Kannis v R

1. [1]

   JOHNSON J: By Notice of Application for Leave to Appeal filed on 29 January 2020, the Applicant, Orion Kristopher Kannis, seeks leave to appeal against sentences imposed at the Sydney District Court on 4 June 2019 for a number of child pornography and grooming offences under the Criminal Code (Cth) and the Crimes Act 1900 (NSW).

2. [2]

   As will be seen, the Applicant’s offences involved communications by him with girls, at least some of whom were aged 14 years. The victims will be referred to by pseudonyms in this judgment to maintain the protection against identification to which each is entitled at law: s.15A Children (Criminal Proceedings) Act 1987 (NSW). Without wanting to depersonalise the victims, the pseudonyms will utilise letters of the alphabet.

3. [3]

   This is an unusual case where a troubled and immature 18-year old committed, between August 2016 and March 2017, serious cybersex offences involving real victims whom he manipulated, threatened, humiliated and embarrassed for his own purposes. The issues raised by the appeal involve consideration of sometimes conflicting purposes of sentencing which arise when a young offender is sentenced for serious offences committed against other young persons.

The Offences and Sentences

1. [4]

   Following pleas of guilty, the Applicant was sentenced for offences set out in the following table:

2. [5]

   When passing sentence for the offence in Sequence 4, the Applicant requested the Court to take into account under s.16BA Crimes Act 1914 (Cth) a further offence:

3. [6]

   Her Honour stated that the sentences for Sequences 3, 4 and 9 were “indicative sentences” for the purpose of an “aggregate sentence” of imprisonment for two years and six months commencing on 4 June 2019 with the Applicant to be released on 3 September 2020, after serving 15 months’ imprisonment upon him entering into a recognizance in the sum of $1,000.00 to be of good behaviour for three years.

4. [7]

   The sentencing Judge recommended that the Applicant undergo psychological counselling as part of his recognizance and that, whilst in custody, he be entered into the Young Offenders’ Program.

5. [8]

   The hearing was conducted in this Court upon the basis that aggregate sentencing (under s.53A Crimes (Sentencing Procedure) Act 1999 (NSW)) applies to State offences only and that there is no provision for aggregate sentencing for Commonwealth offences. Rather, where sentences of imprisonment for several Commonwealth offences do not exceed three years in the aggregate, and the offender is not already serving a sentence for a Commonwealth offence, a sentencing court must make a recognizance release order in respect of those sentences and must not fix a non-parole period: s.19AC(1) Crimes Act 1914 (Cth).

6. [9]

   The parties approached the appeal upon the basis that the total effective sentence for the Commonwealth offences and the State offence comprised imprisonment for two years and six months commencing on 4 June 2019 and expiring on 3 December 2021 with the Applicant to be released by way of recognizance release order after 15 months’ imprisonment on 3 September 2020 upon entering a recognizance to be of good behaviour for a period of three years.

7. [10]

   This Court has determined that aggregate sentencing under s.53A Crimes (Sentencing Procedure) Act 1999 (NSW) is available where a court is to impose sentences for several Commonwealth offences: Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [141]-[146]. In particular, Price J (Basten JA and Walton J agreeing) said at [145]-[146]:

8. [11]

   Accordingly, aggregate sentencing was an available option in this case for the Commonwealth offences. However, the problem with the form of sentencing orders in this case arises from the formal entry of orders made in JusticeLink, which constitutes the official record of the sentencing orders: Part 53 Rule 12 District Court Rules 1973 (NSW); Ghalbouni v R [2020] NSWCCA 21 at [45]. According to JusticeLink, a separate sentence of imprisonment for 30 months was imposed for each of Sequences 3, 4 and 9 with each sentence to be partially suspended after 15 months. That does not appear to have been the intention of the sentencing Judge. Rather, her Honour nominated terms of imprisonment for each of Sequences 3, 4 and 9 with a process of notional accumulation to operate giving rise to an aggregate sentence of 30 months.

9. [12]

   If this Court finds error has been demonstrated and moves to resentence the Applicant, the sentencing orders of this Court will need to accord with the provisions of the Crimes Act 1914 (Cth).

Grounds of Appeal

1. [13]

   The Applicant relies upon the following grounds of appeal:

Facts of Offences

1. [14]

   An Agreed Statement of Facts was tendered at the sentencing hearing from which the following account is drawn.

2. [15]

   The Applicant was born in May 1998 and was aged 18 years at the time of the offences committed between August 2016 and March 2017. The offences involved the Applicant’s interaction with a number of girls, at least some of whom were then aged 14 years.

3. [16]

   The offences will be described in chronological order. In doing so, it will be necessary to include the text of some messages which passed between the Applicant and the victims. This is appropriate to allow an understanding of the tone and content of the Applicant’s communications and the impact of his messages upon the victims. However, it is also important that the insertion of messages in this judgment not operate to re-traumatise the victims by reminding them (and readers of the judgment) of the full detail of the personal and embarrassing messages which passed between each of them and the Applicant. A balance should be struck in the context of messages to be quoted with these objects in mind.

4. [17]

   The offence under s.474.17(1) Criminal Code (Cth), which was taken into account on sentence for the Sequence 4 offence, involved contact by the Applicant between August and October 2016 with persons who will be referred to in this judgment as Victims D, E, F and G.

5. [18]

   It is necessary to include examples of the Applicant’s communications with these girls to permit an understanding of their menacing, harassing and offensive content.

6. [19]

   Between about 10.54 am and 11.40 am on 8 August 2016, the Applicant and Victim D sent text messages to each other via iMessage. The Applicant spoke to Victim D from his mobile telephone.

7. [20]

   The Applicant identified himself as “John”. He explained that he needed videos and pictures so that he could put a profile together for Victim D to obtain modelling jobs. The Applicant said that the videos were “private and confidential” and were to be deleted once the profile information was obtained. The conversation continued:

8. [21]

   The Applicant told Victim D that she had “10 minutes to send the video as [he would] be leaving the office”. He said in graphic terms that she should “make it dirty” and that this was her “last chance to impress”.

9. [22]

   At 11.13 am, Victim D sent the Applicant a movie of her performing sexual acts.

10. [23]

    The Applicant replied saying “we need another video” as the first one “wasn’t dirty enough”. Victim D declined, but the Applicant pressed her saying “Are you serious” and “I was literally about to transfer 50,000 dollars to you”.

11. [24]

    Victim D asked “What would you do if I didn’t do it?’ to which the Applicant responded “Probably post your video worldwide … so I suggest you get moving”. Soon after, Victim D said “I am not okay with this so if you do posted around the world you can get in very big trouble without my permission”.

12. [25]

    The Applicant responded “Times almost up … I don’t care I’ve done it before, my lawyers are pretty powerful … I’ll get away with it … now hurry up”.

13. [26]

    Victim D replied “Please don’t do this”. The Applicant than commenced a countdown “10, 9, 8, 7, 6 …” in the course of which Victim D said “No. … Stop … No”. The Applicant said “Are you going to send it … or what?”.

14. [27]

    As the above extracts illustrate, the Applicant’s communications with Victim D were menacing, harassing and offensive.

15. [28]

    At about 2.37 pm on 17 October 2016, the Applicant started chatting with Victim E on the social media application “Kik” from his mobile telephone. The Applicant requested photographs of her legs from the hips down.

16. [29]

    Victim E sent one photograph of her legs from the knee down and one photograph from waist down.

17. [30]

    The Applicant sent one photograph of an unknown male with no shirt on and one photo of an unknown female from the waist down wearing underwear with the caption “like that aha x”.

18. [31]

    The conversation proceeded:

19. [32]

    Victim E sent a photograph depicting her stomach and waist with clothes on, but the Applicant urged her to send a more revealing photograph

20. [33]

    Victim E sent a photograph depicting her stomach and waist with clothes on. Once again, the Applicant pressed Victim E to send a more sexually explicit photograph of herself. Victim E replied “I’m not going to do it if I don’t like being used for my body”. The Applicant then offered to pay her “big money” and Victim E replied “No you can keep it. I ain’t like those other girls who would … I’m sorry I can’t continue on”.

21. [34]

    The Applicant replied “Fine then I’m gonna post ur pics everywhere then”. Victim E said “Please don’t” and the Applicant replied “If u make me feel good I won’t post any … make me feel good”.

22. [35]

    Victim E sent a photograph depicting her stomach and waist with underwear showing above shorts. The Applicant pressed her for more revealing photographs saying “I promise I’ll delete them all and won’t post them if you turn me on”.

23. [36]

    Victim E sent a photograph depicting her stomach and waist with shorts pulled lower, exposing more underwear. Again, the Applicant insisted that she send more revealing photographs.

24. [37]

    The Applicant counted down from 10. Victim E sent a photograph depicting her stomach and waist with shorts pulled lower, exposing more underwear. The Applicant pressed Victim E to send “dirtier” photographs.

25. [38]

    Victim E sent a photograph depicting her exposed stomach and underwear. The Applicant then insisted, in graphic terms, that Victim E send a video of her masturbating. The Applicant told Victim E that she should “moan” whilst performing sexual acts to which Victim E replied, “Can I please not do videos and I can’t be loud. I’ll get in trouble.” The Applicant replied, “Nope I need videos. DW about moaning tho”. The Applicant told Victim E, in explicit terms, what acts she should perform.

26. [39]

    Victim E sent a photograph depicting her exposed stomach and underwear with her hand on top of her underwear resting between her legs. Victim E expressed her clear distress in response to the repeated pressure being placed upon her by the Applicant. For his part, the Applicant responded seeking more graphic photographs.

27. [40]

    The Applicant counted down from 10 whilst speaking to Victim E in sexually explicit terms.

28. [41]

    Victim E sent a photograph depicting her exposed stomach and underwear with her hand on top of her underwear, resting between her legs. The Applicant pressed her to continue, to which Victim E replied “Please no that’s too far for me” to which the Applicant replied “Do it”.

29. [42]

    Once again, the Applicant counted down from 10. Victim E responded “Ok hold on”. The Applicant said “I’m posting them right now”. No further chatting occurred on 17 October 2016.

30. [43]

    The Applicant tried to contact Victim E again on 20 October and 29 October 2016. She did not respond.

31. [44]

    As the above extracts illustrate, the communications with Victim E were menacing, harassing and offensive.

32. [45]

    At 8.53 am on 20 October 2016, the Applicant started chatting with Victim F on the social media application “Kik”. The Applicant used “Kik” on his mobile telephone.

33. [46]

    The Applicant requested dirty photographs from Victim F.

34. [47]

    Victim F sent the Applicant six photographs of her waist down wearing only underwear.

35. [48]

    The Applicant sent Victim F 10 photographs of his penis.

36. [49]

    Victim F said "Man I gotta block u” to which the Applicant replied “Don’t u dare block me … You’ll see then … I’m posting all ur pics n stuff everywhere”. Victim F replied “No don’t”. The Applicant said “I’m posting all ur videos and pics … unless you continue on snap chat”.

37. [50]

    The conversation ceased at approximately 9.23 am on 20 October 2016.

38. [51]

    As these excerpts illustrate, the communications with Victim F were menacing, harassing and offensive.

39. [52]

    On 26 October 2016, the Applicant and Victim G chatted to each other via the social media application “Kik”. The Applicant used “Kik” on his mobile telephone.

40. [53]

    The Applicant asked for a picture of Victim G and said he would send her one of his penis. Victim G said the Applicant “can wait” and the Applicant replied “Fine then … I’ve hacked ur kik so I know ur IP address … Wait until ur parents know about the pics”.

41. [54]

    Soon after, the Applicant said “You want ur parents to see?” and Victim G said “No but u being rude and mean”. The applicant pressed Victim G to send photographs saying that, if photographs were sent, he would “delete our whole convo”.

42. [55]

    At about 8.55 am, Victim G sent a photograph of her waist down wearing no underwear. The Applicant demanded a more sexually explicit photograph be sent by Victim G.

43. [56]

    At about 8.58 am and 9.07 am, Victim G sent two photographs of her vagina. The Applicant demanded an even more explicit photograph. Victim G declined.

44. [57]

    The conversation ceased at about 9.16 am on 26 October 2016.

45. [58]

    As these excerpts illustrate, the communications with Victim G were menacing, harassing and offensive.

46. [59]

    Between about 22 October 2016 and 2 November 2016, the Applicant and Victim C sent text messages to each other via iMessage. The Applicant chatted with Victim C from his mobile telephone.

47. [60]

    On 22 October 2016, the Applicant messaged Victim C and requested photographs of her legs. She declined and said she did not have a camera.

48. [61]

    Victim C indicated to the Applicant the suburb in which she was living. The Applicant responded “we should do something soon x… would u come to mine ? and cuddle ?...What would u wanna do xx”.

49. [62]

    In the ensuing electronic conversation, the Applicant enquired, in sexually explicit terms, about masturbation and whether the girl was a virgin. Victim C told the Applicant she was 14 years old. He told her he was 18 years old and said he was keen to meet with her.

50. [63]

    The Applicant then instructed her, in explicit terms, how to masturbate while he explained what sexual acts he imagined he was performing on her and what her excited response would be to his acts. As he was saying these things to Victim C, the Applicant asked how it was feeling and whether she was excited sexually.

51. [64]

    Demonstrating an awareness that what he was doing was wrong, the Applicant then insisted that Victim C delete the conversation:

52. [65]

    Victim C then sent the Applicant a photograph showing that she had deleted the conversation.

53. [66]

    On 24 October 2016, Victim C told the Applicant that she would turn 15 in 2017 and that she was required to repeat Year 7. The Applicant responded that he would help her academically. In the ensuing conversation, the Applicant stated that he wanted to meet with Victim C so that they could have sex.

54. [67]

    On 25 October 2016, the Applicant suggested that he and Victim C meet that day. He outlined the sexual acts they might perform including his intention to teach her how to masturbate.

55. [68]

    On 28 October 2016, the Applicant enquired whether Victim C could engage with him sexually and she replied that she was not able to do so.

56. [69]

    On 30 October 2016, the Applicant told Victim C to send him photographs, but she declined to do so.

57. [70]

    The Applicant told Victim C he had bought her an iPhone 7 and “Victoria’s Secret stuff”. He said he would deliver the gifts to her once she sent him an explicit photograph. Victim C replied that she had no camera. The Applicant suggested, in explicit terms, the sexual acts which they could perform. Victim C replied that her “dad is going to see that” with the Applicant replying “Delete it”.

58. [71]

    On 2 November 2016, Victim C messaged the Applicant in terms which made clear the depth of her upset at what he had been doing and the adverse impact it was having on her.

59. [72]

    Victim B and other friends attended Victim A’s home on Friday, 17 March 2017.

60. [73]

    Victim A added the Applicant on Snapchat at about 8.00 pm or 9.00 pm that day for the purpose of obtaining alcohol.

61. [74]

    A series of online conversations occurred via Snapchat whereby the girls asked the Applicant to purchase alcohol for them.

62. [75]

    The Applicant declined to purchase alcohol and responded that they were using him. Contact ceased for that evening.

63. [76]

    The Applicant messaged Victim A and Victim B over the next few days via Snapchat. Victim A participated in general conversation. She did not respond to some communications.

64. [77]

    On about Sunday 19 March 2017, Victim A was alone in her bedroom. The Applicant told her on Snapchat that he ran a blog and required models to send photographs of themselves “not fully clothed”.

65. [78]

    The Applicant told Victim A that she would be paid $5.00 for each photograph, although the money may increase to $50.00 per photograph if they were seductive. In order to be paid more money, the Applicant told Victim A that she should be “as freaky as you can”.

66. [79]

    Victim A sent a number of photographs of her legs.

67. [80]

    The Applicant requested more seductive photographs in exchange for more money. His offers for payment increased to hundreds of dollars and then thousands of dollars.

68. [81]

    The Applicant agreed to pay Victim A by transferring money to Victim B’s account. In support of his offer for payment, the Applicant sent Victim A photographs of bank transactions he had sent to other girls who had provided photographs.

69. [82]

    Victim A sent photographs to the Applicant of her top half fully clothed. She then sent increasingly revealing photographs including bikini photographs, completely naked photographs and photographs of her vagina. Victim A also sent videos of her masturbating.

70. [83]

    Victim A sent a total of about 70 photographs to the Applicant.

71. [84]

    The Applicant screenshot some of the photographs which Victim A sent to him and saved the photographs in an encrypted application called “Photo Vault”.

72. [85]

    The Applicant sent to Victim A on Snapchat about seven to 10 photographs and some videos of himself masturbating. Victim A did not screenshot or save any of the videos or photographs sent to her by the Applicant.

73. [86]

    The Applicant told Victim A that he was going to kill himself the next day. He told her (falsely) that he was required to attend the police station the following day to answer questions about his ex-girlfriend’s suicide and the police would be examining his phone.

74. [87]

    The Applicant told Victim A that she should delete all of the conversations they had on Snapchat, unless she wanted to get in trouble with the police. Victim A complied and deleted all of the chats. Victim A felt worried and scared that the Applicant was going to show the police her photographs, so she told her parents about the communications with the Applicant.

75. [88]

    The Snapchat communications between Victim A and the Applicant occurred between about 10.30 pm on Sunday 19 March 2017 and 1.00 am on Monday 20 March 2017.

76. [89]

    The Applicant did not pay Victim A. She has never met the Applicant.

77. [90]

    Victim A was 14 years old in March 2017. She did not tell the Applicant her age.

78. [91]

    On 20 March 2017, Victim A attended a local police station with her parents to report the Applicant. She participated in a record of interview with police on 23 March 2017.

79. [92]

    On either Sunday 19 March 2017 or Monday 20 March 2017, Victim A told Victim B that the Applicant would pay her $2,000.00 if she sent him photographs of her legs. Victim B added the Applicant on Snapchat.

80. [93]

    The Applicant asked Victim B if she knew what was happening and he sent her a screenshot of his blog and his bank account. The photograph of the bank account indicated that he had $3.5 million dollars.

81. [94]

    Victim B sent to the Applicant via Snapchat about 50 to 60 photographs of her feet and legs. She then put on a bikini and sent more leg photographs.

82. [95]

    The Applicant told Victim B that the “sexier and kinkier the photographs”, the more money she would be paid and she would be paid more money again if she sent him photographs that would “pleasure him”.

83. [96]

    The Applicant directed Victim B to lie on her stomach and take photographs of her bottom and she complied. However, she declined to send naked photographs of herself to the Applicant.

84. [97]

    The Applicant told Victim B she had earned $100.00, not $2,000.00. He said he would not pay her because she did not make him ejaculate.

85. [98]

    The Applicant told Victim B (falsely) that he was attending the police station the next day and that police would check his phone. He said he was going to kill himself the next day. Victim B stopped talking to the Applicant and blocked him on Snapchat.

86. [99]

    Victim B phoned her mother and told her she was scared that the Applicant would show police the photographs and was scared as well that the Applicant would kill himself. Victim B’s mother advised that she should speak to the Applicant’s sister.

87. [100]

    Victim B contacted the Applicant’s sister and told her she was concerned the Applicant was going to kill himself, but did not tell her “the whole story”.

88. [101]

    The Applicant did not transfer any money to Victim B.

89. [102]

    Victim B participated in a record of interview with police on 23 March 2017.

90. [103]

    Snapchat discussions with the Applicant were located on Victim B’s phone. At one point in these discussions, Victim B said to the Applicant “I’m begging u … Please don’t do anything … This is making me cry”. In another discussion, the Applicant instructed Victim B how she should pose for photographs.

91. [104]

    As a result of complaints made to the police by Victim A and Victim B, police commenced an investigation of the Applicant. At about 11.00 am on 27 March 2017, New South Wales Police executed a warrant at the Applicant’s residence in Caringbah South.

92. [105]

    The Applicant gave his mobile phone and laptop to police and indicated his PIN.

93. [106]

    The Applicant told police that:

94. [107]

    During the execution of the warrant, the Applicant told his brother the police “are here because I am in the wrong … I am in the wrong”.

95. [108]

    Following execution of the search warrant on 27 March 2017, the Applicant’s computer was obtained and examined with no relevant material being located on it.

96. [109]

    The offence contained in Sequence 1 relates to material located on the Applicant’s mobile phone.

97. [110]

    The sentencing Judge was informed that the material on the Applicant’s mobile telephone had been classified in accordance with the Interpol Baseline Scale which classifies activity depicted as Child Abuse Material: Gilshenan v R [2019] NSWCCA 313 at [13]. Relevant categories are as follows:

98. [111]

    On review of the Applicant’s mobile phone, police identified 6,599 photographs and 44 videos in a password-protected application called “Photo Vault”.

99. [112]

    Two hundred and eighty photographs were classified as “child abuse material”.

100. [113]

     There were 44 images of Victim B and 29 images of Victim A.

101. [114]

     Image 1,457 had a caption “please don’t make me send anymore”. Image 2,078 depicted a young female wearing a bra and underwear with a typed caption “last shower being 14”.

102. [115]

     No videos were classified as “child abuse material”.

103. [116]

     A number of “chats” were located on the mobile telephone. These chats were the subject of the Sequence 9 offence.

104. [117]

     Shortly after 11.00 am on 27 March 2017, following the execution of the search warrant at his home, the Applicant was arrested and conveyed to Miranda Police Station.

105. [118]

     The Applicant was charged with the subject offences on 27 March 2017. He was released on bail that day and did not enter custody until sentence was imposed on 4 June 2019.

Impact of Offences Upon the Victims

1. [119]

   A victim impact statement from Victim A dated 24 November 2018 was tendered by the Crown at the sentencing hearing. Victim A’s statement provided considerable insight into the consequences of the Applicant’s offending upon her. She spoke of distress, humiliation and embarrassment and her ongoing fear and anxiety concerning the existence on the Internet of photographs of her.

2. [120]

   As a result of the Applicant’s offences, she has experienced stress and anxiety when talking to people (especially boys) on social media and experienced a lack of trust communicating with people in this way. She has a real fear of getting onto public transport because of concerns that she could possibly run into the Applicant. She stated that she has been prescribed medication since the incident to combat anxiety and has a real fear that the incident may come up in the future and damage her reputation and chances of employment.

3. [121]

   Victim A feels violated and that she was taken advantage of by the Applicant who deceived her about payment of money knowing that she was a schoolgirl.

4. [122]

   Victim A stated that she does not let herself get close enough to boys to form a relationship with them as she feels that all boys are like the Applicant who do not respect girls at all.

5. [123]

   The victim impact statement confirms the harm done to a young girl in her position by criminal communications of the type undertaken by the Applicant. The statement serves to illustrate the dangers for young people when this means of communication is abused and exploited in the manner seen in this case.

6. [124]

   The matters raised in the victim impact statement serve to emphasise the usual importance of general deterrence and denunciation in passing sentence for this class of offending. That said, as will be seen, findings were made by the sentencing Judge which serve to moderate the role of general deterrence on sentence in this case given the Applicant’s mental condition.

7. [125]

   The fact that victim impact statements were not made by other girls who were exploited by the Applicant does not mean that there were no adverse consequences flowing to them as a result of the Applicant’s offending: s.16AB(3) Crimes Act 1914 (Cth).

8. [126]

   Indeed, Courts have recognised that the implicit, persuasive presumption that a child has suffered harm as a result of prohibited sexual activity applies no less to cybersex offences than it does to (in person) sexual offences committed against young persons: Adamson v R (2015) 47 VR 268; [2015] VSCA 194 at [23]-[30], [56]-[58]. In that case, Warren CJ, Redlich and Weinberg JJA said at [23], [28]:

9. [127]

   In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, this Court said at [110]:

10. [128]

    The line of authority which gave rise to this statement in R v Gavel involves the same cases relied upon by the Victorian Court of Appeal in Adamson v R. These principles may be called in aid as well where a person is being sentenced for cybersex offences committed against real child victims.

The Applicant’s Subjective Circumstances

1. [129]

   As mentioned earlier, the Applicant was 18 years of age at the time of the offences and 21 years old at the time of sentence in June 2019. His 22nd birthday is in early May 2020.

2. [130]

   The Applicant has no prior criminal history.

3. [131]

   A sentencing assessment report dated 27 November 2018 was tendered by the Crown at the sentencing hearing.

4. [132]

   The sentencing assessment report noted that the Applicant was then working in the hospitality industry on a casual basis and was residing with his parents and siblings, an environment which the Applicant described as being stable and supportive.

5. [133]

   The Applicant told the Community Corrections Officer that he attributed his offending behaviour to his deteriorated mental health. The Applicant reported that he initially used social media as a platform to make friends as he felt disconnected from those around him and that, despite knowing the ages of the victims and that he was committing an offence, he reported feeling as though he was unable to stop. He stated that “At the time of the offences he felt isolated and unloved which led to moods of depression” but that, since the commission of the offences, he has engaged with psychological intervention to address these underlying issues.

6. [134]

   The Applicant expressed his willingness to continue engagement with psychological intervention. Although the Applicant had been assessed as a low risk of reoffending according to the Level of Service Inventory-Revised instrument, Community Corrections had overridden that risk assessment to T2/Medium-High due to the Applicant being in the “above average risk” range of the Static-99R assessment.

7. [135]

   A case note report annexed to the sentencing assessment report indicated that, should the Applicant receive a custodial sentence, it was recommended that he be referred for assessment of his eligibility and his suitability for a custody-based treatment program, although it was noted that he would require a minimum period of two years to complete most custody-based programs.

8. [136]

   Tendered in the defence case on sentence were reports of the Applicant’s initial treating psychologist, Klaudia Gebert, dated 2 March 2018 and a report dated 13 May 2019 from John McQuillen, psychologist, who took over as the Applicant’s treating psychologist from April 2019. Further, a number of medical reports and hospital treatment notes concerning the Applicant were tendered.

9. [137]

   In addition, tendered in the defence case on sentence were letters from the Applicant’s mother, brother and father which provided a family history and a detailed account of the Applicant’s background and health issues.

10. [138]

    The Applicant’s mother stated that he had not been active on social media since his arrest on 27 March 2017.

11. [139]

    She gave an account of the Applicant’s experiences of being bullied whilst at school and the negative consequences of those experiences on him. She described the Applicant as a person who was “always a little awkward socially” who befriended persons with disabilities and was “considered uncool” by other students as a result (T7, 20 May 2019). She confirmed medical reports which indicated that the Applicant had attempted suicide. The Applicant’s mother understood that her son had effectively tormented the victims and had to be punished for his offences.

12. [140]

    Medical reports and discharge summaries tendered at the sentencing hearing confirmed that the Applicant had made a suicide attempt in December 2014 (AB168-173).

13. [141]

    Documents produced on subpoena by the high school which the Applicant attended also confirmed a history of anxiety and stress in 2013 and 2014 (AB178-188).

14. [142]

    The Applicant’s mother gave evidence at the sentencing hearing. The Applicant did not give evidence at the hearing.

15. [143]

    She confirmed that the Applicant had engaged with psychological counselling and therapy since April 2017. She stated that the Applicant was “incredibly remorseful” and that he “suffered deep shame” for what he had done (T8, 20 May 2019).

16. [144]

    Under cross-examination by the Crown, the Applicant’s mother confirmed that he was living at the family home during the period of his offending. She said she had been quite unaware of his offending conduct.

17. [145]

    The Crown asked the Applicant’s mother about her knowledge of events which occurred when he was 14 years old which gave rise to a police warning. This was referred to in Mr McQuillen’s report (page 3) where the Applicant “reported at the age of 14 he had begun requesting girlfriends send him images of themselves over ‘snapchat’ and that he had been warned by NSW Police for the behaviour at the time”. The Crown asked the Applicant’s mother (T9-10, 20 May 2019):

18. [146]

    The psychological report of Ms Gebert dated 2 March 2018 recounted her treatment of the Applicant since a referral by his general practitioner following his arrest in March 2017. Ms Gebert expressed a provisional diagnosis of persistent depression disorder (dysthymia) and generalised anxiety disorder as well as borderline personality disorder (page 4). As Ms Gebert had left the clinic where she had been treating the Applicant, she noted that his treatment was to be assumed by another psychologist.

19. [147]

    The detailed report of Mr McQuillen dated 13 May 2019 played a significant part at the sentencing hearing and in her Honour’s sentencing remarks.

20. [148]

    A number of specific questions were posed to Mr McQuillen for comment. In answer to a question whether the Applicant met any formal diagnosis of a mental health condition, Mr McQuillen said (page 7):

21. [149]

    In response to a question whether the Applicant was sexually aroused from his offending, Mr McQuillen replied (page 7):

22. [150]

    Mr McQuillen did not consider that the Applicant had any romantic motivations for his behaviour.

23. [151]

    In response to a question as to whether the Applicant was “addicted” to his sexualised offending behaviour, Mr McQuillen replied (page 7):

24. [152]

    In answer to a question as to whether the Applicant’s conduct involved the exercise of power and control over the victims (given the Applicant’s statement that he felt that he had been a victim of bullying during his childhood), Mr McQuillen replied (page 7):

25. [153]

    In answer to a question as to whether there was any nexus between his diagnoses and the Applicant’s offending, Mr McQuillen replied in the affirmative and continued (page 8):

26. [154]

    Mr McQuillen recounted the extended course of treatment undertaken with Ms Gebert in 2017 and 2018 and expressed the view that the Applicant required further psychological treatment.

27. [155]

    Mr McQuillen applied the Static-99R risk assessment tool and concluded that the Applicant was placed in the moderate-high risk category relative to other male sexual offenders (page 8). Mr McQuillen elaborated upon the Applicant’s risk of reoffending (pages 8-9):

28. [156]

    Mr McQuillen concluded his risk assessment in the following way (page 9):

29. [157]

    Mr McQuillen noted that the Applicant “has a long history of bullying throughout his childhood that has had a significant impact upon his psychological development leading to the formation of maladaptive schema and maladaptive coping responses” (page 9). He noted that the Applicant reported “a generally supportive family life”, although there were some interpersonal problems with members of the family (page 9). Mr McQuillen expressed the following conclusions and recommendations in his report (page 9):

30. [158]

    If the Court imposed a custodial sentence, Mr McQuillen made the following recommendation (page 9):

The Sentencing Hearing and Sentencing Remarks

1. [159]

   Following the hearing on 20 May 2019, the sentencing Judge came to sentence the Applicant on 4 June 2019.

2. [160]

   It is appropriate to set out parts of the sentencing remarks in this judgment. Submissions were made at the hearing in this Court by reference to the structure and content of the sentencing remarks. Her Honour addressed, in some detail, the objective and subjective factors emerging from the case and the balancing process required in the exercise of instinctive synthesis in passing sentence.

3. [161]

   The sentencing Judge commenced with a description of the offences and then findings of fact based upon the Agreed Statement of Facts (ROS1-13, 4 June 2019).

4. [162]

   Her Honour then recounted Victim A’s victim impact statement and said (ROS14):

5. [163]

   The sentencing Judge then returned to consider the objective seriousness of the offences, noting before undertaking that task the following matters (ROS15):

6. [164]

   Her Honour then turned to the question of objective seriousness noting that it was necessary “to look specifically at the offences before the court to determine where they sit within the spectrum of gravity considered by the offence provisions” (ROS15).

7. [165]

   Her Honour noted the provisions in s.16A Crimes Act 1914 (Cth) and stated with respect to the Commonwealth offences (ROS16):

8. [166]

   The sentencing Judge then turned to an assessment of the objective seriousness of the s.474.27(1) offence in Sequence 9 (ROS17):

9. [167]

   After referring to the principles set out in R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316 at [48]-[49], her Honour said with respect to the Sequence 9 offence (ROS18-19):

10. [168]

    Her Honour then assessed the objective seriousness of the Sequence 9 offence in the following way (ROS19):

11. [169]

    The sentencing Judge then made findings relating to the possess child abuse offence (Sequence 1) and the Sequence 4 offence. Her Honour referred to factors to be taken into account on sentence as identified in Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140 and R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174. Her Honour said in this respect (ROS20-21):

12. [170]

    Her Honour referred to submissions made concerning the objective seriousness of the s.474.19(1)(a)(iv) offence in Sequences 3 and 4. It may be taken that her Honour was accepting the following Crown submissions, which were not placed in issue at the sentencing hearing. Her Honour said in this respect (ROS21-22):

13. [171]

    The sentencing Judge then made the following finding concerning the objective seriousness of the offences in Sequences 3 and 4 (ROS22):

14. [172]

    Her Honour then returned to the offence in Sequence 1, being the offence of possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW). After referring to sentencing principles for this class of offence, her Honour said (ROS24):

15. [173]

    Having considered factors relevant to sentence for this class of offence as considered in R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, her Honour made the following finding concerning the objective gravity of the Sequence 1 offence (ROS25):

16. [174]

    Her Honour then turned to consider the objective gravity of the s.474.17(1) offence to be taken into account under s.16BA Crimes Act 1914 (Cth), being the offence of using a carriage service to menace, harass or offend. Her Honour accepted the Crown submissions in this respect and made the following findings (ROS26):

17. [175]

    The sentencing Judge then considered whether the circumstances of the Applicant’s offences involved a course of conduct for the purpose of s.16A(2)(c) Crimes Act 1914 (Cth) and s.21A(2)(n) Crimes (Sentencing Procedure) Act 1999 (NSW). Her Honour said (ROS27-28):

18. [176]

    The sentencing Judge then turned to other evidence concerning the Applicant for the purpose of considering the issue of moral culpability. Her Honour said (ROS28):

19. [177]

    Thereafter, her Honour considered, at some length, the psychological reports of Ms Gebert and Mr McQuillen with aspects of these reports being summarised in the following way (ROS28):

20. [178]

    Her Honour noted Mr McQuillen’s opinion that there was a causal connection between the Applicant’s psychological condition and the offending conduct with the Court referring to parts of Mr McQuillen’s report as set out earlier in this judgment (at [148]-[153] above) (ROS29). Her Honour continued (ROS30-31):

21. [179]

    The sentencing Judge allowed a 25% discount for the Applicant’s early pleas of guilty, an issue to be addressed in the second ground of appeal. Her Honour said (ROS31):

22. [180]

    The sentencing Judge then addressed the Applicant’s prospects of rehabilitation and risk of reoffending, together with issues of contrition and remorse (ROS31-32):

23. [181]

    Her Honour continued (ROS32-33):

24. [182]

    Her Honour turned to issues of concurrency, accumulation and totality (ROS33):

25. [183]

    Her Honour addressed the issues of general deterrence and specific deterrence in the following way (ROS34):

26. [184]

    Although the Applicant did not give evidence at the sentencing hearing, her Honour treated as appropriate the Crown concession that regard should be had to his expressions of remorse as being genuine (ROS34).

27. [185]

    As the sentencing remarks drew to a close, her Honour noted that most of the factors to be taken into account under s.16A(2) Crimes Act 1914 (Cth) had been addressed to that point. Her Honour referred to a number of other factors (ROS35):

28. [186]

    The sentencing Judge referred to other sentencing decisions mentioned by the Crown in written submissions. This part of the sentencing remarks was relied upon by the Applicant in support of the third ground of appeal. Her Honour said (ROS35-36) (emphasis added):

29. [187]

    In part of the sentencing remarks which relates to the first ground of appeal, her Honour said (ROS36):

30. [188]

    The sentencing Judge then paused and enquired of the parties as to whether there was any aspect which the Court had “neglected to refer to” in the sentencing remarks. The Crown responded in the negative. The solicitor for the Applicant proceeded to make further submissions which led to a dialogue between the Applicant’s solicitor and the sentencing Judge (ROS36-38). The principal topic which appeared to be raised for the Applicant at this point related to the comparative ages between the Applicant and the young girls with whom he had communicated in these offences. Reference was made as well to Victim A’s victim impact statement.

31. [189]

    Discussion between the sentencing Judge and the Applicant’s solicitor concluded in the following way (ROS38):

32. [190]

    Her Honour then continued (ROS38):

33. [191]

    To the extent that a finding of special circumstances was relevant to the sentencing exercise, her Honour said (ROS38-39):

34. [192]

    The sentencing Judge then noted that the Sequence 10 offence was to be taken into account under s.16BA Crimes Act 1914 (Cth) when passing sentence for the Sequence 4 offence, with her Honour’s approach in this respect not coming under challenge in this Court.

35. [193]

    Her Honour then proceeded to fix sentences as identified earlier in this judgment (at [4]ff).

36. [194]

    A forfeiture order was made under s.23ZD Crimes Act 1914 (Cth) with respect to the Apple iPhone 6 which had been seized by police from the Applicant at the time of execution of the search warrant on 27 March 2017.

Ground 1 - Suggested Error in Failing to Consider Whether an Alternative to Fulltime Imprisonment was Available for the Commonwealth Offences

1. [195]

   Mr Ginges, counsel for the Applicant, acknowledged that it was open to the sentencing Judge to form the view that the imprisonment threshold had been crossed for the purpose of these offences, but submitted that the sentencing Judge had not considered the question whether alternatives to fulltime imprisonment were appropriate in this case for the Commonwealth offences.

2. [196]

   He submitted that it was necessary for the sentencing Judge to approach the question of sentence in accordance with the three-stage approach referred to in Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [69]-[72]. Having determined that imprisonment was appropriate, it was submitted that it was necessary for her Honour to consider whether an alternative to fulltime imprisonment was appropriate, then the form of imprisonment to be utilised and then finally the length of the sentence. It was submitted that the approach referred to in Douar v R has been applied concerning Commonwealth sentencing as well: Fedele v R (2015) 257 A Crim 78; [2015] NSWCCA 286.

3. [197]

   It was submitted that the approach adopted by the sentencing Judge (ROS36 at [187] above) indicated a failure to consider these intermediate steps in determining whether a sentence of fulltime imprisonment was appropriate for the purpose of s.17A Crimes Act 1914 (Cth).

4. [198]

   Whilst acknowledging that an intensive correction order was not available as a sentencing alternative (as it was excluded by s.67(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW)), it was submitted that it was open to the sentencing Judge to consider for the Commonwealth offences the use of a suspended sentence under s.20(1)(b) Crimes Act 1914 (Cth).

5. [199]

   Counsel submitted that it was not enough for her Honour to merely state, for the purpose of s.17A Crimes Act 1914 (Cth), that a sentence of imprisonment may only be imposed if it is the only appropriate outcome with that statement not engaging the further steps required for the purpose of excluding the availability of a suspended sentence.

6. [200]

   The Applicant submitted that the sentencing Judge had erred so that the first ground of appeal should be upheld.

7. [201]

   The Crown submitted that the approach reflected in the first ground of appeal does not sit comfortably with the manner in which the District Court sentencing hearing was conducted by different counsel appearing for the Applicant. It was submitted that the divergence between the approach adopted at first instance and in this Court was such as to attract application of the principles in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81]-[82].

8. [202]

   The Crown submitted that the Applicant’s counsel at first instance had accepted that there was no alternative to fulltime imprisonment for both the Commonwealth and State offences and that submissions had been made upon that basis. It was submitted, as well, that the sentencing Judge structured the sentences by use of a partially suspended sentence in accordance with s.20(1)(b) Crimes Act 1914 (Cth), in a manner which combined custodial and non-custodial elements in the sentence.

9. [203]

   The Crown submitted that it was clear from the sentencing remarks that her Honour had formed the view that nothing short of a fulltime sentence of imprisonment was appropriate having regard to the objective gravity of the Applicant’s offences.

10. [204]

    In approaching this ground of appeal, it is necessary to keep in mind the manner in which the District Court sentencing hearing was conducted by counsel appearing for the Crown and the Applicant.

11. [205]

    The Crown written submissions in the District Court submitted that “the only appropriate penalty is a period of fulltime imprisonment, with regard to the nature and objective seriousness of these offences, and the need for general deterrence and denunciation of the offender’s conduct” (AB190).

12. [206]

    Counsel for the Applicant addressed orally without the use of written submissions. He commenced his submissions on sentence in the following way (T12-13, 20 May 2019):

13. [207]

    Later in his sentencing submissions, counsel for the Applicant said (T18, 20 May 2019):

14. [208]

    It is clear that the sentencing hearing was conducted upon the basis that an overall sentence of fulltime imprisonment was the appropriate sentencing outcome in this case. To that extent, there is a divergence between what was argued in the District Court and what is advanced in this Court on behalf of the Applicant.

15. [209]

    This Court, of course, is a court of error so that a difference in approach in the manner in which the proceedings were conducted at first instance and in this Court may have a significant and material effect upon the question whether error can be demonstrated: Zreika v R at [79]-[82].

16. [210]

    What was said in Douar v R and Fedele v R does not a require a slavish or formulaic approach by a sentencing Judge for the purpose of determining whether a sentence of fulltime imprisonment is appropriate. There are some cases, of course, where the objective gravity of the offences means that a sentence of fulltime imprisonment is inevitable, even allowing for other aspects of the case including an offender’s subjective circumstances. In my view, this case fell into that category, as counsel for the Applicant at first instance recognised.

17. [211]

    The District Court sentencing hearing was conducted in a realistic fashion by counsel appearing for the Applicant and the Crown. Further, her Honour gave careful consideration to all aspects bearing upon sentence as demonstrated by the detailed extracts from the sentencing remarks set out above.

18. [212]

    In the result, her Honour determined upon a sentencing outcome which saw a minimum custodial component with a substantial period of conditional liberty. The Applicant has not established the error asserted in the first ground of appeal.

19. [213]

    I reject the first ground of appeal.

Ground 2 - Claim that Sentencing Judge Failed to Give Any Weight to the Utilitarian Value of the Applicant’s Guilty Pleas in the Sentences Imposed for the Commonwealth Offences

1. [214]

   Counsel for the Applicant submitted that, in accordance with Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, the sentencing Judge ought to have allowed a discount for the Applicant’s pleas of guilty for the Commonwealth offences so as to reflect the utilitarian value of those pleas. It was submitted that the approach adopted by the sentencing Judge did not demonstrate that weight had been given to the utilitarian value of the Applicant’s pleas of guilty to the Commonwealth offences (see [179] above).

2. [215]

   It was submitted that her Honour did not address the basis for the discount for the Commonwealth offences so that it was not apparent that her Honour had calculated the discount by reference to the utilitarian value of the pleas for the Commonwealth offences or upon some other basis.

3. [216]

   The Crown submitted that the approach adopted by the sentencing Judge was based upon the common position adopted by counsel for the Applicant and the Crown at first instance, that a 25% discount was appropriate to reflect the utilitarian value of the pleas of guilty for both the State and Commonwealth offences. In support of this submission, the Crown referred to submissions made at the sentencing hearing.

4. [217]

   The Crown submitted that the sentencing Judge determined the discount correctly, and in the manner reflected in a common submission of the parties, and that no error had been demonstrated in this respect.

5. [218]

   It may be accepted that, since the decision of this Court in Xiao v R, a sentencing Judge should have regard to the utilitarian value of pleas of guilty for Commonwealth offences, thereby taking into account similar considerations to those applicable when passing sentence for offences under New South Wales law.

6. [219]

   When sentencing for Commonwealth offences, the utilitarian value of a plea of guilty is an objective factor to be considered under s.16A(2)(g) Crimes Act 1914 (Cth) and preferably quantified: Xiao v R at [280]; Bae v R [2020] NSWCCA 35 at [57]. In determining the utilitarian value of a plea of guilty for a Commonwealth offence, guidance is provided by decisions concerning State offences including R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and R v Borkowski (2009) 195 A Crim R; [2009] NSWCCA 102: Bae v R at [52]-[55].

7. [220]

   The Crown written submissions in the District Court referred to Xiao v R and the appropriateness of allowing a discount for the utilitarian value of a guilty plea for Commonwealth offences (AB200-201).

8. [221]

   The sentencing Judge allowed a 25% discount for the Applicant’s pleas of guilty for the Commonwealth and State offences without any elaboration (see [179] above). This approach was understandable given the submissions made in this respect at the sentencing hearing where counsel for the Applicant and the Crown agreed that a 25% discount was appropriate for the Applicant’s pleas of guilty to the State and Commonwealth offences (T13-14, 20 May 2019).

9. [222]

   There was no uncertainty concerning the approach adopted by the sentencing Judge in determining the discounts for the pleas of guilty in this case. A common approach was adopted by reference to the utilitarian value of the pleas of guilty, with this approach being applicable to the Commonwealth and State offences in light of the common principles to be applied referred to at [219] above.

10. [223]

    The sentencing Judge allowed identical discounts of 25% for the utilitarian value of the Applicant’s guilty pleas for the Commonwealth offences in the same way as her Honour did with the guilty plea for the State offence.

11. [224]

    Her Honour made separate findings that the Applicant had expressed genuine contrition and remorse and these factors were taken into account, without quantification, as subjective factors which operated in the Applicant’s favour on sentence.

12. [225]

    I would reject this ground of appeal.

Ground 3 - Claim of Error by Inappropriately Sentencing the Applicant “Consistently with Other Offence of Like Kind” Thereby Failing to Give Effect to Findings Made by the Sentencing Judge that the Applicant’s Moral Culpability was Reduced and that the Sentencing Purposes of Specific and General Deterrence had been Moderated in the Present Case

1. [226]

   Counsel for the Applicant submitted that the sentencing Judge had erred in relying upon other sentencing decisions referred to by the Crown in the manner contained in the extract from the sentencing judgment at [186] above.

2. [227]

   It was submitted that her Honour had determined erroneously to “ensure” that the Applicant was sentenced consistently with these other sentencing decisions despite findings made with respect to the Applicant’s reduced moral culpability and the lesser need for specific and general deterrence in the circumstances of the case.

3. [228]

   It was submitted that her Honour had erred by utilising the sentencing decisions which accompanied the Crown submissions and ensuring that “the sentencing outcome here falls within the type of sentencing range that arises from a consideration of cases referred to the court”.

4. [229]

   Counsel submitted that consideration of the cases contained in the Crown schedule served to distinguish those cases from the present in a number of respects. It was submitted that none of those cases involved an 18-year old offender with mental health conditions of the type revealed in the present case.

5. [230]

   It was submitted that, although her Honour had made a number of findings favourable to the Applicant with respect to moral culpability and the impact of his mental health condition, these findings were not implemented in the sentencing outcome because her Honour erroneously had regard to a sentencing range emerging from significantly different cases.

6. [231]

   The Crown submitted that the Applicant sought to place inappropriate weight on the use of the words “ensure” and “ensures” as they appeared in one part of a lengthy sentencing judgment. It was submitted that the emphasis placed on these words by the Applicant was misplaced when considering the context in which they were used by her Honour in the judgment.

7. [232]

   The Crown submitted that the sentencing Judge was mindful that there were limitations upon the usefulness of comparable cases and that this was particularly so given the findings here with respect to the Applicant’s age, reduced moral culpability and mental health conditions. The Crown noted, as well, that no submission had been made by the Applicant’s counsel at first instance with respect to the use of the other sentencing decisions.

8. [233]

   The Crown submitted that, to make good this ground of appeal, it was necessary for the Applicant to demonstrate that the sentencing Judge had impermissibly constrained her own sentencing discretion by use of the comparable cases. It was submitted that this had not been demonstrated by the Applicant.

9. [234]

   It was submitted further that the Applicant had not identified how the sentencing Judge was constrained by the comparable cases and which of the cases are said to have adversely influenced her Honour’s sentencing discretion.

10. [235]

    The Crown submitted that the cases contained instances where offenders were sentenced for single offences through to multiple offences for Commonwealth and State offences and that it was difficult to understand how, in those circumstances, her Honour could have constrained her own sentencing discretion.

11. [236]

    The Crown submitted that the Court should reject the third ground of appeal.

12. [237]

    To determine this ground of appeal, it is necessary to consider the way in which the sentencing Judge was invited to consider other sentencing decisions for the purpose of sentencing the Applicant in this case.

13. [238]

    The Crown written submissions in the District Court referred to Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 and submitted that “the consistency [in sentencing] that is sought is consistency in the application of the relevant legal principles, rather than some numerical equivalence”. The written submissions noted that annexed as Annexure “B” was “a schedule of cases which made [sic] provide the Court some guidance as to the applicable unifying principles”.

14. [239]

    Annexure “B” contained a summary of the following six cases:

15. [240]

    The Crown written submissions did not use the word “range” nor did they suggest that the six cases were to be used on sentence beyond the propositions taken from Hili v The Queen (referred to at [238] above).

16. [241]

    Nothing was said in oral submissions before the District Court concerning the use to be made of the six sentencing decisions contained in Annexure “B” to the Crown submissions.

17. [242]

    As the extracts from the sentencing remarks make clear, the sentencing Judge came to mention these decisions after an extensive examination of objective and subjective factors arising in the case and relevant sentencing principles. It is helpful at this point to repeat what her Honour said in this respect (ROS35-36) (emphasis added):

18. [243]

    The sentencing Judge appears to have taken the following steps:

19. [244]

    The sentencing Judge had found that the present Applicant was a mentally disturbed and immature 18-year old when he committed serious offences. Findings had been made that the Applicant’s moral culpability was reduced and that the need for specific and general deterrence was moderated in his case.

20. [245]

    What light was shed upon the sentencing of such an offender by the six decisions which her Honour took into account and applied to “ensure” that the sentencing outcome for the Applicant fell within “the type of sentencing range” that arose from consideration of those six decisions?

21. [246]

    Annexure “B” to the Crown submissions revealed the following features of the six decisions:

22. [247]

    The 38-year old offender in Meadows v R pleaded guilty to one offence of using a carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) and one count of possession of child pornography contrary to s.70.1 Crimes Act 1958 (Vic). The grooming offence involved four online conversations with a police officer posing as a 12-year old girl over a one-week period. The possession of child pornography offence involved two image files, one in Category 1 and one in Category 4 within the CETS Scale: R v Porte at [16].

23. [248]

    The offender had a mild brain injury, but there was no evidence to suggest that it contributed to his offending. There was an early plea of guilty and evidence of a pattern of alcohol abuse which may have contributed to the offending. He expressed remorse and played a role caring for his mother during illness.

24. [249]

    The offender was sentenced to 12 months’ imprisonment for the grooming offence to be released on a recognizance release order after three months to be of good behaviour for nine months. For the possession of child pornography, he was sentenced to a community corrections order for 15 months.

25. [250]

    On appeal, the sentences were held not to be manifestly excessive and leave to appeal was refused.

26. [251]

    The 33-34 year old offender in R v Engeln pleaded guilty to two offences of using a carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1), one offence of using a carriage service to transmit indecent material to a person under 16 years contrary to s.474.27A(1) Criminal Code (Cth) (punishable by a maximum penalty of seven years’ imprisonment), three offences of using a carriage service to procure a person under 16 years contrary to s.474.26 Criminal Code (Cth) (punishable by a maximum penalty of 15 years’ imprisonment) and one offence of possession of child exploitation material contrary to s.228D Criminal Code 1899 (Qld).

27. [252]

    The offender had no prior criminal history. Over a four-week period, he engaged in sexually graphic and explicit online chats with a police officer posing as a 14-year old girl and engaged as well in communications over some months with a police officer posing as a 14-year old girl. The Applicant transmitted images of himself masturbating and arranged to meet the undercover officer with the intention of engaging in sexual activity with a person he believed to be a 14-year old girl. Upon execution of a search warrant, devices found contained 308 child exploitation images. The offender had a good employment history and displayed genuine remorse.

28. [253]

    A series of sentences were imposed involving an order that he be released after nine months’ imprisonment upon a recognizance to be of good behaviour for three-and-a-half years.

29. [254]

    An appeal against sentence was dismissed.

30. [255]

    The 25-year old offender in Cooper v R was sentenced for one offence of using a carriage service to access child pornography contrary to s.474.19(1), two offences of using a carriage service to transmit child pornography contrary to s.474.19(1), two offences of using a carriage service to procure a person under 16 years contrary to s.474.26(1), one offence of using a carriage service to cause child pornography to be transmitted contrary to s.474.19(1) and two offences of using a carriage service to groom persons under 16 years contrary to s.474.27(1) Criminal Code (Cth). In addition, the offender was sentenced for one offence of possession of child abuse material (at a time when the maximum penalty for this offence was imprisonment for five years).

31. [256]

    Over the course of one day with each victim, the offender engaged in chats using assumed online identities with a 13-year old boy and with a 15-year old girl using the messenger profile of a 14-year old boy. He transmitted child pornography images to the intended victims and discussed masturbation. He committed grooming offences whilst on bail for six offences. There was evidence of lack of insight into his offending.

32. [257]

    At first instance, a total sentence of imprisonment of seven years with a non-parole period of five years was fixed. On appeal, the overall sentence was reduced to imprisonment for five years and six months with a non-parole period of three years and nine months.

33. [258]

    In R v Costello, the 48-year old offender was sentenced for one offence of using a carriage service to groom a person under 16 years contrary to s.474.27(1) and four offences of using the Internet to expose a person under 16 years to indecent material contrary to s.218A(1)(b) Criminal Code (Qld) (an offence punishable by a maximum penalty of five years’ imprisonment).

34. [259]

    The offender pleaded not guilty and was convicted of the offences. He had no prior criminal history. He engaged in chats with a police officer posing as a 14-year old female on the Yahoo Message Program and MSN Messenger. He had sexually explicit chats with the assumed identity on 11 occasions over 10 days in a 31-day period. The offender gave the assumed identity instructions and encouragement to masturbate and to undertake other sexual activity on webcam. The offender exposed himself via webcam, but made no attempts to meet the person. The offender participated in an interview with police and claimed he thought the recipient was an adult male and that he did not believe that she was a child. He did not deny taking part in the chatroom conversations, but claimed they were a fantasy.

35. [260]

    For the s.474.27(1) offence, the offender was sentenced to 27 months’ imprisonment to be released after 13.5 months upon entering into a recognizance to be of good behaviour for three years. On each of the remaining counts, he was sentenced to eight months’ imprisonment.

36. [261]

    An appeal against conviction was dismissed and leave to appeal against sentence was refused.

37. [262]

    In Rampley v R, the 33-year old offender pleaded guilty to one offence of using a carriage service to groom a person under 16 years contrary to s.474.27(1). The offender had no relevant criminal history.

38. [263]

    Over a period of four months, he engaged in sexually explicit chats with a police officer posing as a 12-year girl. He gave instructions on how to masturbate and sent adult pornographic videos and discussed a possible meeting for sex. His behaviour was said to be consistent with a diagnosis of paedophilia. The offender received treatment prior to sentence and had good prospects of rehabilitation.

39. [264]

    The offender was sentenced to imprisonment for two years and nine months to be released after serving 18 months’ imprisonment. An appeal against sentence was dismissed.

40. [265]

    In R v Asplund, the 65-year offender pleaded not guilty to two counts of using a carriage service to groom a child contrary to s.474.27(1).

41. [266]

    Over a period of about three months, the offender engaged in online sexual chats and telephone calls with a real victim under 16 years of age. The offender posed as a 27-year old male and made a number of enquiries about the girl’s sex life and asked for a picture of her genitals. The text messages included a planned meeting at a hotel for sexual purposes. The offender gave sums of money to the girl. The offender was employed as a fitter and turner. He had no prior convictions and had some degree of depression and loneliness. There were poor rehabilitation prospects.

42. [267]

    On sentence in the District Court, the offender was sentenced to imprisonment for three years and six months with a non-parole period of one year and nine months.

43. [268]

    A Crown appeal against sentence was allowed and the offender was resentenced to a total period of seven years’ imprisonment with a non-parole period of four years.

44. [269]

    It will be apparent immediately that none of the six decisions involved sentencing an immature 18-year old offender, let alone one with a mental condition which served to reduce moral culpability and ameliorate the roles of specific and general deterrence. Of the six decisions, the youngest offender was 25 years old (Cooper v R).

45. [270]

    On the other hand, it was the case that the Applicant’s offences involved real victims and not undercover police pretending to be young persons, as was a feature in four of the Annexure ”B” cases (Meadows v R; R v Engeln; R v Costello; Rampley v R). Real victims were involved in two cases (Cooper v R and R v Asplund).

46. [271]

    The sentencing Judge was invited by the Crown written submissions (without challenge by the Applicant) to consider the six sentencing decisions for the purpose of obtaining “guidance as to the applicable unifying principles”. Her Honour considered the six decisions and then “ensured that the sentencing outcome” fell “within the type of sentencing range” arising from the six decisions. Her Honour did not explain, even briefly, the features of the six decisions which served to identify a “type of sentencing range” to be applied in the Applicant’s case.

47. [272]

    It has been said that care should be taken to indicate to a sentencing Court the basis upon which other sentencing decisions are to be relied upon on sentence for a particular offender: R v Dinh (2010) 199 A Crim R 573; [2010] NSWCCA 74 at [60].

48. [273]

    In Hili v The Queen, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at [48]-[49]) that consistency in federal sentencing “is not demonstrated by, and does not require, numerical equivalence” and that the “consistency that is sought is consistency in the application of the relevant legal principles”. Their Honours said (at [49]) that “when it is said that the search is for ‘reasonable consistency’, what is sought is the treatment of like cases alike, and different cases differently”. With respect to information concerning other sentencing decisions, their Honours said (at [52]-[54]) (footnotes omitted):

49. [274]

    In The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [50], Bell and Gageler JJ said that “comparable cases decided by intermediate courts of appeal provide the most useful guidance to a sentencing judge” and that those “reasons reveal the mix of factors that were taken into account and will usually involve consideration of the appropriateness of the sentence imposed at first instance”.

50. [275]

    In Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41, Gageler and Gordon JJ said at [83] (footnotes omitted):

51. [276]

    As the extracts from the sentencing remarks set out earlier reveal, the sentencing Judge made careful and detailed findings by reference to factors including the objective gravity of the offences, the Applicant’s moral culpability and the weight to be given to specific deterrence and general deterrence in the circumstances of the case, in light of evidence concerning the Applicant’s mental condition at the time of the commission of the offences. Her Honour had regard as well to the Applicant’s age and immaturity at the time of the commission of these offences.

52. [277]

    The question raised by this ground of appeal is whether, having undertaken a detailed analysis of the evidence and consideration of factors relevant to sentence, her Honour thereafter had regard in an erroneous fashion to other sentencing decisions to which reference had been made by the Crown. It is clear that her Honour was conscious of the need for care in considering other sentencing cases and was aware of the need to keep clearly in mind the particular circumstances of the case at hand.

53. [278]

    The Applicant was 18 years old at the time of these offences. He had no prior criminal record. However, there had been incidents of a similar type which had occurred when he was 14 years old which gave rise to a police warning. As the sentencing Judge found, at the time of the offences, the Applicant was an immature and disturbed young man with a complex history of being bullied at school with consequential psychological harm and with self-destructive features and a pattern of serious depression. The Applicant’s case was far removed from those of the offenders in the six cases raised for consideration on sentence.

54. [279]

    Principles concerning sentencing of young adult offenders had particular application in this case. They were summarised recently in Yildiz v R [2020] NSWCCA 69, where Simpson AJA and N Adams J said at [2]:

55. [280]

    Although the Applicant was legally an adult, the evidence accepted by the sentencing Judge reflected a significant degree of immaturity which contributed to the offences. Added to this was the mental condition described by Mr McQuillen which her Honour found was causally linked to the offences.

56. [281]

    There are few sentencing decisions for Commonwealth or State cybersex offences committed by young adult offenders.

57. [282]

    In R v McGrath (2006) 2 Qd R 58; [2005] QCA 463, a 19-year old offender was sentenced for two offences of using the Internet with intent to procure a child under 16 years to engage in a sexual act (s.218A(1)(a) Criminal Code (Qld)) and three offences of using the Internet with intent to expose a child under 16 years to indecent matter (s.218A(1)(b) Criminal Code (Qld)). In allowing an appeal against a custodial sentence, the Queensland Court of Appeal had particular regard to the offender’s youth and immaturity.

58. [283]

    In Puhakka v R [2009] NSWCCA 290, a 20-year old offender was sentenced to terms of imprisonment for offences of possession of child pornography contrary to s.91H(3) Crimes Act 1900 (NSW). On appeal, his sentence was reduced. After considering a number of other sentencing decisions, Blanch J (Macfarlan JA and myself agreeing) said at [15]-[16]:

59. [284]

    In the unusual circumstances of this case, I am satisfied that the Applicant has made good this ground of appeal. The sentencing Judge has used, as measuring sticks for determination of a sentencing range, a series of cases which are materially and significantly different from the Applicant’s case. No explanation was given by her Honour as to the features of these cases which served to furnish a range to be applied to the Applicant’s case.

60. [285]

    I am conscious that her Honour went on to mention her own experience of sentencing for this type of offence. No reference was made to any particular case in that respect.

61. [286]

    This Court should not place unwarranted burdens upon sentencing Judges to say more than is necessary when sentencing an offender. However, where, as in this case, a limited selection of quite different cases is treated as providing a sentencing range, without any explanation or elaboration being given as to what features supported that conclusion, it is difficult to see how this had come about without error infecting the sentencing process.

62. [287]

    The limited selection of dissimilar cases did not give rise to a “sentencing range”, let alone one which her Honour was to apply “to ensure that the sentencing outcome” in the Applicant’s case fell within that “sentencing range”.

63. [288]

    This Court should proceed upon the basis that the sentencing Judge applied these six sentencing decisions, in the manner stated in the sentencing remarks, to erect a sentencing range to be applied in sentencing the Applicant. In my view, her Honour fell into error in this respect.

64. [289]

    I would uphold the third ground of appeal.

Resentencing the Applicant

1. [290]

   As error has been demonstrated, it is necessary for this Court to exercise its own independent sentencing discretion for the purpose of determining whether lesser sentences should be imposed under s.6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

2. [291]

   For the purpose of resentencing, the Applicant relied upon his affidavit sworn 26 January 2020 and the affidavit of his solicitor, Andrew Luong, sworn 18 March 2020.

3. [292]

   It seems clear that her Honour’s recommendation that the Applicant enter into the Young Offenders’ Program, whilst in custody, has not been implemented.

4. [293]

   The Applicant’s affidavit stated that he had sought psychological or psychiatric counselling since entering custody on 4 June 2019 without success. He has experienced health issues whilst in custody. The Applicant has been subjected to threats in custody, which revive memories of bullying which he experienced at school.

5. [294]

   The Applicant is concerned that he has not had the opportunity to undertake psychological counselling which, as her Honour found, had been highly beneficial to him between April 2017 and June 2019.

6. [295]

   The Applicant has been employed in custody in the print shop as a graphic designer.

7. [296]

   Mr Luong’s affidavit annexes documents which indicate that, on 4 September 2019, the Applicant was assessed for and referred to participate in the Custody Based Sex Offender Program. However, on 12 February 2020, the referral was reviewed and it was noted that there was insufficient time remaining for the Applicant to complete that program.

8. [297]

   As a result, the Applicant has not been able to continue, in any form, psychological counselling which had played a significant part in his path towards rehabilitation at the time he was sentenced on 4 June 2019.

9. [298]

   The findings of the sentencing Judge concerning the objective gravity of the offences were not challenged in this Court and should be adopted for the purpose of resentencing.

10. [299]

    The Applicant’s youth and immaturity are significant factors on sentence and his moral culpability was reduced by the mental condition found to exist on sentence. These aspects also served to reduce the significance to be given on sentence to specific and general deterrence: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

11. [300]

    However, there were features of the offences which operated against the Applicant on sentence. This was a case where the guideposts to the appropriate sentence for the Applicant pointed in different directions: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476; [1988] HCA 14.

12. [301]

    The Applicant’s offences involved real young victims. Cybersex crimes involving real young victims render the offences more serious: R v Fuller [2010] NSWCCA 192 at [35], [45].

13. [302]

    Courts have emphasised the fact that cybersex offences involving communications by an offender with an undercover police officer posing as a child does not constitute a mitigating factor on sentence: Meadows v R at [12](a). An offence is no less reprehensible when an offender is communicating with a fictitious person believed to be a child: Rampley v R at [37].

14. [303]

    In the present case, the Applicant was aware that at least some of the victims were 14 years old. Despite his own youth and immaturity, the Applicant was aware of the vulnerability of these victims and deliberately chose to take advantage of them with the offences not being committed on the “spur of the moment”: Director of Public Prosecutions v SJK and GAS [2002] VSCA 131 at [61]-[62].

15. [304]

    Further, as noted earlier (at [126]-[128]), sentencing courts should approach cybersex offences involving real victims upon the basis that harm is done to those child victims: Adamson v R; R v Gavel.

16. [305]

    In this case, there was a victim impact statement from Victim A which addressed that issue directly. As in Martin v R [2019] NSWCCA 197 at [75], one of the Applicant’s victims made a victim impact statement which recounted the harm done to that young girl as a result of his offending. It is necessary to take the victim impact statement into account for the purposes of ss.16A(2)(ea), 16AAA and 16AB Crimes Act 1914 (Cth).

17. [306]

    Other young girls were harmed by the Applicant’s offences, as borne out by their messages to the Applicant which reflected fear, anxiety and distress as he placed increased pressure on them to provide him with child abuse images of themselves. The victims were exploited, threatened and manipulated by the Applicant for his own purposes.

18. [307]

    In my view, it remains the case that sentences of fulltime imprisonment are the only appropriate sentencing options for these offences having regard to all the circumstances of the case: s.17A Crimes Act 1914 (Cth); s.5 Crimes (Sentencing Procedure) Act 1999 (NSW).

19. [308]

    The six sentencing decisions relied upon by the Crown in the District Court assist by way of statements of principle contained in them. They do not assist by creation of a sentencing range to be deployed in the Applicant’s case. They are no more than examples of sentencing outcomes in dissimilar cases involving cybersex offences.

20. [309]

    It is appropriate to maintain (with some rounding) the 25% discount to reflect the utilitarian value of the Applicant’s pleas of guilty to each Commonwealth and State offence. In accordance with principle, the Applicant’s contrition and remorse will be taken into account in his favour without quantification.

21. [310]

    The custodial component of the sentences should reflect the minimum period which the Applicant should spend in custody having regard to all the circumstances of the case.

22. [311]

    The Applicant’s prospects of rehabilitation and reduction of his risk of reoffending will be substantially enhanced, in the public interest, by an extended period of conditional liberty as part of the overall sentencing outcome.

23. [312]

    For the purpose of s.6(3) Criminal Appeal Act 1912 (NSW), I am satisfied that lesser sentences should be imposed upon the Applicant.

24. [313]

    The overall effective sentence will comprise a total sentence of imprisonment for 22 months from 4 June 2019 with the Applicant to be released after 11 months on 3 May 2020, in accordance with ss.19AC(1) and 20(1)(b) Crimes Act 1914 (Cth), by way of a recognizance release order upon his entering into a recognizance in the sum of $1,000.00 to be of good behaviour for three years.

25. [314]

    The total effective sentence of 22 months’ imprisonment involves a measure of accumulation of the sentences for separate offences which involved different victims.

26. [315]

    It is appropriate to repeat the recommendation made by the sentencing Judge that the Applicant should undergo psychological or psychiatric counselling as part of his recognizance.

27. [316]

    I propose the following orders:

28. [317]

    N ADAMS J: I agree with the orders provided by Johnson J for the reasons provided by his Honour.

29. [318]

    IERACE J: I agree with the orders proposed by Johnson J and with his Honour's reasons.