R v Williams

Medium Neutral Citation: R v Williams [2025] NSWCCA 63

Hearing dates: 17 March 2025

Date of orders: 2 May 2025

Decision date: 02 May 2025

Before: Davies J at [1]
Wright J at [2]
Dhanji J at [3]

Decision: (1) The appeal is allowed.
(2) The aggregate sentence imposed on the respondent by English DCJ on 15 November 2024 is quashed and in lieu thereof the respondent is resentenced as follows:
(a) In relation to sequences 9, 10, 11, 13 and 19 and having regard to the offences on the schedules attached to sequences 10, 11 and 13 in accordance with s 16BA of the Crimes Act 1914 (Cth), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), an aggregate sentence is imposed. The respondent is sentenced to a term of imprisonment of 8 years with a non-parole period of 4 years commencing on 7 February 2023. The non-parole period will expire on 6 February 2027, and the head sentence will expire on 6 February 2031.

Catchwords: CRIME – appeals – Crown appeal against sentence – federal offences of procuring or attempting to procure persons believed to be children to engage in sexual activity outside of Australia – federal offences of persistent sexual abuse of children outside of Australia – State offence of failing to comply with reporting obligations – guilty pleas – aggregate sentence less than 50 percent of mandatory minimum sentences – nominated indicative sentence less than 75 percent of mandatory minimum sentence for sequence 9 – manifest inadequacy – where respondent conceded all grounds of appeal were established – appeal allowed – resentence
SENTENCING – resentence – where it appeared that the persons the subject of the offences were not in fact children – where the Director conceded that it could not be proved they were in fact children – where the concession was wrongly made with respect to certain sequences – respondent’s plea of guilty to some offences not admission of fact with respect to other offences – the Court should do no more than to act on the pleas – offences all objectively serious – offences committed remotely – respondent’s advanced age and health – aggregate sentence imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) – discount for pleas of guilty – equal justice

Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW), ss 16C, 17(1)
Children (Criminal Proceedings) Act 1987 (NSW), s 5A(1)(a)
Crimes Act 1900 (NSW), s 91H(2)
Crimes Act 1914 (Cth), ss 16A, 16AAA, 16AAB, 16AAC, 16BA, 19, 19B, 20(1)(a)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 53A
Criminal Appeal Act 1912 (NSW), ss 5D, 12(2)
Criminal Code (Cth), ss 272.8, 272.9, 272.11(1), 272.14(1), 272.15A(1)

Cases Cited: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Danishyar v R; R v Danishyar [2023] NSWCCA 300
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485
Kapila v R [2024] NSWCCA 48
Ke v R [2021] NSWCCA 177
Liu v R [2023] NSWCCA 30; (2023) 306 A Crim R 105
McGregor v R [2024] NSWCCA 200
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
Panetta v R [2016] NSWCCA 85
R v Ellis (1986) 6 NSWLR 603
R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Category: Principal judgment

Parties: Rex (Appellant)
Reginald James Williams (Respondent)

Representation: Counsel:
C Tran (Appellant)
S Talbert (Respondent)
Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Legal Aid NSW (Respondent)

File Number(s): 2023/00022338; 2023/00041499

Publication restriction: Nil

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Crown appealed against the aggregate sentence imposed on the respondent in the District Court in relation to nine federal offences contrary to ss 272.11(1), 272.14(1) and 272.15A(1) of the Criminal Code (Cth). English DCJ sentenced the respondent for the federal offences to an aggregate term of imprisonment of 3 years and 4 months with a non-parole period of 1 year and 10 months. The respondent was also dealt with for a State offence of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW). The sentence for the State offence was wholly concurrent with the sentence for the federal offences and was not the subject of appeal.

The Crown raised three grounds in its appeal. Ground 1 contended that the sentencing judge erred by imposing an aggregate sentence that was less than the mandatory minimum sentence of imprisonment required by s 16AAA of the Crimes Act 1914 (Cth) for each of sequences 10 and 11. Ground 2 contended that the sentencing judge erred by nominating an indicative sentence for sequence 9 that was less than the mandatory minimum sentence of imprisonment required by s 16AAC of the Crimes Act 1914. Ground 3 contended that the sentences imposed in respect of each of sequences 9, 10, 11, 13 and 19, the orders for cumulation, and the non-parole period were manifestly inadequate. The respondent conceded that all grounds of appeal were established and that he should be resentenced.

An issue on appeal was the form of the various charges and whether the agreed facts established that the persons the subject of the charges were children. In argument, counsel for the Director submitted that the Court should proceed on the basis that the Director “couldn’t prove that the children on the other side were in fact below 16, it was on the basis [the respondent] believed them to be younger than 16”. Counsel for the Director sought to withdraw the concession in relation to the sequences contrary to s 272.11(1) of the Criminal Code because the concession was not consistent with the elements of the offence charged. Counsel also sought to withdraw the concession in relation to the sequences scheduled to the s 272.11(1) sequences, which were offences contrary to ss 272.14(1) and 272.15A(1) of the Criminal Code and did not require proof that the subject of the offences was a child. The respondent accepted that the concession should be withdrawn for the offences contrary to s 272.11(1) as well as the scheduled sequences.

T****he Court held (Dhanji J, Davies and Wright JJ agreeing) allowing the appeal, quashing the sentence imposed by the sentencing judge and resentencing the respondent:

As to the sequences contrary to s 272.11(1):

1. Counsel for the Director’s concession was consistent with the elements of the offences charged contrary to ss 272.14(1) and 272.15A(1) but was not consistent with the elements of the offences charged contrary to s 272.11(1). In an appeal under s 5D, the Court’s powers are limited to allowing the appeal, dismissing the appeal, or, potentially, remitting the matter pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW). In this matter, given the concession as to error, any dismissal of the appeal would be on the basis of the residual discretion. The respondent, however, appropriately accepted the Court would allow the appeal. The concession was not consistent with sequences 10 and 11 which necessitated its withdrawal (at [21]-[24]).
2. The Director was granted leave to withdraw the concession with respect to the scheduled sequences although it was not clear that this was necessary in order to resentence the respondent. First, the Court did not have the benefit of argument on the issue. Secondly, the respondent would not be sentenced for the sequences on the s 16BA schedules, but they would be taken into account, leading to greater weight being given to specific deterrence and retribution in a manner that would not be significantly affected by the concession (at [26]).

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 cited.

As to ground 1:

3. The absolute minimum sentence of imprisonment that a sentencing judge may impose below the mandatory minimum is 50 percent of that mandatory minimum, applicable in circumstances where the offender has pleaded guilty and has cooperated with law enforcement agencies. The aggregate sentence imposed by the sentencing judge was less than 50 percent of the mandatory minimum of 7 years which applied to each of sequences 10 and 11. The aggregate sentence imposed for those offences was, consequently, contrary to law (at [82]-[83]).

As to ground 2:

4. The minimum period of imprisonment available, assuming the application of the maximum discounts of 25 percent each for the plea of guilty and the co-operation respectively, was 2 years. Here, however, the respondent conceded that he was not entitled to any discount for co-operation. In these circumstances, the minimum sentence available was 3 years, or 75 percent of the mandatory minimum sentence. The nominated indicative sentence of 2 years was not available. That was an error in nominating an indicative sentence, which potentially impacted the determination of the aggregate sentence (at [89]).

As to ground 3:

5. It was not in issue that sentences of imprisonment were appropriate. That is, alternatives to imprisonment such as disposition without conviction pursuant to s 19B of the Crimes Act 1914, or the deferral of sentence pursuant to s 20(1)(a) of that Act were not appropriate in the circumstances. That being the case, the aggregate sentence, being less than the mandatory minimum sentence for each of sequences 10 and 11, was necessarily outside the available range (at [92]).

Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485 cited.

As to resentencing:

6. The respondent was entitled to a 25 percent discount for his guilty pleas consistent with s 16A(2)(g) of the Crimes Act 1914. He was not entitled to a discount for co-operation within the meaning of s 16AAC(3)(b). However, in the light of the Director’s concession as to the prosecution’s ability to prove sequences 10 and 11, a further discount was accommodated in the respondent’s plea of guilty based on a combination of its utilitarian value and his willingness to facilitate the course of justice. The respondent was, consequently, allowed a discount of 50 percent for the pleas of guilty with respect to sequences 10 and 11. However, any sentence to which only one of the factors in s 16AAC(2) attaches cannot fall below 75 percent of the prescribed minimum sentence or “floor” of 7 years, which is 5 years and 3 months*: Crimes Act 1914*, s 16AAC(3) (at [120]-[121]).

R v Ellis (1986) 6 NSWLR 603, Panetta v R [2016] NSWCCA 85, Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, McGregor v R [2024] NSWCCA 200 applied.

7. Although the default position is for the sentences to be served cumulatively, the Court was satisfied that imposing partially concurrent sentences would still result in sentences that were of a severity appropriate in all the circumstances: Crimes Act 1914, subss 19(5) and (6) (at [129]).

JUDGMENT

1. DAVIES J: I have had the considerable advantage of reading Dhanji J’s judgment in draft. I agree with his Honour’s reasons and the orders he proposes.

2. WRIGHT J: I agree with the orders proposed by Dhanji J for the reasons given by his Honour.

3. DHANJI J: The Crown, pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW), appeals against the sentence imposed upon the respondent, Reginald James Williams, in the District Court of New South Wales at Queanbeyan on 15 November 2024 by English DCJ.

4. The respondent pleaded guilty to nine federal offences related to him procuring or attempting to procure persons he believed to be children to engage in sexual activity with him outside of Australia and the persistent sexual abuse of two children outside of Australia. It will be necessary in due course to say something in relation to the form of the various charges which described the victim as being, in fact, a child.

5. The respondent also pleaded guilty to one State offence of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW).

6. The following table outlines the offences for which the respondent was sentenced, their minimum and maximum penalties, and the indicative sentences as determined by the sentencing judge:

| Seq | Offence | Maximum and Minimum Penalty | Indicative Sentence | | 1 | On 20 January 2023 at Ulladulla in New South Wales, Reginald James WILLIAMS did, without reasonable excuse, fail to comply with his reporting obligations. (s 17(1) of the Child Protection (Offenders Registration) Act) | Max: 5 years imprisonment and/or 500 penalty units | 1 year imprisonment | | 9 | Between about 23 November 2022 and 15 December 2022 at Ulladulla in New South Wales, Reginald James WILLIAMS engaged in conduct in relation to the child, known as “Natasha”, being someone who the Accused believed to be under 16 years of age, with the intention of procuring the child to engage in sexual activity outside Australia and the child was outside of Australia when the conduct occurred. (s 272.14(1) of the Criminal Code (Cth)) | Max: 15 years imprisonment Min: 4 years imprisonment | 2 years imprisonment | | 10 | Between about 21 September 2022 and about 7 November 2022, Reginald James WILLIAMS engaged in persistent sexual abuse of a child outside Australia by committing offences against s 272.9(1) of the Criminal Code (Cth) on five occasions in relation to the same child, namely the child known as “Lydia”. (s 272.11(1) of the Criminal Code) Section 16BA Seq 8: Between about 18 September 2022 and 7 December 2022 at Ulladulla in New South Wales, Reginald James WILLIAMS engaged in conduct in relation to the child, known as “Lydia”, being someone who the Accused believed to be under 16 years of age, with the intention of procuring the child to engage in sexual activity outside Australia and the child was outside of Australia when the conduct occurred. (s 272.14(1) of the Criminal Code) Seq 15: On about 31 October 2022 at Ulladulla in New South Wales, Reginald James WILLIAMS engaged in conduct in relation to another person, namely the person using the Skype handle “Tina Brown”, with the intention of making it easier to procure a child, namely the child known as “Lydia”, who the Accused believed was under 16 years old, to engage in sexual activity outside Australia and the child was outside of Australia when the conduct occurred. (s 272.15A(1) of the Criminal Code) | Max: 30 years imprisonment Min: 7 years imprisonment Max: 15 years imprisonment Max: 15 years imprisonment | 3 years imprisonment | | 11 | Between about 4 November 2022 and about 6 November 2022, Reginald James WILLIAMS engaged in persistent sexual abuse of a child outside Australia by committing offences against s 272.9(2) of the Criminal Code (Cth) on two occasions in relation to the same child, namely an unknown child in the care of the person using the Skype handle “Pretty”. (s 272.11(1) of the Criminal Code) Section 16BA Seq 14: Between about 4 November 2022 and 6 November 2022 at Ulladulla in New South Wales, Reginald James WILLIAMS engaged in conduct in relation to another person, namely the person using the Skype handle “Pretty”, with the intention of making it easier to procure an unknown child, who the Accused believed was under 16 years old, to engage in sexual activity outside Australia and the child was outside of Australia when the conduct occurred. (s 272.15A(1) of ) | Max: 30 years imprisonment Min: 7 years imprisonment Max: 15 years imprisonment | 3 years imprisonment | | 13 | On about 24 November 2022 at Ulladulla in New South Wales, Reginald James WILLIAMS engaged in conduct in relation to another person, namely the person using the Skype handle "Franklina", with the intention of making it easier to procure a child, namely the child known as "Natasha", who the Accused believed was under 16 years old, to engage in sexual activity outside Australia and the child was outside of Australia when the conduct occurred. (s 272.15A(1) of ) Section 16BA Seq 12: On about 24 November 2022 at Ulladulla in New South Wales, Reginald James WILLIAMS engaged in conduct in relation to another person, namely the person using the Skype handle “Franklina”, with the intention of making it easier to procure a child, namely the child known as “Lydia”, who the Accused believed was under 16 years old, to engage in sexual activity outside Australia and the child was outside of Australia when the conduct occurred. (s 272.15A(1) of ) | Max: 15 years imprisonment Min: 4 years imprisonment Max: 15 years imprisonment | 3 years imprisonment | | 19 | Between about 18 November 2022 and 19 November 2022 at Ulladulla in New South Wales, Reginald James WILLIAMS engaged in conduct in relation to another person, namely the person using the Skype handle “Diana”, with the intention of making it easier to procure an unknown child who the Accused believed was under 16 years old, to engage in sexual activity outside Australia and the child was outside of Australia when the conduct occurred. (s 272.15A(1) of ) | Max: 15 years imprisonment Min: 4 years imprisonment | 3 years imprisonment |

7. The indicative sentences for the offences were each arrived at after the application of a 25 percent discount for the respondent’s early plea of guilty pursuant to s 16A(2)(g) of the Crimes Act 1914 (Cth) and, in the case of the State offence, s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW).

8. As can be seen from the table, the sentencing judge took four federal offences into account pursuant to s 16BA of the Crimes Act 1914, two in relation to sequence 10 and one each in relation to sequences 11 and 13. The sentence for the State offence was wholly concurrent with the sentence for the federal offences.

9. The respondent was sentenced to an aggregate term of imprisonment of 3 years and 4 months commencing on 7 February 2023 with a non-parole period of 1 year and 10 months. The non-parole period expired on 6 December 2024 and the total sentence, if not disturbed, will expire on 6 June 2026. As at the date of the hearing the respondent had not been released to parole. It seems likely this appeal affected the decision not to grant him parole.

10. The grounds of appeal on which the appellant seeks to rely are as follows:

Ground 1: The sentencing judge erred by imposing an aggregate head sentence of less than 50% of the mandatory minimum head sentence in relation to sequences 10 and 11, contrary to s 16AAA of the Crimes Act 1914 (Cth).

Ground 2: The sentencing judge erred by applying a reduction to account for the offender’s guilty plea which was greater than 25% of the mandatory minimum head sentence in relation to sequence 9, contrary to s 16AAC of the Crimes Act 1914 (Cth).

Ground 3: The sentences imposed in respect of each of sequences 9, 10, 11, 13 and 19, the orders for cumulation, and the non-parole period are manifestly inadequate, in particular, but not only, because:

a. The sentences on each of sequences 9, 10, 11, 13 and 19 fell below the mandatory minimum head sentence for those offences;

b. The reduction in the sentences imposed on each of sequences 9, 10, 11, 13 and 19:

i. was not necessary to properly account for the value of the plea; and

ii. in respect of sequence 9, was greater than 25%, contrary to the approach to s 16AAC of the Crimes Act 1914 (Cth);

c. The sentences on each of sequences 10, 11 and 13 did not adequately account for the charges to be taken into account in the sentencing for those sequences pursuant to s 16BA of the Crimes Act 1914 (Cth);

d. The sentence did not have proper regard to the minimum and maximum penalties prescribed for the offences; and

e. The sentence did not properly reflect the principles of denunciation, punishment, and specific and general deterrence.

11. The respondent concedes that each of the appellant’s grounds of appeal are established and does not argue against the Court exercising its residual discretion and moving to resentence the respondent. Unsurprisingly, on resentence, the parties emphasised different matters as deserving of weight.

12. For the reasons set out below, I would allow the appeal and resentence the respondent.

The charges – offences against “children”

13. As can be seen from the table set out above, the respondent was convicted of federal offences contrary to ss 272.11(1), 272.14(1) and 272.15A(1) of the Criminal Code (Cth). Each of these offences alleged that the respondent had engaged in conduct in relation to a child, or another person with the intention of making it easier to procure a child.

14. The form of the charges suggests that an actual child was involved in each case. This is necessarily the case in relation to the offences against s 272.11(1) of the Criminal Code. Section 272.11, which creates the offence of persistent sexual abuse of a child outside Australia, is based on proof of the commission of particular “underlying” offences in relation to the same person on two or more occasions, referring to that person as “the child”. The “underlying” offences for the purposes of s 272.11(1) are ss 272.8(1), 272.8(2), 272.9(1) or 272.9(2) of the Criminal Code. Section 272.11(1) provides:

272.11 Persistent sexual abuse of child outside Australia

(1) A person commits an offence against this section if the person commits an offence (the underlying offence) against one or more of the following provisions in relation to the same person (the child) on 2 or more separate occasions during any period:

(a) subsection 272.8(1) (engaging in sexual intercourse with child outside Australia);

(b) subsection 272.8(2) (causing child to engage in sexual intercourse in presence of defendant outside Australia);

(c) subsection 272.9(1) (engaging in sexual activity (other than sexual intercourse) with child outside Australia);

(d) subsection 272.9(2) (causing child to engage in sexual activity (other than sexual intercourse) in presence of defendant outside Australia).

Penalty: Imprisonment for 30 years.

15. The underlying offences relied on with respect to sequence 10 were five offences against s 272.9(1), and with respect to sequence 11, two offences against s 272.9(2). Sub-sections 272.9(1) and (2) provide as follows:

272.9 Sexual activity (other than sexual intercourse) with child outside Australia

Engaging in sexual activity with child

(1) A person commits an offence if:

(a) the person engages in sexual activity (other than sexual intercourse) with another person (the child); and

(b) the child is under 16; and

(c) the sexual activity is engaged in outside Australia.

Note: A person is taken to engage in sexual activity if the person is in the presence of another person (including by a means of communication that allows the person to see or hear the other person) while the other person engages in sexual activity: see the definition of engage in sexual activity in the Dictionary.

Penalty: Imprisonment for 20 years.

Causing child to engage in sexual activity in presence of defendant

(2) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the child); and

(b) that conduct causes the child to engage in sexual activity (other than sexual intercourse) in the presence of the person; and

(c) the child is under 16 when the sexual activity is engaged in; and

(d) the sexual activity is engaged in outside Australia.

Penalty: Imprisonment for 20 years.

16. In each case, the offence is dependent on proof that the child was under the age of 16. The other potential foundational offences for the purposes of an offence against s 272.11(1), being ss 272.8(1) and 272.8(2), also require proof that the “other person” was under the age of 16.

17. The above is to be contrasted with the offences constituting sequences 9, 13 and 19 (and the offences on the schedules). These were offences against ss 272.14(1) and 272.15A(1). Section 272.14(1) provides:

272.14 Procuring child to engage in sexual activity outside Australia

(1) A person commits an offence if:

(a) the person engages in conduct in relation to another person (the child); and

(b) the person does so with the intention of procuring the child to engage in sexual activity (whether or not with the person) outside Australia; and

(c) the child is someone:

(i) who is under 16; or

(ii) who the person believes to be under 16; and

(d) one or more of the following apply:

(i) the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;

(ii) the child is outside Australia when the conduct referred to in paragraph (a) occurs;

(iii) the conduct referred to in paragraph (a) occurs wholly in Australia and the child is in Australia when that conduct occurs.

Penalty: Imprisonment for 15 years.

18. It can be seen from the above that the first element of the offence is engaging in conduct with “another person”: s 272.14(1)(a). That other person is then defined for the purposes of the provision as “the child”, irrespective of the age of that other person. The element in relation to the age of that other person is provided by s 272.14(1)(c), which requires proof that the other person, described as “the child”, is either under 16, or was believed by the accused to be under 16.

19. Section 272.15A(1) is like s 272.14(1) in that it is sufficient if the “other person”, referred to as “the child”, is believed by the accused to be under 16 years of age, even if that is not the case. Section 272.15A(1) provides:

272.15A “Grooming” person to make it easier to engage in sexual activity with a child outside Australia

(1) A person (the defendant) commits an offence if:

(a) the defendant engages in conduct in relation to another person (the third party); and

(b) the defendant does so with the intention of making it easier to procure a person (the child) to engage in sexual activity (whether or not with the defendant) outside Australia; and

(c) the child is someone:

(i) who is under 16; or

(ii) who the defendant believes to be under 16; and

(d) one or more of the following apply:

(i) the conduct referred to in paragraph (a) occurs wholly or partly outside Australia;

(ii) the third party or the child (or both) is outside Australia when the conduct referred to in paragraph (a) occurs;

(iii) the conduct referred to in paragraph (a) occurs wholly in Australia and both the third party and the child are in Australia when that conduct occurs.

Penalty: Imprisonment for 15 years.

20. At the hearing of the appeal, an issue arose as to whether the facts established that the persons with whom the respondent engaged for the purposes of the offences were children under the age of 16, or persons he believed to be under the age of 16. This was as a result of the somewhat curious wording of the agreed facts. On my reading of the facts, it appears unlikely that any of the persons the subject of the charges were children.

21. In argument, counsel for the Director submitted that the Court should proceed on the basis that the Director “couldn’t prove that the children on the other side were in fact below 16, it was on the basis he believed them to be younger than 16”. The concession, while consistent with the elements of the offences charged contrary to ss 272.14(1) and 272.15A(1), was not, as explained above, consistent with the elements of the offences charged contrary to s 272.11(1).

22. On 20 March 2025, the Court caused an email to be sent to the parties, referring to the elements of s 272.11(1) and the Director’s concession, and requested the parties provide submissions as to the appropriate course in light of the matters raised. The Director submitted that in respect of the agreed facts relating to sequences 9, 13 and 19, the concession was appropriately made and intended to be made. The Director, however, indicated that in respect of sequence 10 (with the scheduled sequences 8 and 15), sequence 11 (with the scheduled sequence 14) and sequence 12 (taken into account on a schedule attached to sequence 13), the concession was not appropriate and was not intended to be made. Counsel for the Director consequently sought leave to withdraw the concession with respect to those sequences.

23. Counsel for the respondent accepted that while there was “no evidence as to the exact age of the children involved”, by the respondent’s plea of guilty to sequences 10 and 11, he should be sentenced on the basis that the sexual activity he engaged in was in the presence of a person who was under the age of 16.

24. In an appeal under s 5D, the Court’s powers are limited to allowing the appeal, dismissing the appeal, or, potentially, remitting the matter pursuant to s 12(2) of the Criminal Appeal Act. In this matter, given the concession as to error, any dismissal of the appeal would be on the basis of the residual discretion. The respondent, however, in my view, appropriately accepted the Court would allow the appeal. This necessitates the withdrawal of the concession with respect to sequences 10 and 11.

25. The respondent also accepted that the appellant should be allowed to withdraw the concession in relation to the scheduled sequences noted above, being sequences 8 and 15, sequence 14 and sequence 12. These sequences, being offences against ss 272.14(1) and 272.15A(1), do not require proof that the subject of the offence was a child. The child particularised, for sequences 8, 12 and 15 was “Lydia”, the same child as particularised in sequence 10. The child particularised in sequence 14 was the child in the care of “Pretty”, the same child particularised in sequence 11. The appellant’s position, which was unopposed, was that the pleas to sequences 10 and 11 were sufficient to prove the age of Lydia and the child in the care of Pretty respectively, and that this was capable of application to the same “child” in sequences 8, 15 and 12 (Lydia), and 14 (the child in the care of Pretty). It is not altogether clear that this follows. The respondent was free to plead to each of the charges. Having done so in open court, with no issue that he was of sound mind and understanding, the court properly acted on that plea: (1995) 184 CLR 132 at 141; [1995] HCA 41; see also [2021] NSWCCA 177 at [15]-[21]. While the plea acts as an admission of each of the elements of the offence to which it was entered, it is not clear to me that the Court is required to go further and treat the plea as an admission of a fact (of which the respondent was unlikely to have had knowledge) applicable to some other charge.

Agreed Facts

How detailed should the facts provided in these reasons be?

29. There is a dilemma faced by courts considering the level of detail that should be reproduced in reasons such as these, particularly where they will be published on the internet. On the one hand, reasons for judgments should adequately explain the reason for the particular outcome, including, in the context of sentencing, the relationship between the particular offending and the penalty imposed. On the other, there is an obvious undesirability in reproducing graphic material: see Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556 at [5] (per Basten JA). In the present case, where the offending was primarily text-based communications, that graphic content is capable of being reproduced in full. In my view, the summaries below are sufficient to obtain an understanding of the objective gravity of the offending. It should not be assumed in this context that a lengthy dissertation of the facts is necessarily more helpful in understanding the offending than a more focussed summary.

30. A statement of agreed facts dated 1 March 2024 was tendered during the sentencing proceedings. The following is taken from those facts.

The respondent’s prior offending and the search

31. At the time of his offending, the respondent was on conditional liberty, namely a community correction order imposed in the Local Court for possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). That offence related to the respondent’s possession of 30 category 1 child abuse material images, including one image depicting sexual intercourse between an adult male and a young girl, and 73 category 2 images, including a video file of a young boy and young girl engaged in imitating sexual acts and posing whilst wearing underwear.

32. As a result of the prior offending, the respondent was on the child protection register pursuant to the Child Protection (Offenders Registration) Act. On 20 January 2023, police conducted an inspection at the respondent’s home pursuant to s 16C of that Act. Police seized the respondent’s iPad, which was signed into his Skype account “JIM RILLMAS”, and located material on the Skype chat and Skype video platforms that gave rise to the offences for which the respondent has been sentenced.

Sequence 1 – fail to comply with reporting obligations

33. While not the subject of the appeal, sequence 1 is relevant to both the context of the federal offences and the overall sentence imposed. The offence concerned the respondent failing to comply with his obligations as a registrable person under the Child Protection (Offenders Registration) Act contrary to s 17(1) of that Act. The facts the subject of sequence 1 were:

“18. On 2 June 2022, police issued a notice to the [respondent] under the Child Protection Act. The [respondent] signed a copy of this notice.

19. On 20 January 2023, police went to the [respondent]'s home to conduct an inspection pursuant to section 16C of the Child Protection Act.

20. During the inspection, police identified that the [respondent] had failed to report his membership of the Milton Ulladulla Bowling Club and the Mollymook Golf Club, and failed to report his contact with the children the subject of counts 2-10.

21. As a result, the [respondent] failed to comply with his obligations pursuant to the Child Protection Act (H91258260/1).”

The Criminal Code offences generally

34. It is convenient to observe at the outset, in relation to the federal offences, that the communications took place over the Skype platform. While that platform is known to be used for video calls, it appears that much of the respondent’s communications were by way of text. There is no evidence that he was able to see or hear the other party to the calls at any time. It is this fact, along with the language used in the chats, that primarily gave rise to my doubts about the actual age of the “children” the subject of the offences. While the respondent could not see the persons with whom he was communicating, it appears that, at times, they were able to see him.

35. Child abuse material was, on occasion, sent to the respondent. This material was represented to the respondent as relating to the “children” the subject of the charges. It is unlikely this material in fact depicted the person or persons with whom the respondent was communicating.

36. The respondent regularly sent money to the persons with whom he was communicating, including the “children”, in the form of "top ups" to their mobile phone accounts, on the premise that the money was needed to pay for their internet access, and inferentially to maintain their ongoing sexual activity with the respondent.

Sequence 9 – procuring contrary to s 272.14 of the Criminal Code

37. Sequence 9 concerned the respondent engaging in conduct in relation to the person known as “Natasha”, whom the respondent believed to be 9 years old, with the intention of procuring that person to engage in sexual activity outside Australia, contrary to s 272.14(1) of the Criminal Code. The respondent engaged in four text conversations with Natasha via Skype.

38. The respondent was introduced to Natasha by Lydia. Lydia was a child, purportedly aged 11 years old, and the subject of charges referred to below. Lydia told the respondent she had a friend. The respondent asked Lydia how old her friend was and whether she liked “fucking”. The respondent said that he “hope[s] she is very young”. Lydia said that the friend was 8 years old. The respondent said that was a “perfect age” and asked, “[c]an she come to your house so we can fuck”.

39. On 22 November 2022, the respondent contacted Natasha on the Skype address provided to him. Further contact took place on 23 November, 30 November, 8 December and 15 December 2022. There was an attempt at contact by the respondent on 24 November 2022. The exchanges were relatively short, the entirety of the exchanges being contained in approximately 85 messages, each of which was relatively brief.

40. The respondent told Natasha that Lydia had sent him “your videos” which he said were “marvellous” and that he “went and had sex over [her] straight away”. The respondent asked to “see more” of Natasha but was told her phone camera was broken. In subsequent conversations, photographs and a video were sent by Natasha purporting to be of her. The content of the photographs is unknown, beyond the inference that they depicted a child consistent with Natasha’s purported age. The video was indicated in the facts to be child abuse material.

41. In the communication on 23 November 2022, the respondent asked how old Natasha was and was told she was nine. The respondent replied, "9 is good or younger". Throughout the conversation with Natasha, the respondent used highly graphic and sexualised language. There were frequent references to “fucking”, sex between Lydia and Natasha and their mutual interest in “dirty talk” and pornography. The respondent indicated his desire to show Natasha his “dick”, said that he loved “very young girls”, called her a “slut” and indicated his appreciation of what were purported to be her videos and photographs.

42. Although it is unnecessary to decide, given the respondent’s criminal responsibility is based on his belief, it might be doubted that Natasha was in fact a separate identity to Lydia who provided the initial “introduction”.

Sequence 10 – persistent sexual abuse of Lydia contrary to s 272.11(1) of the Criminal Code (Sequences 8 and 15 – offences of procuring taken into account on a schedule)

43. These sequences relate to a child known as “Lydia”, whom the respondent believed to be 11 years old. As discussed above, I proceed on the basis that she was under 16.

44. Sequence 10 concerned the respondent engaging in the persistent sexual abuse of Lydia contrary to s 272.11(1) of the Criminal Code. The respondent’s liability for this offence was based on him engaging in sexual activity (other than sexual intercourse) via Skype, namely masturbation, in the presence of Lydia contrary to s 272.9(1) on five occasions. Those offences were committed on 21 September 2022, 29 October 2022, 30 October 2022, 31 October 2022 and 7 November 2022. It seems that during these calls, Lydia could see the respondent, but there is no evidence that the respondent could see Lydia. The conversations between the respondent and Lydia during these calls appear to be via Skype text messages.

45. The number of calls that occurred and their duration is only apparent in the extracts provided on 21 September and 7 November 2022. The extracts from the other dates do not include explicit notations as to the calls that occurred.

46. On 21 September 2022, the respondent messaged Lydia on Skype and asked her “[d]o you want to have sex” to which Lydia replied, “yes I want to have sex”. The respondent subsequently called Lydia six times. The calls were relatively brief, being: 4 seconds; 25 seconds; 56 seconds; 1 minute and 14 seconds; 1 minute and 51 seconds; and 2 minutes and 24 seconds in length. There were also two further missed calls between the respondent and Lydia. The brevity of these calls appears to be as a result of poor internet connection. Throughout these calls, the respondent sent messages which employed highly graphic and sexualised language and he masturbated in Lydia’s presence. For example, during the fourth call, Lydia indicated that the respondent’s penis was “big”, and the respondent replied that he wanted to engage in penile-anal sex with her and called her a “fucking slut”. During the fifth call, the respondent discussed performing various sexual acts with Lydia, including fellatio and cunnilingus. During the final call, the respondent requested that Lydia send photos of herself on two occasions. The contents of those two images were not recovered but inferentially they depicted a child consistent with Lydia’s purported age.

47. There was no extract provided from 29 October 2022. On 30 October, the respondent asked Lydia “[w][ill I cam now”, to which she said “yes do”. The respondent asked Lydia “[d]id you see”, to which she also said “yes”. On 31 October, the respondent, after receiving an image from Lydia, said that he was “going to masturbate now” and asked Lydia whether she would watch. Lydia replied, “yes i can watch”, and when the respondent asked her “[d]id you see”, she replied “yes”.

48. On 7 November 2022, the respondent and Lydia engaged in two Skype calls during which they discussed various sexual acts using highly graphic and sexualised language. The respondent called Lydia a “slut” on three occasions and discussed fellatio, cunnilingus and penile-vaginal and penile-anal sex. The respondent was masturbating throughout both calls and stated that “I love you watching me jerk off”. During these calls, Lydia requested that the respondent send her “internet”, presumably money to pay for her internet access, so that she could send him a video of herself. The respondent asked Lydia for a “really filthy pic” of “[a]ll your body” so that he could masturbate, to which she did not reply.

Sequence 8

50. Sequence 8 concerned the respondent engaging in conduct in relation to the person known as “Lydia”, whom the respondent believed to be under 16 years of age, with the intention of procuring her to engage in sexual activity outside Australia, contrary to s 272.14(1) of the Criminal Code. The respondent’s liability for sequence 8 was based on him engaging in text conversations with Lydia via Skype between 18 September 2022 and 1 January 2023.

51. The respondent’s communications with Lydia occurred on at least 15 different occasions, some of which are canvassed in the above facts. Throughout the conversations with Lydia, the respondent again used highly graphic and sexualised language. These conversations included the topics of fellatio, cunnilingus, penile-vaginal sex, mutual masturbation, sex toys and Lydia having sex with adult women. The respondent regularly requested that Lydia watch him masturbate, engage in sex acts and send him images of various parts of her naked body via Skype. Across these conversations, Lydia sent four images which, again, presumably depicted a child consistent with Lydia’s purported age, along with one image of “Natasha”.

52. On several occasions, the respondent emphasised the importance of keeping their conversations secret. By way of example, on 27 October 2022, the respondent told Lydia to “be careful no one finds out anything, especially your mother”. On 1 January 2023, the respondent said, “[m]ake sure you delete all our conversation”.

Sequence 15

53. Sequence 15 concerned the respondent grooming the person using the Skype handle “Tina Brown”, with the intention of making it easier to procure Lydia to engage in sexual activity outside Australia, contrary to s 272.15A(1) of the Criminal Code. The respondent’s liability for this offence was based on his communications with Ms Brown between about 16 September 2022 and 25 December 2022 via Skype.

54. By way of example, on 31 October 2022, the respondent gave Ms Brown Lydia’s telephone number, described Lydia as a “slut”, and instructed Ms Brown to “[t]alk really filthy to her, she wants it”. The respondent suggested that Ms Brown, Lydia and “Franklina” have a “3some”.

Sequences 11 - persistent sexual abuse of child contrary to s 272.11(1) of the Criminal Code (Sequence 14 - offence of procuring taken into account on a schedule)

55. These sequences relate to a child whom the respondent believed to be aged 4 or 5 years old and was in the care of the person using the Skype handle “Pretty”.

56. Sequence 11 concerned the respondent engaging in the persistent sexual abuse of the child the subject of these sequences contrary to s 272.11(1) of the Criminal Code. The respondent’s liability for this offence was described in the facts as involving him engaging in sexual activity (other than sexual intercourse) via Skype, namely masturbation, in the presence of the child the subject of these sequences on 4 November 2022 and 6 November 2022. This describes two offences against s 272.9(1), not s 272.9(2) as particularised in the charge against s 272.11(1). Given the agreed facts I will treat the particular in the charge identifying s 272.9(2) as the underlying offence provision, rather than s 272.9(1), as an error.

57. On 4 November 2022, the respondent messaged Pretty on Skype and told her “I want a little girl about 4 or 5” to which Pretty replied that she had a girl of that age with her, and that they were watching him “fucking”, presumably masturbating via the Skype video function. The respondent subsequently called Pretty twice, those calls being 2 minutes and 36 seconds and 6 minutes and 15 seconds in length. During or after the second call, the respondent told Pretty, “I love doing it especially if a little girl is watching”.

58. On 6 November 2022, the respondent asked Pretty whether she had company, and Pretty indicated that the child the subject of these sequences was with her. The respondent asked whether she was “old enough for sex” to which Pretty replied that she was “just 4 yrs old”. The respondent indicated that he would “love to see her naked” and that a 4-year-old was his “dream”. Pretty called the respondent and the respondent subsequently called Pretty. Those calls were 1 minute and 8 seconds and 2 minutes and 44 seconds in length. During or after the second call, the respondent asked whether “the girl” was there, to which Pretty replied “[y]es I am fucking her love”. The respondent asked whether the girl liked his penis, to which Pretty replied “yes”.

59. In sentencing for sequence 11, sequence 14 was taken into account on a schedule in accordance with s 16BA of the Crimes Act 1914.

Sequence 14

60. Sequence 14 concerned the respondent grooming the person using the Skype handle “Pretty” with the intention of making it easier to procure the child the subject of these sequences to engage in sexual activity outside Australia, contrary to s 272.15A(1) of the Criminal Code. The respondent’s liability for this offence was based on his communications with Pretty between 4 November 2022 and 6 November 2022 via the Skype platform, which are summarised in the facts above.

Sequence 13 - procuring Natasha and Lydia contrary to s 272.15A of the Criminal Code (Sequence 12 – offence of procuring taken into account on a schedule)

61. Sequence 13 relates to the respondent engaging in conduct with the person using the Skype handle “Franklina” with the intention of making it easier to procure Natasha, whom the respondent believed to be 9 years old, to engage in sexual activity outside Australia, contrary to s 272.15A(1) of the Criminal Code. The respondent’s liability for this offence was based on his communications with Franklina on or about 24 November 2022 via Skype. On that date, the respondent told Franklina that he “might have another young girl for you. She is 9 and hot”. The respondent sent Franklina a “small top up” and told Franklina that she was “special” to him and “[t]hat is why I try to send little girls to you”.

62. In sentencing for sequence 13, the sentencing judge took into account sequence 12 on a form in accordance with s 16BA of the Crimes Act 1914.

Sequence 12

63. Sequence 12 concerned the respondent engaging in conduct in relation to the person using the Skype handle “Franklina” with the intention of making it easier to procure Lydia, whom the respondent believed to be 11 years old, to engage in sexual activity outside Australia, contrary to s 272.15A(1) of the Criminal Code. The respondent’s liability for this offence was based on his communications with Franklina between about 11 October 2022 and 27 October 2022 via Skype.

64. On 11 October 2022, the respondent told Franklina that he had been speaking to a girl, Lydia. He asked Franklina whether he should give her Lydia’s number and indicated that she was a “real slut” and was aged 11. The respondent provided Franklina with Lydia’s number and told Franklina to “[t]alk dirty to her, she loves it and she loves porn”.

Sequence 19 - procuring child contrary to s 272.15A of the Criminal Code

65. Sequence 19 concerned the respondent grooming the person using the Skype handle “Diana” with the intention of making it easier to procure an unknown person, whom the respondent believed to be a child aged 4 or 5 years old, to engage in sexual activity outside Australia, contrary to s 272.15A(1) of the Criminal Code. The respondent’s liability for the offence was based on his communications with Diana via Skype between 18 and 19 November 2022.

66. On 18 November 2022, the respondent asked Diana the age of the girl she was looking after, to which Diana said “4-5 years old my love”. The respondent suggested that she was “[a] bit young to have much fun with but it could be interesting”. After Diana indicated that “she loves making fun with me”, the respondent told Diana that he liked “little girls” and asked whether the girl likes “sex fun”, to which Diana said “[y]es”. The respondent then said the following:

“That's really good love. I am looking forward to seeing her.

Little girls that age are very sexy. I tell no one anything. I would love to see her naked”

67. On 19 November 2022, the respondent asked Diana to “[s]end a pic” of “[t]he small girl that you enjoy yourself with”. Diana told the respondent that she did not have a picture but that she would let the respondent see her over video. The respondent replied that he “would love to have a little girl about 4 or 5 to play with”.

Proceedings on Sentence

68. The proceedings on sentence took place on 28 August 2024. Both parties provided written submissions and made oral submissions to the court.

69. The Crown tendered a sentence bundle, which comprised a Crown sentence summary, a notice of committal, court attendance notices, a statement of agreed facts, the respondent’s criminal history and custodial history reports, and the respondent’s breach file in relation to the offence of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900.

70. Tendered on behalf of the respondent was a psychological report prepared by Patrick Sheehan dated 11 April 2024, a geriatrician report prepared by Dr Catriona Ireland dated 21 May 2023, an extract of the respondent's Justice Health records and a character reference prepared by the respondent's sister Judith Cuthbert dated 6 May 2024.

Sentencing

71. In English DCJ’s sentencing remarks, her Honour considered the geriatrician report prepared by Dr Ireland when assessing the respondent’s health issues and possible cognitive decline (at p 16):

“His health issues include hearing loss and is causing him difficulty whilst he has been in custody and he is reliant on other inmates. Since his incarceration he has been diagnosed with hypertension. He suffers from an enlarged prostate. He is otherwise in good health.

In 2023 a geriatrician assessed the [respondent] whilst he was in custody. That was for the purpose of assessing his fitness to stand trial. She noted the hearing loss but also an unsteady gait which she considered was most likely due to a lack of exercise along with ageing. He reported to her he had fallen when his right knee gave way. He was not using any walking aid. She considered physiotherapy assessment would be of assistance. She found him to be unsteady on his feet and prone to overbalancing when he got up and moved around.

She considered he might be suffering from some mild age related cognitive decline. Following the Addenbrooke’s Cognitive Examination she found the [respondent] to be assessed as having a mild cognitive impairment. His ability to live independently and to drive prior to his incarceration indicated an absence of any significant cognitive impairment. She described the [respondent] as an elderly gentleman at risk of falls with mild cognitive impairment and a very significant hearing loss.”

72. Her Honour made the following findings in relation to the nexus between the respondent’s mild cognitive decline and his offending on the basis of the psychological report prepared by Mr Sheehan (at pp 17-18):

“In terms of a possible nexus between his mild cognitive decline and his offending there is no clear answer in the opinion of Mr Sheehan. In general terms, Mr Sheehan was of the view that when an offender has no offence history but begins behaving in an abnormal or disinhibited fashion late in life then there exists the possibility of dementia playing a role by reason of the impairment or functioning of the frontal lobe in ways that cause the normal processes of inhibition to fail.

Whilst he cannot exclude that that process was occurring in the [respondent] he found that he showed adequate self-control during the interview, was not impulsive and did not use profane or bawdy language which would have been expected if there were cognitive decline.

The highest it was put by Mr Sheehan was that his decline may have relevance to his cognitive inflexibility and inability to see that this online sexual talk was connected in a very real way to his earlier offending of viewing child abuse material in 2022.

There were no compelling indicators of a diagnosable personality disorder although in the opinion of Mr Sheehan there were some potential traits of schizoid personality present such as low emotionality, disinterest in social interaction, and indifference to praise or criticism.

There were no features of antisocial personality orientation.

In the opinion of Mr Sheehan the [respondent]’s behaviour constitutes a disordered sexual behaviour showing specific deviant sexual interest in young female children occurring repeatedly over a period of years therefore a diagnosis of paedophilic disorder non-exclusive interest in females was the appropriate diagnosis to make.

In the opinion of Mr Sheehan, the [respondent] will be ineligible for community corrections community services treatment programs due to his hearing impairment. His cognitive inflexibility is also a barrier to effective treatment engagement.”

73. Her Honour proceeded to make the following findings as to the respondent’s subjective case (at pp 22-23):

“The [respondent] himself demonstrates little or no insight nor contrition despite having attended a counsellor in April 2022 when he was said to have developed insight. That is clearly not the case.

He informed Mr Sheehan that he was simply going along with what was being said by others with who he was communicating when the reality was, he was the one instigating the conversations and it was he who was masturbating in the presence of these children.

The [respondent] did enter pleas of guilty prior to committal however, it must be said that the pleas were a recognition of the inevitable given the strength of the Crown case.

General deterrence is of significant importance when sentencing for offences of this nature. A message must be sent to likeminded individuals that this type of offending is abhorrent and offenders will be met with condign punishment to reflect the legislature's and the community's attitude for offending involving children, particularly very young children.

There is also a need for specific deterrence. This offender has shown a blatant disregard for court orders, failing to comply with his reporting requirements and breaching a community corrections order by committing offences of a similar nature although more serious.

His prospects for rehabilitation I find, are guarded despite his age. His inability to demonstrate insight or contrition impacts upon his prospects. He has already attended a treatment program but clearly that had little or no impact upon him. He has reoffended in a more serious way than previously.”

74. And further (at pp 24, 30):

“Having regard to his great age it has not been suggested that any sentence imposed on him needs to take into consideration any family or dependants. On the evidence it would seem his children are grownups and he lived alone. He is no longer married.

I reject the submission that the [respondent] cooperated with police. He had only one device as I understand it, an iPad. Police are well able to access data in such devices without the cooperation of an offender. Any assistance offered was limited in the extreme.

…

I am unable to find him genuinely remorseful or contrite. I find he has guarded prospects for rehabilitation and that here is a significant risk of him reoffending in a like manner given his lack of insight into his offending behaviour.”

75. Her Honour made the following general findings which relate to the seriousness of the respondent’s offending behaviour (at pp 22-23, 25):

“The personal circumstances of the victims cannot be known but it goes without saying that victims of child sexual offences suffer enormously as a result.

The damage done to those children is incalculable. It is not known if they are rescued, supported, or receive treatment, for they are left to suffer either physically if they injured in any way or at the very least, psychologically. Little is known about the circumstances of these victims.

…

The offending took place over a four month period. It was not spontaneous nor opportunistic as has been submitted. The submission that the [respondent] was in some way manipulated by others, and whilst I have chosen not to read out all of the messages contained in the annexures they clearly demonstrate the [respondent] is the instigator of many of these conversations including as going so far as to introduce Lydia to Franklina and to another likeminded person named Tina. That in no way could be said to be opportunistic or spontaneous.

There can be no doubt that the [respondent] was engaging in this online offending for his own sexual gratification even if he is unwilling to admit as much.”

76. More specifically, her Honour found sequence 10 to be “an objectively serious example of this type of crime”, sequences 13 and 19 were described as “objectively serious”, and the offending which occurred in the presence of adults was made “more objectively serious”.

The Grounds of Appeal

77. The respondent concedes that all the appellant’s grounds of appeal are established and does not argue against the Court exercising its residual discretion and moving to resentence the respondent. For these reasons, I will briefly canvas my reasons for allowing the appeal.

Ground 1 – the sentencing judge erred by imposing an aggregate sentence for sequences 10 and 11 contrary to s 16AAA of the Crimes Act 1914

78. By ground 1, the appellant complains that the sentencing judge erred by imposing an aggregate head sentence that was less than 50 percent of the mandatory minimum sentence in relation to sequences 10 and 11, contrary to s 16AAA of the Crimes Act 1914. That is accepted by the respondent and is plainly correct.

79. Sequences 10 and 11 are both offences contrary to s 272.11(1) of the Criminal Code, to which s 16AAA of the Crimes Act 1914 attaches a mandatory minimum sentence of 7 years.

80. Section 16AAA relevantly provides:

16AAA Minimum penalties for certain offences

Subject to section 16AAC, if a person is convicted of an offence described in column 1 of an item in the following table, the court must impose a sentence of imprisonment of at least the period specified in column 2 of that item.

| Minimum penalty | | Item | Column 1 Offence | Column 2 Sentence of imprisonment | | … | | 6 | offence against section 272.11 of the Criminal Code | 7 years |

81. Section 16AAA is subject to s 16AAC, which relevantly provides:

“16AAC Exclusions and reductions—minimum penalties

…

(3) If a court may reduce a sentence, the court may reduce the sentence as follows:

(a) if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty—by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;

(b) if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of:

(i) in relation to any of items 1A to 1E of the table in section 16AAA—the offence or an offence against subsection 80.2H(1) or 80.2HA(1) or Part 5.3 or 5.5 of the Criminal Code; or

(ii) in relation to any of items 1 to 15 of the table in section 16AAA or any of the items in the table in subsection 16AAB(2)—the offence or a Commonwealth child sex offence; by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;

(c) if the court is taking into account both of the matters in paragraphs (a) and (b)—by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table.”

82. As can be seen from s 16AAC, the absolute minimum sentence of imprisonment that a sentencing judge may impose below the mandatory minimum is 50 percent of that mandatory minimum, applicable in circumstances where the offender has pleaded guilty and has cooperated with law enforcement agencies.

83. The aggregate sentence imposed by the sentencing judge was 3 years and 4 months imprisonment. As the appellant contends, that is less than 50 percent of the mandatory minimum of 7 years which applied to sequences 10 and 11. The aggregate sentence imposed for those offences is, consequently, contrary to law.

84. Ground 1 is established.

Ground 2 – the sentencing judge erred by imposing an indicative sentence for sequence 9 contrary to s 16AAC of the Crimes Act 1914

85. By ground 2, the appellant complains that the sentencing judge erred by imposing an indicative sentence for sequence 9 that was 25 percent less than the mandatory minimum sentence that was applicable. While no indicative sentence was “imposed”, the parties proceeded as if “imposed” was read as “nominated”.

86. Sequence 9 is an offence contrary to s 272.14(1) of the Criminal Code to which s 16AAB of the Crimes Act 1914 attaches a mandatory minimum sentence of 4 years in circumstances where the offender has previously been convicted of a child sexual abuse offence, as was the case here.

87. As noted above, at the time of the offences, the respondent had been convicted of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900. Section 91H(2) is a State registrable child sex offence and thus a child sexual abuse offence: Crimes Act 1914, s 3(1) “child sexual abuse offence”, s 16AAB(1)(b).

88. Section 16AAB relevantly provides:

16AAB Second or subsequent offence

(1) This section applies in respect of a person if:

(a) the person is convicted of a Commonwealth child sexual abuse offence (a current offence); and

(b) the person has, at an earlier sitting, been convicted previously of a child sexual abuse offence.

(2) Subject to section 16AAC, if the person is convicted of a current offence described in column 1 of an item in the following table, the court must impose for the current offence a sentence of imprisonment of at least the period specified in column 2 of that item.

| Minimum penalty | | Item | Column 1 Offence | Column 2 Sentence of imprisonment | | … | | 5 | Offence against subsection 272.14 of the Criminal Code | 4 years |

89. The minimum period of imprisonment available, assuming the application of the maximum discounts of 25 percent each for the plea of guilty and the co-operation respectively, was 2 years. Here, however, the respondent conceded that while he was entitled to a 25 percent discount for his plea of guilty, he was not entitled to any discount for co-operation. In these circumstances, the minimum sentence available was 3 years, or 75 percent of the mandatory minimum sentence. The nominated indicative sentence of 2 years was not available. That is an error in nominating an indicative sentence, an error which potentially impacted the determination of the aggregate sentence.

90. Ground 2 is established.

Ground 3 – manifest inadequacy

91. By ground 3, the appellant complains that the sentences imposed in respect of sequences 9, 10, 11, 13 and 19, together with the orders for cumulation and the non-parole period, are manifestly inadequate.

92. It was not in issue that sentences of imprisonment were appropriate. That is, alternatives to imprisonment such as disposition without conviction pursuant to s 19B of the Crimes Act 1914, or the deferral of sentence pursuant to s 20(1)(a) of that Act, were not suggested by the parties to be appropriate (noting the mandatory minimum sentence provisions do not necessarily exclude these alternatives: see Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485 at [35], [99]-[100]). That being the case, the aggregate sentence, being less than the mandatory minimum sentence for sequences 10 and 11, is necessarily outside the available range.

93. Ground 3 is established.

Residual Discretion

94. When exercising jurisdiction under s 5D of the Criminal Appeal Act, this Court is required to consider whether, even though the sentence at first instance is manifestly inadequate, it should, in the exercise of its discretion, intervene with the respondent’s sentence: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [26]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. The onus is on the Crown to “negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised”: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [34] per French CJ and Gageler J and at [56] per Kiefel, Bell and Keane JJ, quoting R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 at [12]; see also Danishyar v R; R v Danishyar [2023] NSWCCA 300 at [113].

95. Even though the respondent conceded that the Court should exercise its discretion to intervene, it remains for this Court to determine the matter for itself. The most significant factor relevant to the exercise of the discretion is that the sentence imposed at first instance is contrary to the requirements imposed by the legislature. Insofar as the respondent’s age may be a factor which militates against intervention, I would not give this significant weight given that, as the Crown submitted, the respondent was already of advanced age when he offended. That the respondent’s non-parole period has expired would ordinarily be a significant factor in favour of dismissing the appeal. It is also relevant that the total sentence is due to expire mid-next year. However, given the sentence imposed at first instance, in the particular circumstances of this case, the respondent can have had no reasonable expectation it would be maintained. Ultimately, the imposition of a sentence contrary to legislative requirements is an affront to the administration of criminal justice. This Court should exercise its residual discretion to intervene and resentence the respondent according to law.

Evidence on Resentence

96. As a result of my conclusions above, it is necessary to re-exercise the sentencing discretion having regard to the further evidence admitted for this purpose.

97. On resentence, the respondent referred to the psychological report prepared by Mr Sheehan dated 11 April 2024 and the geriatrician report prepared by Dr Ireland dated 21 May 2023, both of which were before the court in the original sentencing proceedings. The respondent further relied on an affidavit of his solicitor and his own affidavit.

98. The affidavit of the respondent’s solicitor annexed extracts of the respondent’s Justice Health records, email correspondence with the Acting Nursing Unit Manager at South Coast Correctional Centre, the respondent’s custodial history report, a pre-release report prepared by Corrective Services NSW dated 20 January 2025, and an order made at Nowra Local Court on 4 December 2024 pursuant to the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) in respect of the respondent. The affidavit also annexed documents that relate to the management of inmates in the care of Corrective Services and Justice Health, including the Foreword, Executive Summary, Recommendations and Terms of Reference of the Inspector of Custodial Service’s September 2015 report, an excerpt of Corrective Services’ response to the Inspector’s recommendations, an excerpt of Justice Health’s response to the Inspector’s recommendations, the Corrective Services and Justice Health policy for the placement and management of aged and frail inmates in June 2016, and the Inspector’s 2021 report on Health Services in NSW correctional facilities.

99. The respondent’s Justice Health records include entries referring to the respondent's continuing hearing difficulties. The email correspondence confirms that the respondent received new hearing aids on 20 January 2025.

100. The Corrective Services NSW pre-release report was prepared in circumstances where the respondent became eligible for parole on 6 December 2024. As previously noted, while release to parole was recommended, the pending appeal may have influenced the decision not to release him to parole. The author reported that the respondent “maintains a poor attitude towards his offending” and had been assessed by a CSNSW psychologist as having an average risk of sexual recidivism based on the Static-99R actuarial risk assessment. The author also reported that the respondent normalised his attraction to children. In speaking with the author, the respondent said he finds “young women” sexually attractive and later clarified this as being an attraction to girls up to the age of 12. He indicated that he did not believe any children were harmed as a result of his actions, particularly as they were online and not in person, and that their age made them “oblivious” to what was going on, therefore there was “no real damage”. The author opined that the respondent was easily influenced by others online and sought out like minded individuals in pursuit of accessing child abuse material.

Resentence

105. With respect to the federal offences, I intend to proceed by way of an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act. It is necessary, in order to do so, to first determine the sentence I would have imposed for each offence if I were not imposing an aggregate sentence.

Objective seriousness

106. The appellant’s concession in this Court that there was no actual child involved in sequences 9, 13 and 19 requires the objective seriousness of these offences to be revisited. My view is that, with respect to sequences 10 and 11, the respondent should be sentenced on the basis that no more can be established than that the child was less than 16 years old. This similarly requires the objective gravity of these offences to be revisited.

107. With respect to objective seriousness, it should be made clear at the outset that all the offences are objectively serious. That much is obvious from the maximum penalties provided, the applicable minimum terms of imprisonment and the facts.

108. Further, even if, in the case of sequences 10 and 11, no more can be established than that the children were less than 16 years old, there was in these cases still a very significant age gap between the child and the respondent. The offences are thus significantly more serious than a case in which the offender is close in age to the child. The difference between the believed age of the “child” and the respondent is also relevant to the objective seriousness of the remaining offences. In making this observation I do not suggest that the advanced age of the respondent added to the gravity of the offending. Clearly, at a certain point in adulthood the increase in the offender’s age, and the corresponding increase in the age differential, ceases to be material.

109. Acknowledging the above, in each case there are, however, features of the offending that distinguish the offence from the most serious case.

110. Sequence 9 is an offence of procuring a child to engage in sexual activity outside of Australia contrary to s 272.14(1) of the Criminal Code. With respect to this offence, while the respondent believed the child to be 9, I am not satisfied that the respondent was in fact dealing with a child. I am of the view that it is unlikely that he was. Further, the contact was remote. The offending would be more serious had the respondent been in direct physical contact with the “child”. Relatedly, the contact was by way of text messages over Skype. I am not satisfied that the activity sought to be procured was actually engaged in. The offending was, however, engaged in with an intention to procure the activity. The activity sought to be procured was serious, but not at the most serious level. The contact occurred on four separate occasions between 22 November and 15 December 2022. As a result of the extent of the contact, I would not regard this offending as being at the least serious example of offending against s 272.14(1) but would not regard it as significantly above it.

111. Sequence 10 is an offence of persistent sexual abuse of a child contrary to s 272.11(1) of the Criminal Code, based on five offences against s 272.9(1) of engaging in sexual activity other than sexual intercourse with a child under 16. There were five such offences, which is more than the minimum of two required to make out the offence. The victim was in fact a child under 16 (that being an element), however, I am not satisfied that the child was any younger than that. It remains relevant, however, that the respondent believed her to be 11 years old. As above, the contact was remote rather than in person. While the contact was remote, the child was able to see the respondent, at least at times, while he engaged in sexual activity, although he could not see her. The sexual activity was serious, noting that the s 272.9(1) offence does not apply to sexual intercourse and also accepting that the activity was limited by the fact that the offence was committed remotely. While serious, it is well short of the most serious case of offending against s 272.11(1).

Subjective considerations

116. I have regard to the respondent’s subjective circumstances. The most significant factor is his advanced age and health, which must be taken into account. Nonetheless, a sentence “of a severity appropriate in all the circumstances of the offence” must be imposed: s 16A(1) of the Crimes Act 1914. The circumstances here include the maximum and mandatory minimum sentences of imprisonment.

117. In Liu v R [2023] NSWCCA 30; (2023) 306 A Crim R 105 at [39], Campbell J set out the relevant sentencing principles in relation to offenders of advanced age as follows:

“As I have pointed out there is no disagreement between counsel about the relevant principles to be applied. In my opinion they are, with respect, accurately and well summarised by Steytler P in Gulyas v Western Australia at [54]. I will set out the passage in full:

‘It seems to me that the following broad general principles might be extracted as being ordinarily applicable in a case such as the present:

(1) Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor.

(2) Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this.

(3) Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release.

(4) Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.’”

118. In the present case, despite suspicions as to the possibility, which were adverted to in the psychological report of Mr Sheehan, the respondent did not submit that there was available evidence on which the Court could find a link between his age related decline and the offending. The respondent did submit that the onerousness of custody for him, including in relation to his hearing difficulties, his lack of access to programs and entertainment, and him being housed in protective custody, was a “weighty consideration” on sentence impacting the overall formulation of an appropriate head sentence and the non-parole period. Further, the respondent’s belief that he is likely to live out his last days in custody, which results in imprisonment without hope, also adds to that burden. I accept that his imprisonment will bear more heavily on him as a result of these considerations. I also accept that the general public would understand why some leniency has been extended to the respondent, reducing, though not to a significant extent, the weight to be given to general deterrence.

119. I have regard to the respondent’s prior record. The prior offence of possession of child abuse material committed in 2021 informs the need for specific deterrence. That the respondent was on conditional liberty as a result of that prior matter at the time of the relevant offending additionally informs the need for specific deterrence, as well as the need for denunciation, and ultimately, punishment. It is, further, difficult to ameliorate the weight to be given to specific deterrence on the basis of age, as was submitted by the respondent, given the age at which he committed the offences. I would however, despite the prior offence committed by the respondent, not entirely disregard the respondent’s lack of any criminal record prior to 2021. There is significance in the respondent having lived, worked and contributed to the community without blemish until the age of 85. His good character over those years remains deserving of some weight.

120. It was accepted by the respondent that he was not entitled to any discount for co-operation. He is entitled to a discount for his guilty pleas, consistent with s 16A(2)(g) of the Crimes Act 1914. The parties agreed that a discount of 25 percent would be appropriate. That position was, however, taken before the issue was raised in relation to the ability of the prosecution to prove sequences 10 and 11. Admissions to offences that could not have otherwise been proved usually attract significant discounts on the basis of co-operation with authorities: see R v Ellis (1986) 6 NSWLR 603, Panetta v R [2016] NSWCCA 85. Section 16AAC(3)(b), where it applies, provides a limit to the nature of co-operation which can be taken into account. In the circumstances of this case, where it was not suggested the respondent was entitled to a discount for co-operation, I will proceed on the assumption that the pleas of guilty in the particular circumstances here were not with “law enforcement agencies in the investigation of” a relevant offence within s 16AAC(3)(b).

Synthesis

122. I have regard to the maximum and minimum sentences of imprisonment available. Each operates as a yardstick. Here, the circumstances of the offences and of the offender are such that the offences are well removed from the worst case, reducing the significance of the maximum penalty. There is no issue that in the present case sentences of imprisonment must be imposed. The mandatory minimum sentence operates as a yardstick “representing the least worst category of case for which a sentence of imprisonment is required”: Hurt v The King, per Gageler CJ and Jagot J at [33]; see also at [105], [107] per Edelman, Steward and Gleeson JJ.

123. In relation to sequences 10, 11 and 13, I take into account the further offences on the schedules. I do so by giving greater weight to specific deterrence and retribution for the primary offences. Having regard to the nature of the offences, general deterrence and denunciation are of significance. The indicative sentences I would have imposed are set out below.

124. In relation to sequence 9, against a maximum penalty of 15 years imprisonment, and a minimum of 4 years, I would start with a sentence of 4 years and 6 months. Discounted by 25 percent, this results in a sentence, when rounded, of 3 years and 4.5 months. I would round this figure down to 3 years and 4 months (noting the result is not less than 3 years, which is 75 percent of the minimum sentence of 4 years).

125. In relation to sequence 10, against a maximum penalty of 30 years imprisonment, with a minimum of 7 years, and taking into account sequences 8 and 15, I would start with a sentence of 9 years. Discounting by 50 percent results in a sentence of 4 years and 6 months. This is less than the statutory floor, with the result that I would impose a sentence of 5 years and 3 months.

126. In relation to sequence 11, I have assessed that offence as of similar objective gravity to sequence 10. I would not differentiate between those offences based on the different Form 1 offences attached to them. In relation to sequence 11, taking into account sequence 14, I would also have imposed a sentence of 5 years and 3 months.

127. In relation to sequence 13, against a maximum penalty of 15 years imprisonment, and a minimum of 4 years, and taking into account the offence on the schedule, I would start with a sentence of 4 years and 6 months. Discounted by 25 percent, this results in a sentence, when rounded, of 3 years and 4 months.

128. In relation to sequence 19, I have assessed this offence as objectively more serious than sequence 13, another offence against s 272.15A(1). That is counterbalanced by the presence of the offence on the schedule attached to sequence 13. I would, as a result, engage the same starting point, resulting in a sentence of 3 years and 4 months.

129. In determining the aggregate sentence, the default position is for the sentences to be served cumulatively: s 19(5). The appellant did not submit this was appropriate in this case. Fully cumulative sentences would produce a disproportionate total sentence. I am satisfied that imposing partially concurrent sentences will still result in sentences that are of a severity appropriate in all the circumstances: s 19(6). The appellant did submit that there should be some (notional) cumulation of the indicative sentences but accepted that it need not be substantial. It is important when engaging in this exercise to remember that, if actual, rather than indicative, sentences were being set, the limit of any cumulation would be determined by the non-parole period, not the full term of the individual sentence.

The State offence

133. There was no appeal against the sentence imposed for the State offence. No order should be made. The sentence of 1 year imposed in the District Court expired on 6 February 2024. I would not interfere with the commencement date of the federal offences so as to increase the effective punishment for the State offence.

Orders

134. I propose the following orders:

135. The appeal is allowed.

136. The aggregate sentence imposed on the respondent by English DCJ on 15 November 2024 is quashed and in lieu thereof the respondent is resentenced as follows:

(a) In relation to sequences 9, 10, 11, 13 and 19 and having regard to the offences on the schedules attached to sequences 10, 11 and 13 in accordance with s 16BA of the Crimes Act 1914 (Cth), pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), an aggregate sentence is imposed. The respondent is sentenced to a term of imprisonment of 8 years with a non-parole period of 4 years commencing on 7 February 2023. The non-parole period will expire on 6 February 2027 and the head sentence will expire on 6 February 2031.

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