(6) The steps taken by the applicant to preserve his anonymity - the use of a false name "Dan" , the anonymous use of email addresses and the use of public telephones.
95 Communications that fall within s.474.26 may, of course, relate to a range of proposed sexual activity between sender and recipient of varying degrees of seriousness as the definition of "sexual activity" indicates: s.474.28(11).
96 A communication, for example, that expresses an intention to engage in sexual intercourse in contrast to some lesser form of sexual activity is a relevant circumstance in the assessment of the gravity of an offence.
97 However, a communication that contravenes the section may be deliberately or strategically expressed in terms that propose a lower level of sexual activity in order to enhance the prospects of initially establishing a relationship between the sender and the recipient and/or to disguise an existing intention to engage in a more serious level of sexual activity than that proposed. In other words, what may be termed a "low level" of proposed sexual activity may be considered by a "sender" to be more effective in encouraging, enticing or inducing etc a child than one that blatantly conveys a high level of sexual activity.
98 It may, on the facts of a particular case, be open to a sentencing judge in assessing the gravity of a s.472.62(1) offence, not to accept the terms of a communication as a true reflection of the level of sexual activity the sender had in mind, at least where, for example, the "sender" has a relevant history of serious past offending involving sexual activity with children. In other words, the terms of a communication may, but may not always be fully accepted on their face in the assessment of the gravity of an offence under the section.
99 With these considerations in mind, the sentencing judge was correct in having regard to the nature of the offence at which the legislation was directed. It was appropriate for him to consider the nature of the proposed sexual activity in this case as one amongst other factors to be taken into account in assessing the objective seriousness of the offending.
100 The evidence in the present proceedings establishes that the circumstances of the offences were, in a number of respects, significantly different from the Queensland cases examined above. In particular, the applicant was convicted after a trial on three counts under s.474.26(1) and he had prior convictions for actual sexual conduct and there had been no demonstrated commitment by him to receiving treatment or rehabilitation.
101 Whilst the terms of the communications may not have been as explicit as those in certain of the abovementioned cases, their terms (proposing specific sexual activity to a 12 year old) must be considered as a serious breach of s.474.26(1).
102 An important matter which the sentencing judge was required to (and did) have regard to was the maximum penalty prescribed of 15 years imprisonment. This stands in contrast to the maximum penalty of five years imprisonment under s.218A of the Criminal Code (Q) if the child is under the age of 16 years and 10 years imprisonment, if the person is under 12 years.
103 The evaluation of the criminality of an offence is for the sentencing judge to determine upon the relevant evidence in relation to the crime. This requires the court to assess the seriousness of the offence. The maximum penalty for an offence may operate as a yardstick and may, in relation to certain offences, assume particular significance.
104 In Regina v H (1981) 3 A Crim R 53, Street CJ (dissenting in the result) observed (at 65):-
"… deterrence and community disapproval of various crimes, such disapproval carrying with it an expectation by the community of punishment, are accepted aspects of sentencing. The term of imprisonment prescribed by the relevant section of the Crimes Act is the public expression on these matters through the legislative process. It is for the judge to determine how important they are in a particular case but always by reference to the seriousness of the crime itself as pronounced by the penalty provided by the statute."
105 Recently, the significance of the maximum penalty for an offence as a "yardstick" was discussed by Gleeson CJ, Gummow, Hayne and Callinan JJ in their joint judgment in Markarian v The Queen (2005) 228 CLR 357 in particular, at [30] and [31]. Their Honours said:-
"30. Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book sentencing, Stockdale and Devlin observed that:-
'A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century … or because it has more recently been set at a high catch-all level … At other times, the maximum may be highly relevant and sometimes may create real difficulties …
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].
31. It follows that careful attention to maximum penalties will almost always be required, first, because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before court at the time; and thirdly, because in that regard, they do provide, taken and balanced with all of the other relevant factors, a yardstick …"
106 In relation to an offence under s.474.26(1), a sentencing judge, in my opinion, is required to give careful attention to the fact that the federal legislature has prescribed a maximum penalty for an offence under the section of 15 years imprisonment and that that, of itself, is a distinguishing aspect to those cases decided under s.218A of the Criminal Code (Q).
107 The question remains as to whether or not, having regard to all of the relevant circumstances, including the maximum penalty for an offence under s.474.26(1), the sentence imposed by the sentencing judge in the present case of a sentence of 11 years imprisonment with a non-parole period of seven years for each of the three offences was manifestly excessive.
108 In my assessment, the circumstances referred to in paragraph [94] characterise the offence as an objectively serious one. Applying the maximum penalty of 15 years as a yardstick for the present case, I consider that, although the offences fall short of what would be considered to be the most serious type of offence under s.474.26(1), they are nonetheless offences involving grave criminality. On that basis, I am of the opinion that the sentencing judge's assessment of 11 years with a non-parole period of 7 years is outside the appropriate range for a case of this kind. I am, however, of the opinion that they warrant substantial sentences, having regard, in particular, to considerations of individual and general deterrence. It follows that it will be necessary for the sentence in question to be set aside and for this Court to re-sentence the applicant.
109 In the event that this Court did come to re-sentence, the applicant sought to rely upon his own affidavit sworn 18 May 2008.
110 The Crown objected to the affidavit as it had only been recently received and time had not permitted enquiries to be made with the Junee Correctional Centre where the applicant was currently serving his sentence. The particular matter the Crown indicated concern about was the statement in the affidavit (paragraph [2]) that he did not have access to counselling.
111 On 2 June 2008, the Crown filed an affidavit of Rachael Anderson of the Commonwealth Director of Public Prosecutions, sworn 2 June 2008. That affidavit attached a letter from Dom Karauria, the General Manager of the organisation that operates the Junee Correctional Centre. A copy of Ms Anderson's affidavit has been sent to the applicant's solicitor.
112 Mr Karauria states in his abovementioned letter that the applicant was received at the Centre as a Protection Requiring Limited Association (PRLA) inmate. He also stated in respect of such inmates:-
"They also have access to one-on-one counselling services where they can submit a form at any time to be seen by a counsellor as soon as the counsellor is available."
113 Mr Karauria also stated that such inmates have limited access to employment but that the applicant had not completed his "Pre-Employment Course" to be eligible to obtain work.
114 On 10 June 2008, pursuant to directions given by the Court, a letter was sent to the Registrar of the Court by the applicant's solicitor. In that letter, it is stated that the applicant presses the affidavit filed on behalf of the applicant at the hearing and essentially accepts that he has access to a counsellor in accordance with Mr Karauria's letters.
115 I am of the opinion that an appropriate sentence for each offence to be a head sentence of eight years imprisonment with a non-parole period of five years.
116 Accordingly, I propose the following orders:-