plaintiff. McKeay was convicted on both offences, sentenced to 2 years and 3 months’ imprisonment for the carriage-service offence (backdated to 21 June 2019, with release on recognizance on 20 September 2020...
Key principles
The sentence for the Commonwealth procuring offence was determined by assessing the particular offence circumstances and the offender's subjective circumstances together, with...
The absence of an actual child victim because police used an assumed identity did not mitigate the objective seriousness of the Commonwealth offence. The court adopted the...
For the possession offence, the court assessed the objective seriousness as low and, applying the NSW sentencing provisions it identified, convicted the offender but imposed no...
Issues before the court
How objectively serious was the Commonwealth offence of using a carriage service to procure a person under 16 for sexual activity?
What sentence was appropriate for the Commonwealth offence, including the effect of the guilty plea and other sentencing considerations?
What penalty was appropriate for possession of child abuse material?
Plain English Summary
McKeay received a prison sentence for online communications in which he sought sexual activity with someone he believed was 14, although the person was a police officer using an assumed identity. The judge assessed that offence as just below the middle of the seriousness range. An early guilty plea reduced the sentence by 25%, producing a sentence of 2 years and 3 months, backdated to the day he entered custody. The judge separately convicted him of possessing seven child abuse images, assessed that offence as low in seriousness, and imposed no further penalty for it. The judgment balances deterrence and denunciation against the offender's personal circumstances, remorse, lack of prior convictions and assessed rehabilitation prospects.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,418 words · generated 28/09/2026
What happened
R v McKeay [2020] NSWDC 408 is a sentencing decision of the District Court of New South Wales, delivered by Weinstein SC DCJ on 31 July 2020. The offender, Jamie McKeay, pleaded guilty to two offences: using a carriage service to procure a person under 16 for sexual activity, contrary to s 474.26(1) of the Criminal Code (Cth), and possessing child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW).
Cited legislation
2 cited instruments linked from this judgment.
The first offence arose from an advertisement posted on Locanto on 4 June 2019. It offered $1,000 to an Asian girl who was in her teens. Police investigators responded using the assumed online identity of a 14-year-old female. The communications moved from Locanto to Skype and continued between 4 and 17 June. They included explicit requests and discussions about sexual acts, payment, the proposed recipient's age and arrangements for a meeting. McKeay suggested meeting at his home or in Cabramatta, asked whether the proposed recipient could miss school, and discussed collecting her or meeting at a station.
When interviewed after his arrest, McKeay said he thought the account might be fake and that he had discussed sexual matters to scare the person off. He also said that he kept communicating to see how far it would go and had no intention of meeting. The sentence reasons assessed the offence on the agreed facts, which included the communications and proposed meeting arrangements.
Police searched McKeay's residence and seized electronic devices. Seven images were found on the “Deep cool” computer tower. The agreed facts described images of a pre-pubescent female wearing a bra, underwear and a fishnet shirt, with the images progressing through removal of the fishnet top and focusing on the child's body. The facts state there was no nudity. The judgment describes the images as ISB2 in the agreed facts, but later records the defence submission as referring to ISB1. That difference appears in the source and is not reconciled in the reasons.
McKeay was born in 1987, had a 14-year-old daughter, was a New Zealand citizen, and had no prior criminal history. He had been in custody since 21 June 2019. A psychologist described a history including isolation, anxiety symptoms, earlier self-harming behaviour and reported diagnoses, but considered him at low risk of reoffending relative to other offenders. The psychologist proposed treatment. The sentencing judge accepted the recorded remorse and considered rehabilitation prospects reasonable, particularly if McKeay engaged with the treatment plan.
For the Commonwealth offence, the court imposed 2 years and 3 months' imprisonment, backdated to 21 June 2019. The court applied a 25% discount for the guilty plea, which had been entered at the earliest opportunity. McKeay was to be released on 20 September 2020 on a $1,000 recognizance without surety, with a good-behaviour condition until 20 September 2021. For the NSW offence, the court entered a conviction but imposed no further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The computer tower was forfeited to the Commonwealth.
Why the court decided this way
The court treated the two offences separately, assessing the conduct and relevant sentencing considerations for each. For the Commonwealth offence, the judge accepted the Crown's identified seriousness factors. They included McKeay's persistence over the two-week period, knowledge from the outset that the online contact claimed to be 14, his initiation of the conduct through an advertisement, his offer of $1,000, and the explicit communications directed towards sexual activity. The judge also accepted that the communications showed an intention to procure the proposed recipient for his sexual gratification and involved an age-related power imbalance.
The defence relied on features said to moderate the seriousness: the relatively short period, the absence of an actual child victim, the proposed recipient's age being relatively close to 16, and the communications not being concealed. The judge took those matters into account but did not treat the imposter victim as mitigating. The judgment applied the proposition in DPP (Cth) v Singh [2017] VSCA 146 at [44]: an actual victim may aggravate offending, but absence of a victim does not mitigate it. The judge's overall assessment was that the Commonwealth offence sat “somewhere just below the middle of the range of objective seriousness”.
The judge then considered the offender's subjective circumstances. General deterrence and denunciation were given substantial importance. The judgment explains that courts must mark the seriousness of grooming and procuring conduct, particularly as the internet can allow offenders to act anonymously. The judge cited R v De Leeuw [2015] NSWCCA 183 and DPP (Cth) v Boyle (A Pseudonym) [2016] VSCA 269 in support of that sentencing context. Personal deterrence had a role, but the judge described it as limited, having regard to the psychologist's low-risk assessment.
Other relevant matters included McKeay's early guilty pleas, accepted remorse, lack of criminal history, personal history and rehabilitation prospects. The judge applied a 25% plea discount and stated that, without it, the sentence would have been three years. The resulting head sentence was 2 years and 3 months. It was backdated to the date he was taken into custody.
For the NSW possession offence, the judge considered the number and nature of the images, their description, the maximum penalty and the offender's circumstances. The court assessed the objective seriousness as low. The judge concluded that the statutory threshold for imposing a sentence of imprisonment had not been crossed and made an order under s 10A. In practical terms, McKeay was convicted but received no further penalty for that count. That result was not disputed by counsel, according to the judgment.
Before and after state of the law
This decision does not purport to change the law. It is a first-instance sentencing judgment applying existing sentencing statutes and authorities to the facts before the court. The reasons do not identify a prior rule that was displaced or announce a new test. Its main value is as an example of how one sentencing judge assessed this combination of online procuring conduct, no actual child victim, possession of a small number of images, an early plea and personal mitigation.
For the Commonwealth count, the judge referred to Part 1B of the Crimes Act 1914 (Cth), especially s 16A, and to principles from Markarian v The Queen [2005] HCA 25, Power v R [1974] 131 CLR 623 and Hili v the Queen; Jones v the Queen [2010] HCA 45. The judgment states that the maximum penalty was a guidepost and that the sentence had to be appropriate in all the circumstances. It also explains that, for Commonwealth offences, the court was required to consider the applicable statutory framework when determining sentence and any minimum term. The judgment noted that a non-parole period must be fixed where imprisonment exceeds three years, but the sentence imposed here was shorter.
For the NSW count, the court referred to the Crimes (Sentencing Procedure) Act 1999 (NSW), including the purposes of sentencing in s 3A and the order available under s 10A. It also discussed the competing and overlapping sentencing purposes described in Muldrock v The Queen (2011) 244 CLR 120. The judgment's approach was to weigh those statutory purposes in the individual circumstances, rather than to treat one purpose as invariably decisive.
The decision therefore illustrates, rather than alters, the relevant sentencing framework. It records the judge's assessment on this record; it should not be read as establishing a fixed sentencing tariff for online procurement offences or for possession of seven images. The judgment itself stresses the importance of the facts and circumstances and refers to comparative sentencing decisions as aids to consistency.
Key passages with plain-English translation
The judgment's assessment that the Commonwealth offending was “somewhere just below the middle of the range of objective seriousness” is its central characterisation of that count. In plain English, the judge regarded the conduct as substantial but did not place it at the most serious end of the spectrum. The assessment took account of both aggravating features, especially persistence, explicit communications and the payment offer, and matters advanced by the defence.
The court stated that “the absence of a victim will not mitigate” the offence, adopting the proposition from DPP (Cth) v Singh [2017] VSCA 146 at [44]. In plain English, because the online contact was actually a police officer, McKeay could not receive a reduction in seriousness merely because a child was not harmed in this operation. The judge distinguished that from the possibility that the presence of an actual victim could aggravate offending.
On the possession offence, the judge said that its objective seriousness “sits at the low end of the range”. The court considered the number and description of the images, including the absence of nudity as recorded in the agreed facts, together with the competing submissions. This seriousness assessment was part of the court's reasoning for making a s 10A order rather than imposing an additional penalty.
The judge said, “I assign a discount of 25%,” referring to the guilty pleas entered at the earliest opportunity. The reasons also state that the sentence would have been three years without that discount. The final sentence was 2 years and 3 months. This gives a transparent account of the plea's sentencing effect in this case, but it does not establish that the same percentage must apply in another case.
The judge described general deterrence and denunciation as highly important, while also finding that personal deterrence had “some, albeit limited, role to play”. In plain English, the court considered the need to deter others and condemn the conduct, but gave less weight to the need to deter this particular offender, in light of the low-risk assessment in the psychological report.
What fact patterns trigger this precedent
The case is most directly relevant as a sentencing example where an adult uses online platforms to communicate sexually with a person presented as under 16, offers money or another reward, discusses sexual activity, and pursues a meeting. Its facts included an advertisement specifically seeking a teen girl, sustained communications, explicit sexual content and discussions about payment and meeting. The judgment shows that the absence of an actual child victim does not, by itself, reduce objective seriousness.
The case may also be relevant where a sentencing court is considering how to weigh early guilty pleas, no prior criminal history, remorse, psychological evidence and rehabilitation prospects against deterrence and denunciation in a child-sexual-exploitation context. The judge considered the psychologist's assessment of low reoffending risk but gave personal deterrence a limited rather than determinative role.
For possession offences, the decision provides an example involving seven images located on one computer device, described as depictions of a pre-pubescent child wearing clothing, with no nudity. The judge assessed that count at the low end of the range and imposed no further penalty. The result should be read against those stated facts and the statutory framework applied, not as a general outcome for possession of any particular number or type of image.
The facts also contain a classification discrepancy. The agreed facts refer to ISB2, whereas the recorded defence submission refers to ISB1. Because the judgment does not resolve that discrepancy, the case is a less secure comparison where the precise classification of material is central. Other relevant differences may include the number, content, source, distribution, or use of material, and the persistence and nature of the online communications. Those matters would require comparison with the actual facts and authorities relevant to another case.
How later courts have treated it
The materials provided contain no later judgments discussing R v McKeay. It is therefore not possible from this source to say whether later courts have followed, distinguished, applied or criticised it. The decision itself cites a number of earlier authorities, but those citations show the authorities on which Weinstein SC DCJ relied, not how subsequent courts treated McKeay.
The judgment refers to Tector v The Queen and R v Asplund in relation to assessing the objective gravity of the Commonwealth offence. It refers to Minehan v R, R v Hutchinson and R v Porte in relation to factors relevant to possession of child pornography. It applies the proposition from DPP (Cth) v Singh that absence of an actual victim does not mitigate the offence. It also refers to R v De Leeuw and DPP (Cth) v Boyle for the importance of general deterrence and denunciation in online grooming and procuring cases.
The cited cases are part of the reasoning in McKeay; they do not establish a later treatment history for McKeay itself. A current analysis of its precedential use would require later judgments or a legal database search, neither of which is included in the material supplied here.
Still-open questions
Several limits are apparent from the judgment. First, the supplied text does not provide consistent paragraph numbering for the body of the reasons. The references in this analysis therefore identify the judgment's subject matter and cited case paragraph references rather than inventing paragraph numbers for McKeay.
Second, the classification of the seven images is inconsistent in the source. The agreed facts call them ISB2, while the defence submission is recorded as calling them ISB1. The judge's disposition does not explain or resolve that difference. The classification and the significance of the content may matter when comparing this sentence with other possession cases.
Third, the judgment does not set out a general sentencing range for either offence. Its assessment of the Commonwealth offence as just below the middle of the objective-seriousness range and the NSW offence as low in seriousness is specific to the agreed facts and submissions. The decision does not establish that a similar sentence follows whenever the facts share some broad characteristics.
Fourth, the reasons do not decide how much weight the psychological report would receive if its conclusions were contested. The judge noted that the report was untested and that McKeay did not give evidence, while also referring to objective evidence of self-harm and corroboration from his mother. The judge's observations about possible undiagnosed mental health issues were expressly not findings.
Finally, the judgment does not determine how later courts have treated its reasoning, nor does it address factual situations involving an actual child victim, distribution of material, a larger collection, different image content, or different evidence of risk and rehabilitation. Those matters remain outside the decision as supplied.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Judgment (18 paragraphs)
[1]
Judgment
The offender Jamie McKeay, born in 1987, is before the court for sentence for the offence of use carriage service to procure person under 16 years for sexual activity contrary to s 474.26(1) of the Criminal Code (Cth) for which the maximum penalty is 15 years imprisonment, and possess child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW) for which the maximum penalty is 10 years imprisonment. There is no standard non-parole period for either offence.
The agreed facts are as follows:
Sequence 1: Use a carriage service to procure person under 16 years for sexual activity
1. On 4 June 2019, NSW Police located an advertisement on the website "Locanto" which allows users to post classified advertisements.
2. The advertisement was posted by an individual located in Cabramatta who used the username "Icy56" and stated:
"reward for teen girl
looking to reward an asian girl for some fun. reward will be $1000 but you must be in your teens"
1. Shortly after locating the advertisement, investigators from the NSW Police Child Exploitation Internet Unit (CEIU) began communicating with the accused utilising the assumed online identity of a 14 year old female (CEIU30).
2. The following conversation took place on Locanto:
CEIU30 hey im thai n im 14 my names Kim :) $1000 would be awesome!!
ACCUSED Hi there, what things are you willing to do?
CEIU30 What wud u want me to do?
ACCUSED Bj, sex and let me cum on your face?
CEIU30 Ok but I haven't done any of that b4
ACCUSED I can teach you if you are willing
CEIU30 K if u want to
ACCUSED What do you look like
CEIU30 Im skinny n have long black hair n im thai
ACCUSED Got a photo?
CEIU30 Im on my mums comp right now n don't hav 1 on here
ACCUSED Oh ok, how do you want to meet up then?
CEIU30 Umm dunno do u hav skype? We can msg on there
1. The accused then sent CEIU30 an invitation to communicate with him via Skype.
2. Between 4 June 2019 and 17 June 2019, the accused and CEIU30 communicated via the messaging system on Skype. Excerpts from the chats are as follows:
4 June 2019
CEIU30 So were u serious about the 1000?
ACCUSED Depends on what you are willing to do for it
CEIU30 What wud u want me to do?
ACUSED Hmmm
ACCUSED Start off with sucking my cock
…
ACCUSED Don't worry I'll lick you to
…
CEIU30 What else do u want me to do?
ACCUSED How you feel about sex
…
ACCUSED I've never had a virgin before
…
ACCUSED You wont mind doing that with an older guy?
11 June 2019
ACCUSED When would you want to meet up
CEIU30 Where would you wanna go
ACCUSED My place?
ACCUSED Maybe
CEIU30 Where u live again
CEIU30 Id be heaps nervous
ACCUSED Cabramatta
…
ACCUSED You will be ok with learning to suck on my cock?
…
ACCUSED What about sex?
CEIU30 Would that hurt
ACCUSED Maybe a little since its your first time
ACCUSED But it usually feels good
…
ACCUSED But I'll start with licking you there and using my finger
ACCUSED I wont cum inside
CEIU30 Wud u wanna do that at ur place
ACCUSED Bj
ACCUSED Sex
ACCUSED And I'll either cum in your mouth or face
…
CEIU30 When would you wanna meet up
ACCUSED When would be best
ACCUSED During school hours?
CEIU30 Yeah I could probably just miss school
ACCUSED I'll just need to take a day off work
ACCUSED I'll let you know when I do
ACCUSED Hey what made you want to do this?
ACCUSED Didn't think girls like you were on that site
CEIU30 Idk a friend told me about it then I saw your ad and I could use some money to go shopping
CEIU30 Then we started chatting and u seem really nice
ACCUSED Oh ok
ACCUSED Happy to of met you
CEIU30 J
ACCUSED Do you have your boobs yet?
12 June 2019
ACCUSED When did you want to meet up
CEIU30 Wish I culd b4 the weekend…but I cant
ACCUSED Why is that
ACCUSED I kinda cant to, work would be to busy
CEIU30 Bummer I rly need the cash
ACCUSED Why cant you meet before then?
CEIU30 Jst cant get away from mu and skool
ACCUSED Oh
ACCUSED When would you think you could
CEIU30 Maybe nxt week?
ACCUSED Yeah that would be fine
CEIU30 Cool
ACCUSED We'll work on what day
…
ACCUSED Hey when we meet will you be in uniform?
…
ACCUSED Just use your tongue lots and you'll be fine
CEIU30 Like how?
ACCUSED Like start off by licking the tip and down to the balls
CEIU30 What else?
ACCUSED When you take it into your mother cover your bottom teeth with your tongue
CEIU30 Ok
CEIU30 Will it taste gross?
ACCUSED I keep mine clean
CEIU30 Cool
ACCUSED I'll shower before we do anything
CEIU30 Sounds good
CEIU30 Wuld we do anything else
ACCUSED Its big though
ACCUSED I'll lick your pussy to
ACCUSED And suck on your boobs
ACCUSED Have sex if your comfortable with it
…
ACCUSED I'll want to cum on your face to if that's ok
CEIU30 That's ok I guess
ACCUSED Not happy with that?
CEIU30 I dunno
CEIU30 Sounds a bit gross
ACCUSED It's a little messy is all
CEIU30 Ok
ACCUSED Maybe you'll like it
13 June 2019
CEIU30 Did u really wanna meet up or were u just joking
ACCUSED I do want to meet
ACCUSED It may sound weird but I have had a fantasy about a girl like you
CEIU30 Like what do you mean
ACCUSED A schoolgirl
CEIU30 Like 14 like me
ACCUSED Um yea
…
ACCUSED How do you feel about the age difference
…
CEIU30 Send me a selfie J
ACCUSED The accused sent CEIU30 a picture of himself.
…
ACCUSED It is pretty big though if that is ok
CEIU30 Omg rly?
CEIU30 How big?
ACCUSED 8 inches when hard
CEIU30 Is 8 inches big I dont know inches lol
CEIU30 Ive neva seen 1 close up b4
ACCUSED Between 17 to 20cm long
…
ACCUSED You don't have to put the whole thing inside, just as much as you can
CEIU30 Ok I don't think that wuld fit
ACCUSED Up to you if you want to try
ACCUSED Which part wont it fit in?
CEIU30 If it doesn't fit will I still get money
ACCUSED I'll think about it
…
CEIU30 Do you rly have that much money
ACCUSED I do
…
ACCUSED The accused then sent CEIU30 a picture of his bank account balances as proof that he could pay her $1000 if they met up.
17 June 2019
CEIU30 when do u think well meet
ACCUSED Was going to do today
ACCUSED But didn't hear from you
CEIU30 Whaty if I skip next Monday
ACCUSED Sure
ACCUSED That would be ok
ACCUSED What do you want to do
CEIU30 Cool
CEIU30 Did you wanna do that stuff u spoke about
ACCUSED Sure
ACCUSED If its ok with you
CEIU30 Where do u want me to meet u
ACCUSED Want me to pick you up
ACCUSED Or meet in Cabramatta
CEIU30 Don't really know Cabramatta if you can meet me
ACCUSED Yeah I will
CEIU30 So meet at the station
…
ACCUSED There anything you want to try with me
CEIU30 Wanna meet at like 1030 or something
ACCUSED Alright
CEIU30 Idk what did u want for the 1000
ACCUSED Would you suck on my cock and have sex
ACCUSED Let me cum on you a couple of times
…
ACCUSED You don't mind having someone touch your ass to
…
ACCUSED I'll be gentle with you
CEIU30 Thnx
ACCUSED Anywhere you want to be touched?
CEIU30 Where ever you think would feel good for me
ACCUSED Ok
ACCUSED I'll probably be touching your boobs, ass and pussy
CEIU30 That sounds ok
ACCUSED Want me to lick those places to
…
ACCUSED Btw if I cum in your mouth do you mind swallowing it
CEIU30 Would you want me to
ACCUSED Be sexy if you could
Search Warrant and Arrest
1. On 21 June 2019, CEIU investigators attended the work address of the accused and spoke to him. He indicated that he had thought he had been communicating with a fake account. The accused was then escorted by CEIU investigators from his workplace to Bankstown Police Station.
2. The accused agreed to participate in an electronically recorded interview where he stated to police that he thought his conversation with CEIU30 was suspicious and that he spoke to her about sexually explicit things because he wanted to "scare her off". He stated to police that he kept communicating with her to see how far it would go but that he had no intention of meeting her.
Sequence 2: s 91H(2) of the Crimes Act 1900 (NSW) Possess Child Abuse Material
1. During the execution of the search warrant at the accused's residential premises, CEIU investigators seized the following electronic devices:
1. 1 x Lexar USB;
2. 1 x Computer tower "Deep cool" brand;
3. 1 x black laptop "Alienware" brand;
4. 2 x hard drives;
5. 1 x HTC mobile phone;
6. 1 x Apple Mac;
7. 1 x "colour turn" USB;
8. 1 x Silver Apple iPhone; and
9. 1 x Sandisk 16gb USB.
1. Material identified by CEIU investigators as child pornography is classified into categories as per the Interpole Baseline Categorisation System. This categorisation system makes reference to the activity depicted in the child pornography material as follows:-
Category Type
Image or video depicting a real pre-pubescent child:
ISB 1 Involved in a sex act;
Witnessing a sex act; or
Whose anal or genital region is the focus of the depiction
ISB 2 All other material which falls within the definition of child abuse material but which is not Category 1.
[2]
By virtue of the definition of 'child abuse' in section 91FB of the Crimes Act 1900 (NSW), material classified as child pornography material is, by extension, identified as child abuse material.
2. On about 6 January 2020, each of the electronic items seized from the accused was reviewed by CEIU investigators and the State Electronic Evidence Branch (SEEB) using the Interpol Baseline Scale (the IBS). Of those items, child pornography material was located on one of the electronic devices.
The "Deep cool" Computer Tower
1. The accused's computer tower was reviewed. Seven images contained on this device were classified as ISB2.
2. In relation to the image files, the images include depictions of a pre-pubescent female, who is wearing a bra, underwear and a fishnet shirt. The images progress through the removal of the fishnet top. The images focus on the buttocks, breasts and vagina of the child. There is no nudity in the images.
Antecedents
1. The accused is a 33 year old male and is a New Zealand citizen. He has one daughter who is 14 years of age.
2. The offender has no prior criminal history. The offender has been in custody since his arrest on 21 June 2019.
[3]
Evidence
Before me are two exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes:
1. The indictment;
2. Agreed facts (which are noted above);
3. Criminal and custodial history;
4. Comparative sentencing schedule; and
5. Forfeiture order.
Exhibit 2 is a psychological report by Bradley Jones dated 21 May 2020 together with his curriculum vitae and an expert certificate.
[4]
Exhibit 1
The offender has no prior criminal history.
[5]
Exhibit 2
Mr Jones assessed the offender via audio-visual link on 15 May 2020. The offender was raised in a relatively loving and supportive home environment in New Zealand. He experienced a history of emotional dysregulation and engaged in solitary online gaming in order to achieve some form of social connection. In Mr Jones's opinion, Mr McKeay is experiencing some symptoms of anxiety as a result of the current criminal proceedings. However, in Mr Jones's view, he is not suffering from a diagnosable condition.
At the time of the offending, Mr McKeay said he was feeling depressed and lonely. His daughter lived at home but she spent her time in her bedroom, socialising online with friends. His (female) partner lived in the Philippines. He reported that he had placed an online advertisement for an Asian teen girl as he wanted company and some form of companionship. The offender indicated that the advertisement and subsequent contact with the 'girl' reminded him of his first sexual experience with his first partner. He indicated that he had not thought of the consequences of his behaviour and that he was feeling increasingly anxious and uneasy with the contact he was having with the 'girl'. Notwithstanding the unease, he was unable to stop having contact. The offender stated that he was relieved that the 'girl' was in fact a police officer, that he was arrested and that a child was not hurt as a result of his behaviour. He acknowledged that what he did was wrong. He expressed guilt and remorse. He stated to Mr Jones:
"I regret doing that. I should never have done that. I should never had placed the ad or responded to her. I'm glad it was a police officer and not actually a child."
Mr McKeay's parents divorced when he was aged 15 and he believed that he was responsible for, or at least significantly contributed to their break-up. The offender indicated that most of his friends are online friends that he met through gaming. He denied experiencing any significant trauma or sexual abuse during his childhood.
Mr McKeay migrated to Australia in December 2009 in search of better work opportunities. He reported having two long-term intimate relationships. He began dating his first partner at age 18 and they had a daughter together, now aged 14. However, his partner was unfaithful to him and their relationship ended after four years. He met his current partner through an online dating app. She resides in the Philippines and he has visited her twice. The offender stated that since being placed on remand, their relationship has become closer and she remains supportive of him.
[6]
Objective Seriousness
With respect to the Commonwealth offence, the Crown submits that the factors set out in Tector v The Queen (2008) 186 A Crim R 133 at [94] and R v Asplund [2010] NSWCCA 316 must be considered when assessing the objective gravity, a submission with which Mr Steward on behalf of the offender does not disagree.
The Crown submits that the offender is highly culpable and notes the following:-
1. The offender spoke with CEIU30 over the Locanto and Skype messenger systems. The offender's communication with CEIU30 was persistent with numerous messages being sent over a two week period;
2. The offender knew from the outset that the victim was 14 years of age when they commenced communicating;
3. The offender initiated the offending by posting an advertisement offering a monetary reward for a teen girl the amount of $1000;
4. The offender reiterated to CEIU30 that she would receive money for sexual activity and sent her a copy of his bank balance to prove his ability to pay her;
5. The text messages were sexually explicit and suggest that the offender's intention was to engage in sexual activity and in particular sexual intercourse;
6. The messages demonstrate the offender's communications with a view to procuring CEIU30 for his own sexual gratification; and
7. There was power imbalance created by the age difference between the offender and CEIU30.
I accept that those matters are important when assessing the objective gravity of the offending.
Mr Steward submitted that the time over which the offending occurred was relatively short being 13 days, that the accused sent multiple messages to the victim, that the messages were sexually explicit, that there was no attempt by the offender to disguise his intention, that he sent pictures of himself, his bank details and conceded his age difference to the victim, that the putative age of the victim was relatively close to the threshold age of 16 years, that the offender made a monetary offer to the victim, and that the offence is not aggravated by actual harm because of the use of an imposter victim. So much is true, and I take these matters into account. I note that the while the presence of an actual victim may aggravate the offending, the absence of a victim will not mitigate it: DPP (Cth) v Singh [2017] VSCA 146 at [44].
In my opinion, noting the maximum penalty of 15 years imprisonment as a yardstick, the circumstances of the offending places it somewhere just below the middle of the range of objective seriousness.
[7]
Plea of Guilty 16A(2)(g) of the Crimes Act
The offender pleaded guilty to both counts on the indictment. He did so at the earliest opportunity and is entitled to a discount for the utilitarian value of his plea. I assign a discount of 25%.
[8]
Deterrence and Punishment s16A(2)(j) and s 16A(2)(k) of the Crimes Act
The Crown submits that general deterrence must be taken into account in determining the appropriate sentence for both the Commonwealth and NSW offences. There is no doubt that general deterrence and denunciation is of paramount importance in sentencing for these offences and must reflect the public interest in protecting children from sexual exploitation and abuse. In sentencing, courts must also bear in mind that offending involving the "grooming" and "procuring" of children has become increasingly prevalent with the advent of the internet as a means of allowing predators to act anonymously: see R v De Leeuw [2015] NSWCCA 183 at [72 (e) and (f)], and DPP (Cth) v Boyle (A Pseudonym) [2016] VSCA 269 at [91] - [94].
The sentence to be imposed must make clear to other like-minded persons that these types of offences are abhorrent, and will be met with punishment of a severity reflecting the community's attitude to the exploitation of children.
[9]
Personal Deterrence s16(2)(ja) of the Crimes Act
The Crown submits that there is a real need for the sentence to reflect an appropriate level of personal deterrence to reduce the offender's risk of similar predatory offending in the future.
Notwithstanding that submission, I note the opinion of Mr Jones in his report of 21 May 2020 that the offender is at a low risk of reoffending. He reached that conclusion after administering a battery of tests. As to the weight that I should accord the report of Mr Jones, whilst I accept that it is untested and I note that the offender did not give evidence, there is objective evidence of his self-harming (in the form of scarring), and the offender's mother corroborated at least some of the offender's history. I observe, without so finding, that it is likely that the offender has significant undiagnosed and untreated mental health issues.
In my opinion, personal deterrence has some, albeit limited, role to play.
[10]
Rehabilitation s16A(2)(n) and Remorse s16A(2)(f) of the Crimes Act
Where the motivation to commit these offences arises from some degree of sexual deviance, successful rehabilitation will depend on the extent to which an offender recognises a disorder and has taken steps to overcome it. Where an offender has sought counselling, and particularly where therapy reveals that his primary or basic sexual drive is not paedophilic, there is likely to be a lower risk of re-offending. In the context of sentencing offenders for child sex offences, a person who has sought and is undergoing treatment and evinces an intention to continue with treatment is usually viewed by the courts as having greater prospects of rehabilitation. Here, Mr Jones records the offender's remorse, which I accept.
In assessing the offender's prospects for rehabilitation, it is submitted by the offender that the court could make a positive finding after considering;
1. His remorse;
2. His assessed low risk of reoffending;
3. His family support in New Zealand;
4. His productive lifestyle characterised by full-time employment prior to his arrest;
5. The treatment plan devised by Mr Jones; and
6. The offender's lack of any prior criminal history.
I take these matters into account. In my opinion, the offender has reasonable prospects of rehabilitation, particularly if he engages in the treatment plan as set out by Mr Jones.
[11]
Personal Circumstances of Accused 16A(2)(m) of the Crimes Act
The offender is a 33 year old male with a 14 year old daughter. He migrated to Australia from New Zealand in 2009.
[12]
Prior Criminal History
The offender is entitled to some leniency on account of his prior good character and his lack of a prior criminal history, but less weight is to be accorded in offending of this kind: R v Gajjar (2008) 192 A Crim R 76.
[13]
Time in Custody
The offender has been in custody for this offending since 21 June 2019. I will backdate the sentence to that date.
[14]
Comparative Cases and Statistics
I have been provided with very helpful comparative cases by both the Crown and Mr Steward. In DPP (Cth) v Haynes [2017] VSCA 79 at [33] - [34], the court said:-
Comparable cases play an important role in advancing the underlying value of equality under the law and the search for unifying principles in the task of sentencing. Gleeson CJ, in Wong v The Queen, emphasised that the criminal justice system must be systematic and fair and that this systematic fairness necessitates reasonable consistency.
[15]
Commonwealth Sentencing Provisions
In sentencing an offender, the court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914 which provides procedural guidance on sentencing offenders who commit Commonwealth offences. In particular, the court must have regard to the matters set out in Section 16A. Part 1B is not intended to cover the field and is not intended to operate as a code.
Pursuant to section 16A(1) of the Crimes Act, any sentence that I impose must be of a severity appropriate in all of the circumstances. In doing so, I have had regard to all the matters referred to above, including those contained in section 16A(2) of that Act as are relevant and known to the court. I have also been guided by the approach of McHugh J in Markarian v The Queen [2005] HCA 25 at [51] and have had regard to the general principles identified by the High Court in Power v R [1974] 131 CLR 623.
In Hili v the Queen; Jones v the Queen [2010] HCA 45, the High Court made clear that a sentencing judge should, in Commonwealth matters, determine the minimum term to be served in accordance with Part 1B of the Crimes Act, together with the application of principles identified in Power.
Where the sentence of imprisonment imposed is more than three years, the court must fix a single non-parole period: s19AB.
Having regard to section 17A(1) of the Crimes Act, and after having considered all other available sentences, I am satisfied that no penalty other than imprisonment is appropriate in all of the circumstances of this case. No submissions were put otherwise.
In determining an appropriate sentence, I have kept in mind the legislative guidepost of the maximum penalty, which is 15 years, and the fact that there is no standard non-parole period for this offence.
After applying a 25% discount for the plea of guilty, I impose a head sentence of 2 years 3 months. Without the 25% discount, I would have imposed a sentence of 3 years. The sentence is backdated to commence on 21 June 2019, the date on which the offender was taken into custody. The offender is to be released on 20 September 2020 upon entering into a recognizance in the sum of $1000 without surety, with a further condition that he be of good behavior for the period of the recognizance order until 20 September 2021.
[16]
NSW Sentencing Provisions
I have taken into account the various purposes of sentencing under s3A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions - especially given in my opinion the offender's need for psychiatric review and ongoing rehabilitation, the former of which weighs heavily upon me in the sentencing exercise for this offence.
As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:
The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476-477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them.
The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances.
In determining an appropriate sentence I have kept in mind the maximum penalty of 10 years and I note the plea of guilty. I note that the offender has no prior criminal history. I observe that there are seven images only, and I note the description of them in the agreed facts. In my opinion, the s 5 threshold has not been crossed, and I am not satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. In my opinion, an order pursuant to s10A of the Sentencing Act is appropriate. I observe that the Crown and the offender's counsel did not dispute that such a result was appropriate in all of the circumstances of the offending.
[17]
Orders
Mr McKeay, please stand.
I convict you of:
1. The offence of using a carriage service to procure a person under 16 years of age for sexual activity contrary to s 474.26(1) of the Criminal Code (Cth); and
2. The offence of possess child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW).
For the offence contrary to s 474.26(1) of the Criminal Code (Cth), I sentence you to a term of imprisonment of 2 years, 3 months. I backdate your sentence to 21 June 2019, the date you were taken into custody. The offender is to be released on 20 September 2020 upon entering into a recognizance in the sum of $1000 without surety, with a further condition that he be of good behavior for the period of the recognizance order until 20 September 2021.
For the offence contrary to s 91H(2) of the Crimes Act 1900 (NSW), I convict you, but find it expedient to impose no further penalty.
Pursuant to s 23ZD of the Crimes Act 1914 (Cth), upon the application of the Director of Public Prosecutions, the Black Computer Tower "Deep Cool" brand (exhibit number: X0003300284), is forfeited to the Commonwealth.
Mr McKeay, do you understand the orders that I have made?
[18]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 31 July 2020
McKeay was convicted on both offences, sentenced to 2 years and 3 months’ imprisonment for the carriage-service offence (backdated to 21 June 2019, with release on recognizance on 20 September 2020 subject to good behaviour until 20 September 2021), and received no further penalty for possessing child abuse material; the Deep Cool computer tower was forfeited to the Commonwealth.
Mr McKeay first began consuming alcohol at age 17 and would drink on most weekends at social gatherings to the point of intoxication. He stopped drinking when his ex-partner conceived their child, but following the end of their relationship he recommenced drinking as he was depressed and engaging in self-harming behaviours. He stated that he would binge drink alone most weekends until he lost consciousness but ceased this behaviour at about age 25. The offender also smoked cannabis as a recreational activity but ceased when he was aged 22.
The offender indicated that he was diagnosed with Attention Deficit Disorder (ADD) at the age of 13 and was prescribed Ritalin. He ceased taking the medication when aged 16. He further recalled being diagnosed with Asperger's as a teenager. He was also prescribed the antidepressant drug Aropax in high school. He stated that after the break down of his first relationship, he became increasingly depressed and engaged in deliberate self-harm behaviours, namely the cutting of his arms. Mr Jones observed that the scars from that behaviour are still evident on the inside of both of his arms, predominantly to his left arm. The offender stated that the more online gaming he engaged in, the more online friends he made which helped him reduce and later cease his cutting behaviours. Mr McKeay reported that he first began to experience passive suicidal thoughts at the age of 16. When his first relationship ended, his suicidal ideation significantly increased and at age 23 he took an overdose of Panadol and Nurofen tablets and alcohol in an attempt to end his life. He believes that meeting his current partner has improved his mood and resulted in a reduction of suicidal ideation. After his arrest, his suicidal ideation increased while in custody which he reported to Corrective Services. He consulted a mental health nurse and had follow up psychological treatment. He has completed a mood management course whilst in custody, and he believes that he is now in a relatively stable mental condition.
The offender's mother confirmed that the offender was isolated as a youth, and that he suffered ADD and Asperger's disorder which affected his educational years. She believed that his offending was totally out of character.
The offender indicated that both his sexual partners have been of Asian appearance and that he is attracted to the facial features and the petite bodies of Asian females as he finds them less threatening then western females. He admitted having sexual fantasies and a sexual attraction to 18-21 year old Asian girls who dress up in school uniforms and has engaged in similar role-play. He denied sexual attraction towards preteen children and denied sexually deviant behaviours including rape scenarios and BDSM.
When questioned about the offence, Mr McKeay was self-critical and expressed shame and regret with respect to his behaviour. He was unable to state that he would not have attempted to meet with the 'girl'. He understood communicating with the 'girl' was wrong and said that he had experienced internal conflict about wanting to continue contact. He said that a lack of emotional and intimate bonding with his partner, and feelings of isolation and loneliness were an underlying factor for his need for some form of sexual intimacy. He also wanted to 're-live' his past sexual experiences with his initial partner during their school years, which he reported was a significant driving factor for placing the advertisement.
Mr Jones noted that the offender's affect was flat. Mr Jones administered a number of tests in assessing the offender's risk, and concluded that he poses a low risk for committing further offences relative to other offenders and presents a low risk of engaging in sexual offending behaviour. He proposes a treatment plan including cognitive behavioural therapy, vocational education and social skills training, stress management and psycho-education, communication and relationship training and relaxation training.
I note here that I have been greatly assisted by the able oral and written submissions of both the Crown and Mr Steward.
With respect to the State offence, the Crown points to the circumstances relevant to the determination of objective seriousness set out in Minehan v R [2010] NSWCCA 140 at [94], R v Hutchinson [2018] NSWCCA 152 at [45] and R v Porte [2015] NSWCCA 174, all of which are well known to the court. Of particular significance is a recognition by the courts that the possession of child pornography is not a victimless crime, as the harm is ongoing because the material remains in circulation on the internet.
In this matter, the Crown says that the offender possessed seven images which were located on his computer hard drive, being a series of images depicting a pre-pubescent female victim. He submitted that the offending is objectively serious and demonstrative of the offender's sexual interest in children.
Mr Steward notes that there is no nudity in the images and the classification assigned to the images is ISB1, which is the less serious category. He further submits that an actual child is portrayed, that there is no cruelty or physical harm depicted, only one child is depicted, there is no suggestion other than that the images were for the personal use of the offender, the proximity of the offender to the producers of the images is unknown, the offence lacks any apparent sophistication, the offender acted alone and there does not appear to be any discernible risk of the material being inadvertently discovered by other vulnerable persons.
In my opinion, taking into account the written and oral submissions of both the Crown and Mr Steward, the objective seriousness of this offending sits at the low end of the range.