into account, they are matters to which I must have regard along with any other matter that the law would permit me to have regard to. I will have regard to the following:
2. s16A(2)(a) The nature and circumstances of the offence: 1. I have already referred to this in these remarks.
3. s16A(2)(c) The offence forms part of a course of conduct: 1. I have already referred to this earlier in these reasons. The conduct giving rise to the offence occurred on 4 days (each a single conversation involving the exchange of numerous messages), during a 6-day period.
4. s16A(2)(f) The degree to which the person has shown contrition for the offence: 1. It is uncontroversial that the offender pleaded not guilty to the charge and the matter with two other counts proceeded to trial, where he was acquitted of the 2 other counts, but found guilty by the jury of 12 of this, the third count. In the preparation of the SAR dated 30 August 2023, he maintained that he believed he was engaging in fetish or role playing with an adult.
5. s16A(2)(h) The degree to which the person has cooperated with law enforcement in the investigation of the offence: 1. As already observed in these reasons, the trial was conducted on the basis that the offender did not at the relevant time believe the recipient of the messages to be someone under the age of 16 years, and that he at no time intended by the communications to make it easier to procure the recipient to engage in sexual activity with him. As such the ambit of the factual dispute ultimately for the jury to resolve, was relatively narrow. In addition, the evidence in the trial, discloses that the offender cooperated with NSW Police in the investigation by facilitating the execution of the search warrant, and providing the police with access to the house, as well each of the applicable electronic devices seized.
6. s16A(2)(j) The deterrent effect that any sentence or order under consideration may have on the person: 1. I have earlier referred to the importance of specific deterrence and the work it must do in this sentencing task.
7. s16A(2)(ja) The deterrent effect that any sentence or order under consideration may have on other persons: 1. I have earlier referred to the importance of general deterrence in this sentencing task.
8. s16A(2)(k) The need to ensure that the person is adequately punished for the offence: 1. I am of the view that the order which I will shortly impose will provide adequate punishment.
9. s16A(2)(m) The character, antecedents, age, means and physical or mental condition of the person: 1. I have referred to these matters in considering the offender's subjective case earlier in these reasons. 2. In submissions the Crown cautioned the Court against a glib or uncritical consideration of the evidence adduced in the sentence proceedings by the offender concerning his character, means, and his mental and/or physical condition. The Crown referred to Imbornone v R [2017] NSWCCA 144 at [57], and the fact that although statements made to 3rd parties are generally admissible in sentence proceedings, considerable caution may be exercised by the court in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight (at [57]). The Crown of course is referring to the statements made by the offender to Katherine Coleman, the author of the SAR where he disclosed that accessing adult chat websites were a way for him to manage his stress and mental health. He reported that he was suffering from depression and anxiety at the time of the offence. The Crown's submission also goes to the weight, if any, the court would place upon the references provided by the offender's wife, mother, employer, and friends Laura and Peter Douglas. 3. Much of the evidence about the offender's character, and his antecedents and his age do not appear to be in any real dispute. It is apparent and a fact upon which the Crown made submissions, that the offender is someone with no relevant prior criminal record. This of course, the Crown submitted is of lesser significance in offending of this nature, as the seriousness of offences against children will often outweigh the personal circumstances of an offender, even in the case of a first offender (Western Australia v Collier [2007] WASC 250 at [42]). The evidence concerning the offender's character, came in large part in the body of the references tendered without objection or challenge in the sentence proceedings. Applicable practice notes are such that the Crown could have sought any or all of the authors of the references to be made available for cross examination by the Crown. That was not sought in the sentence proceedings. That said, the court will exercise appropriate caution in assessing the content of the various reference letters and disclosures made by the offender to the author of the SAR. Most, if not all of the observations contained in the references appear to be the personal opinions expressed by the offender's wife, mother, employer and friends. It is also apparent, and another fact unchallenged that the offender has continued to undertake private psychological counselling and treatment since 25 February 2022. The certificate of attendance tendered in the sentence proceedings discloses that as at 17 August 2023 the offender had attended upon 22 such psychological counselling sessions with his treating psychologist.
10. s16A(2)(n) and s16A(2AAA) The prospect of rehabilitation of the person: 1. I have considered the offender's prospects of rehabilitation generally, and more specifically his likelihood of reoffending or not reoffending in the future, earlier in these reasons. Section 16A (2) (2AAA) requires a court when determining the sentence to be passed, or order to be made, in respect of any person for a Commonwealth child sex offence (as is the case here), in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court: 1. (a) when making an order - to impose any conditions about rehabilitation or treatment options. 2. (b) in determining the length of any sentence or non-parole period - to include sufficient time for the person to undertake a rehabilitation program. 1. As previously observed in these reasons the author of the SAR tendered in the sentence proceedings, Katherine Coleman noted of the offender that he is willing and able to undertake intervention. That intervention, in the event the offender was to be supervised by community corrections, will include the offender being referred to a Community Corrections Psychologist for further assessments to be undertaken, monitoring and verifying the offenders engagement with his private psychologist, monitoring his engagement his employer, monitoring his relationship stability through third-party checks, and supervision to focus generally on goal setting and managing high risk situations/environments. 2. In submissions, the Crown asserted that the objective of rehabilitation does not displace the requirement that the sentence must be of a "severity appropriate in all the circumstances of the offence" pursuant to s 16A (1) of the Cth Crimes Act. That is, while the requirements of s 16A (2AAA) must be considered, the objective of rehabilitation should not supplant other very important sentencing considerations such as general and specific deterrence, adequate punishment, and denunciation which the Crown submits play a central role in sentencing for offences of this kind. The principal purpose of rehabilitation, as I understand the Crown submits in this context, is to protect the community by ensuring that offenders are required to undertake treatment in custody, or upon release from custody to prevent reoffending. The Crown also submitted in the context of a consideration of the offender's prospects of rehabilitation and likelihood or otherwise of his re-offending, that the court would conclude that the commission of the offence was motivated by sexual gratification. 3. The offender himself denied to the author of the SAR that he had any sexual attraction to children and stated that he would engage in conversation with many people, with an open age range from 18 to 60 years old. He reported he would engage in fetish conversations for the purpose of feeling sexually attractive to other women. This was at a time of substantial matrimonial disharmony in his own marriage. It is also reported in the SAR that the offender understands the impact that child sex offending has on the community and stated that after engaging in counselling he believes police did the right thing in addressing the offence with him. It is also apparent from the content of the SAR that its author Katherine Coleman initially assessed the offender as a low risk of re-offending, but this was adjusted to medium risk upon receipt of the Static-99 assessment prepared by York Hong CS Psychologist. The precepts consultation undertaken by York Hong assess the offenders' risk of sexual reoffending with the Static 99 (2016 version), and actuarial risk assessment scale to estimate an individual's risk of sexual reoffending. The assessment placed the offender in the "average risk" range relative to other male sex offenders. The result was based on his age, and the AOI being unrelated and a stranger. The consultation was based entirely on a file review, there were no face-to-face interviews between the psychologist and the offender. The limitation of this consultation is that dynamic (changeable) risk factors that are potentially relevant to evaluating risk of sexual reoffending were not assessed. Based upon the assessment, however, the offender would be ineligible for "sex offender programs" if he were to receive a custodial sentence, although he may be eligible for the "real understanding of self-help program" to improve his self-regulation. The CS psychologist noted that in the event the offender received a community-based sentence, he should be referred to Corrective Services NSW- Community Corrections psychology for further assessment consistent with the recommendations of Katherine Coleman the community corrections officer in the SAR dated 30 August 2023. 4. I have considered the submissions of Ms Climo for the Crown on this issue, and I've also noted the limited discussion of the provision by the CCA in the decision of Dark v The Queen [2022] NSWCCA 52. As previously observed, notwithstanding the offender's plea of not guilty and denial of the offence, having regard to the support he continues to receive from family and his wife Cherie, and from his employer Alan Bain, his history of extensive engagement with the community through his involvement in the Church of which he was a member and his voluntary work, as well as his history of full employment, his lack of any criminal offences in his past, as well as his willingness to undertake supervision and intervention as may be directed in the future, in my opinion his risk of reoffending overall is relatively low. In that regard, I have considered risk assessments expressed in the sentencing assessment report dated 30 August 2023 which were initially said to be low, but raised to medium as he was assessed as an average risk of re-offending arising from the Static-99 assessment (2016 version).
11. s16A(2)(p) The probable effect that any sentence or order under consideration would have on any of the person's family or dependents: 1. The letter from the offender's wife, Cherie Jones discloses what she describes as the offenders "indispensable role in our lives". She is referring to the involvement of the offender as her husband and the father of their three sons. She describes his dedication to the family as unwavering in respect to their happiness, security, and well-being. He is a doting and engaged dad, commencing before the birth of the children. She describes him as being present for every milestone, his passion for the family having shaped many family traditions. 2. Whilst the impact a sentence or order may have upon the offender's family was touched upon in the submissions, it was not asserted that the probable effect of a custodial penalty on the offender's children would be relevantly "exceptional", as required by the common law. I accept that submission. However, unlike the common law position as expressed in Togias I am entitled to have regard to the probable effect a sentence or order under consideration would have on the offender's family having regard to the content of the evidentiary material tendered on behalf of the offender in the sentence proceedings. This is a factor I am satisfied I am entitled to have some regard to in the process of instinctive synthesis in which I am required to engage (Totaan v R [2022] NSWCCA 75 at [77] and following).

The need for consistency

1. The Crown provided me with a number of cases that they submitted would inform the sentence to be imposed here. I have considered those cases in light of the need for courts to seek to achieve consistency when sentencing for Commonwealth offences and the need to have regard to sentencing practices throughout Australia: R v Pham (2015) 256 CLR 550 at [18]. The consistency that is sought to be achieved is in the application of relevant legal principles rather than the numerical equivalence of sentences and I have sought to give effect to that in this matter. The cases provided by the Crown were Meadows v The Queen [2017] VSCA 290, and R v Nahlous [2013] NSWCCA 90. Both involved pleas of guilty.
2. Meadows involved two offences. The first being an offence contrary to s 474.27(1) Criminal Code Act (Cth), which involved four online conversations on "Teenchat" and "Skype" between the offender and undercover police. When the offender's house was searched by police, two child exploitation images were located on his computer, giving rise to the second offence of knowingly possess child pornography contrary to s 70(1) Crimes Act (Vic). The offender was 38 at the time of the offending and 40 at the time of sentence. The offender had a prior criminal conviction for an offence of obtaining property by deception, for which he received a fine of $1000. It was neither submitted on sentence nor found that the offender's mild brain injury resulting from a fall was a material contributing factor in the offending.
3. Nahlous involved the offender pleading guilty to a single count of using a carriage service with the intention of grooming the recipient under 16 years of age for sexual activity, contrary to s 474.27(1) Criminal Code Act (Cth), as well as five matters on a Cth schedule under s 16BA of the Crimes Act (Cth) of using a carriage service to send indecent material to a person less than 16 years old. The maximum penalty at the time for the s 474.27(1) offence was 12 years imprisonment. That was the same in Meadows. The maximum penalty for the schedule offence at the time was 7 years imprisonment. In Nahlous the victim was a 14-year-old girl who had invited the offender to be her Facebook friend. She lived across the road from the offender, who was aged 31 at the time. As was the case in Meadows the Nahlous was dealt with on the basis of a plea of guilty.
4. In Meadows the offender was sentenced at first instance to 12 months imprisonment for the s 474.27(1) grooming offence to be released after serving 3 months upon entering a RRO for 9 months. In respect to the possess child pornography offence he was sentenced to a CCO for a period of 15 months. The offender's appeal against sentence was dismissed by the Victorian Court of Appeal. In Nahlous the offender was sentenced to 18 months imprisonment (taking the 5 matters on the s 16BA schedule into account) for the grooming offence contrary to s 474.27(1), to be released forthwith on a 3-year RRO to be of good behaviour and to be supervised by Probation and Parole. The DPP appeal against the inadequacy of the sentence was dismissed by the NSWCCA, in the judgment of Adamson J with whom Hoeben CJ at CL and Davies J agreed.
5. As observed the High Court in Pham held that a court in sentencing for a Commonwealth offence must have regard to sentences that have been imposed in other states and territories. The court held that reference to comparable cases serves two purposes. Firstly, they provide guidance as to the identification and application of relevant sentencing principles. Second, they may yield discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence. In respect to the second purpose, comparative sentences are to be used as yardsticks that may be used to illustrate (although not define), the possible range of sentences available. Current sentencing practices are only one factor, and not the controlling factor, in the fixing of a just sentence.

The Sentence

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

The Presumption of Actual Imprisonment - Section 20 (1)(b)(ii)

1. In her written submissions the Crown referred to s 20(1)(b)(ii) of the Crimes Act (Cth). The Crown submitted that if a court determines to sentence a "Commonwealth child sex offender" to imprisonment, but release them on an RRO, there is a presumption that they will serve some period of actual imprisonment unless there are exceptional circumstances that justify the offender being released immediately on a RRO.
2. In both written and oral submissions Senior counsel for the offender conceded that the "section 17A" threshold has been crossed and that no other sentence, but a term of imprisonment is appropriate. However, as observed earlier Counsel submitted, given the circumstance of the offending and offender, the court should not exceed to the submission of the Crown that such sentence needs to be by way of 'actual imprisonment'. Instead, it was submitted that the court should impose a term of imprisonment but immediately release the offender pursuant to s 20 (1)(b) of the Crimes Act (Cth). Senior counsel submitted the court should reject the Crown's submission that the offender needs to establish "exceptional circumstances". The offender has spent one day in custody, and for that reason, the offender does not need to show "exceptional circumstances"-that is, one day he has spent in custody is to be taken into account as the "actual imprisonment" as required by s 20 (1)(b)(ii). In oral submissions made at the sentence hearing, Ms Climo for the Crown conceded this submission of senior counsel.
3. Section 20 (1)(b) relevantly states: "(1) where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit: (b) sentenced the person to imprisonment in respect of the offence or each offence but direct, by order, that person be released, upon giving security of the kind referred to in paragraph (a): (ii) if at least one of the offences is a Commonwealth child sex offences and the court is not satisfied that there are exceptional circumstances-after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19 AF (1); or (iii) if at least one of the offences is a Commonwealth child sex offences and the court is satisfied that there are exceptional circumstances-immediately.
4. Whilst the Crown conceded that in the circumstances of this case the offender is not required to establish exceptional circumstances in accord with s 20 (1)(b)(ii) of the Crimes Act, section 16A (1) requires that a court must impose a sentence or make in order that is of a severity appropriate in all the circumstances of the offence. Further, s 16A (2)(k) requires that a court must take into account "the need to ensure that the person is adequately punish for the offence". The Crown asserted that in this case any sentence of less than some period of actual imprisonment would not be of an appropriate severity and would be an inadequate punishment for the offending.
5. I must say that I have some concerns about the irrelevance of a consideration of s 20 (1)(b)(ii) on sentence, as has been submitted on behalf of the offender and conceded by the Crown before me. Be that as it may, considering that this is a 'Commonwealth Child Sex Offence' as defined, and notwithstanding the concession made by the Crown, because the thrust of the submissions from both the Crown and the offender have been focused upon s 19AC (1) and the timing of the release of the offender on a RRO, I consider it appropriate to consider the presence or otherwise of 'exceptional circumstances' in the case.

Exceptional circumstances

1. What constitutes 'exceptional circumstances' for the purposes of s 20(1)(b)(ii) is not defined. The Crown did not refer me to any particular case or cases which might provide some assistance in terms of considering what may amount to exceptional circumstances. However, in the case of R v Tootell ex parte AG [2012] QCA 273 at [18], the court stated: "We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."
2. I have also considered the decision in R v GAW [2015] QCA 166, where the court quoted R v Quick; ex parte AG (Qld) [2006] QCA 477: "What emerges, then, is there is no one clear prescription for what circumstances are capable of being regarded as exceptional. Consideration must be given not only to the unusualness of individual factors but to their weight; and factors which taken alone may not be out of the ordinary may in combination constitute an exceptional case… The court, in the sentencing process, must consider whether there are exceptional circumstances which, in the light of all the other aspects of the case including those described in s 9(6), warrant the imposition of a sentence which does not involve actual custody. The mitigating circumstances must be considered against a background of matters such as the egregiousness of the offending and the need for deterrence in determining whether they can be said to amount to exceptional circumstances of that kind."
3. I have also had opportunity to consider the decision of Judge Berman in R v Pederson [2021] NSWDC 535 to which I have been referred. That decision involved a Commonwealth child sex offence of using a carriage service to groom a child under 16 for sexual activity, as is the case here. In Pederson there was a plea of guilty and an offence on a s 16BA schedule under the Crimes Act (Cth), which was an offence of using a carriage service to transmit an indecent communication to another person under the age of 16. I note in Pederson his Honour found that this offence was engaged in for sexual gratification. His Honour found exceptional circumstances when sentencing the offender in that case. He considered that a combination of factors led to his finding of exceptional circumstances. Those factors appear to be that the offender was 61 years of age and a man of good character, he pleaded guilty at the earliest opportunity, he was remorseful, and had good prospects of rehabilitation. His Honour also considered the consequences that would befall the offender's family if he was incarcerated, the impact of the Covid 19 pandemic upon offenders sentenced to full-time custody, what his Honour considered were the unusual circumstances of the offence, and that the offender had not sought to misrepresent who he was to the child and there was no repeated/repetitious contact between the offender and the person's to whom he was communicating. Relevantly, for the purposes of my consideration is that the offender in Pederson initiated at least one of the conversations giving rise to the offences on a 'teen chat room', whereas in the present case the initial communication initiated by the offender occurred on Chat IW which the evidence disclosed was an over 18 chat site for adults, to engage in sexually suggestive and provocative conversation and role play.
4. I have also reviewed the decision of Judge Abadee in R v Dregmans [2022] NSWDC 55 where his Honour found 'exceptional circumstances' when sentencing the offender for a single offence of possess or control child abuse material contrary to s 474.22A Cth Criminal Code. From a reading of Dregmans it appears that the Crown did not assert against a finding of "exceptional circumstances". Be that as it may His Honour noted that the offending is at the low end of the scale of seriousness, the offender was a person of good character with good prospects of rehabilitation and was a low risk of reoffending and had suffered extra curial punishment through media coverage of the proceedings. Those features in combination with sufficient to satisfy his Honour that exceptional circumstances were established.
5. In both Pederson and Dregmans the offender pleaded guilty. The maximum penalty in each case was 15 years imprisonment. As noted, Pederson involved a second offence on the s 16BA schedule. The offending in Pederson was of a similar objective seriousness to the present offending, if not at times including more explicit sexual language.
6. In R v Jones [2022] SASCA 105 at [45] the court stated: "Some uncommon features may militate against a finding of exceptional circumstances rather than support it. It is not a matter of a sentencing Court sifting through the personal circumstances of an offender to find something that perhaps can be described as uncommon to support a finding of exceptional circumstances. That is not to say that the personal circumstances of an offender can never tip the scales in favour that exceptional circumstances exist. It depends. But the purpose of the section and the general sentencing considerations including general deterrence, personal deterrence and protection of the community always loom large. A finding of exceptional circumstances must be based on an assessment of all of the usual sentencing criteria".
7. In my opinion, the word "exceptional", in the statutory context means out of the ordinary course or unusual or special, or uncommon Circumstances do not have to be unique, unprecedented, or very rare, but cannot be circumstances that are regularly or routinely or normally encountered to meet the requirement of the provision. A combination of factors, in my opinion, can amount to exceptional circumstances. It follows that finding exceptional circumstances is a test that ought not to be set too high, and it can be made out by either a single circumstance or a combination of matters.
8. Here, as has been submitted to me by senior counsel for the offender, the offender is not required to establish exceptional circumstances as obliged by s 20 (1)(b)(ii) because he has already spent a period of time in custody, I reiterate, a submission the validity of was conceded by the Crown; nonetheless I am satisfied, the combination of the following factors amounts to exceptional circumstances within the meaning of the provision, accepting that no single factor of itself may be exceptional. The relatively low level of objective seriousness of the offence, the offenders lesser moral culpability as evidenced by his withdrawing from the conversation and any anticipated meeting by 7 February 2022 by failing to respond to the AOI, and certainly by 8 February 2022, when there were no responses at all, his cooperation with NSW police at the time of his arrest (past assistance), by providing access to his phone and electronic devices, as well as access to his home, and confining the issues at the trial to the elements of his belief and intention, his lack of any prior criminal offences, his historical involvement in his Church group, and long history of volunteer work for the community assisting the community, the impact any custodial sentence would have upon his family, particularly his three children, his age and good future prospects and his being assessed in the "average risk" range for risk of sexual reoffending which render the offender ineligible for sex offender programs offered by Corrective Services NSW (pre-sentence consultation report of York Hong) in the event a sentence of incarceration was imposed, and the fact that offender has spent a day in custody following his arrest in respect to the offence whilst awaiting trial.

Conclusion and orders

1. Luke Christopher Jones you are convicted of the offence for 'that you between about 2 February 2022 and about 7 February 2022 at Glenmore Park and elsewhere in NSW, being 37 years of age, did use a carriage service to transmit communications to another person, the recipient, being someone you believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with you.' That offence being contrary to s 474.27(1) Criminal Code Act 1995 (Cth).
2. Upon conviction: 1. I impose a sentence of 1 year and 6 months imprisonment to commence on 5 December 2023. In imposing the sentence, I have included the day you spent in custody following your arrest on 10 February 2022, hence I backdated the sentence to commence from yesterday. 2. You are to be released immediately upon entering into a recognizance pursuant to s20 (1)(b) Crimes Act 1914 (Cth) in the amount of $2,000 without security. The term of the RRO is for a period of 3 years. You are to comply with the following conditions: 1. You are to be of good behaviour. 2. You are to be supervised by a Probation Officer appointed in accordance with the order and obey all reasonable directions of the Probation Officer or delegate. 3. You are not to travel interstate or overseas without the written permission of the Probation Officer: and 4. You are to undertake such treatment or rehabilitation programs that the Probation Officer reasonably directs. 5. You are to report to the Penrith office of Community Corrections within 7 days.

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