Clarke-Jeffries v R

1. [1]

   SIMPSON AJA: The reasons given by Bellew J reflect my reasons for joining in the orders of 15 March 2019.

2. [2]

   BELLEW J: On 23 May 2018 Laughlan Clarke-Jeffries (the applicant) appeared before Acting Judge Delaney in the District Court for sentence in respect of the following charges:

   1. (1)

      Count 1 – Using a carriage service to procure a person under the age of 16 years to engage in sexual activity contrary to s 474.26(1) of the Criminal Code 1995 (Cth) (the Code).

   2. (2)

      Count 2 – Using a carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Code.

   3. (3)

      Count 3 – Making an unwarranted demand with menaces with the intention of making a gain contrary to s 249K(1)(a) of the Crimes Act 1900 (NSW).

3. [3]

   An offence against s 474.26 of the Code (count 1) is committed only where the offender is at least 18 years of age and the victim is, or the offender believes the victim to be, under the age of 16 years. The maximum penalty in respect of each of counts 1 and 2 is 15 years imprisonment. The maximum penalty in respect of count 3 is 10 years imprisonment.

4. [4]

   The sentencing judge imposed the following sentences:

5. [5]

   The total effective sentence imposed was imprisonment for 4 years and 4 months, with a non-parole period of 2 years.

6. [6]

   By notice dated 22 November 2018 the applicant sought leave to appeal on the basis that the sentence imposed was manifestly excessive.

7. [7]

   At the conclusion of the hearing before this Court on 15 March 2019, the following orders were made:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal allowed.

   3. (3)

      Sentences imposed in the District Court quashed.

   4. (4)

      In lieu thereof the applicant is sentenced as follows:

   5. (5)

      The applicant is to be released from custody forthwith.

8. [8]

   My reasons for joining in the making of those orders follow.

The circumstances of the offending

1. [9]

   The following summary of the applicant’s offending is drawn from an agreed statement of facts which was tendered before the sentencing judge.

2. [10]

   At the time of the offending the applicant was 18 years of age. In fact, he had turned 18 years of age on the same day as the commencement of the period of the offending in Count 1. The victim of his offending was a 15 year old female who resided with her parents and younger brother. The victim and applicant did not physically meet at any stage. However, they regularly corresponded, through their mobile phones, via the social media platforms ‘Instagram’ and ‘Snapchat’.

3. [11]

   Between about October 2016 and January 2017 the applicant and the victim exchanged between 3,500 and 4,000 messages, in the course of which the applicant requested that the victim meet with him to have sex. It should be noted that the terms of only a small number of the messages sent by the applicant were specifically set out in the facts. What the remaining messages he sent to the victim may have said, and whether each and every one of them was in the nature of a request for sex, is not known. That said, the terms of the messages sent by the applicant to the victim which were set out in the agreed facts were crude and explicit. In the face of those messages, the victim provided excuses explaining why she could not meet with the applicant, but the applicant persisted.

4. [12]

   On 19 October 2016 the applicant made a number of requests to the victim to send him photographs of her naked breasts. The victim ultimately complied with those requests, although before doing so she requested that the applicant not save them. One of the images that she sent clearly identified her face.

5. [13]

   After a period during which they had no contact, the applicant and the victim resumed exchanging messages in February 2017. On 26 February 2017 the applicant initiated a series of messages during which he requested that the victim meet with him to have sex. When the victim stated that she had school work to do, the applicant persisted with his request. The victim continued to decline. The applicant then told the victim to send more photos of her breasts. The victim asked the applicant not to make her do so. The applicant persisted, and then asked the victim to meet with him so that they could engage in oral sex. The messaging continued with the applicant putting pressure on the victim to either meet with him to have sex, or to send him more photos. The applicant persisted, notwithstanding the fact that the victim told him that she was having an anxiety attack as a consequence of his demands.

6. [14]

   At one point, the applicant said that he wanted to “take” the victim’s virginity, and sent messages to the victim in explicit terms describing the sexual acts in which he wished to engage with her. In the course of doing so, the applicant reminded the victim that he still had the previous photos which she had sent him in October 2016. The following messages were then exchanged:

7. [15]

   The applicant then demanded money from the victim, in differing amounts, of up to $500.00.

8. [16]

   The messaging continued with the victim attempting to, in effect, stall the applicant’s requests, before telling the applicant that she would be paid the following day. On 27 February 2017, the applicant sent a message to the victim asking if she had been paid. The victim stated that she had not.

9. [17]

   As a consequence of the victim confiding in a friend about what was occurring, the matter was reported to the police. The victim surrendered her mobile phone to police who undertook an analysis of it, revealing extensive messaging which had taken place between her and the applicant. The applicant was subsequently arrested. Upon his arrest, he also surrendered his mobile phone to police.

The objective seriousness of the offending – findings of the sentencing judge

1. [18]

   In terms of Count 1, the sentencing judge found that:

2. [19]

   In terms of Count 2 the sentencing judge found that:

3. [20]

   In terms of Count 3, the sentencing judge found that:

The applicant’s subjective case

1. [21]

   The applicant gave evidence in the sentence proceedings. He said that some years ago he had disclosed having been sexually assaulted by his step-brother as a child. That disclosure ultimately resulted in the applicant’s step-brother being charged with a number of offences. [12] The applicant told the sentencing judge that he had been under psychological care since about the age of 15, which generally coincided with the time at which he had reported the activities of his step-brother. [13]

2. [22]

   In terms of his offending, the applicant explained that he had met the victim online, in circumstances where they had added each other as “friends” on social media platforms. [14] He explained that having started to communicate with the victim, there had been a break in their communication, but that it had restarted due to his being “probably … like lonely” and needing someone to talk to. [15] The applicant described his mental health at about that time as unstable, and said that he was a person who did not have many friends. [16]

3. [23]

   When asked what was going through his mind at the time he was sending messages to the victim, the applicant said: [17]

4. [24]

   When asked how he felt towards the victim in light of the offending, the applicant said: [18]

5. [25]

   When asked what he would say if he could speak to the victim he said: [19]

6. [26]

   The applicant was then taken to the images which he had requested that the victim send him, and his subsequent use of those images to try and extract money from her. [20] When asked why he did that, the applicant said [21] :

7. [27]

   When asked how he felt generally about his actions surrounding the acquisition of the images, the applicant said: [22]

8. [28]

   The applicant told the sentencing judge [23] that when his charges were publicised he was subjected to negative comments on social media which culminated in his admission to the Shellharbour Hospital following a suicide attempt. He described his mental state at that time [24] as “very unstable”, giving rise to a feeling that he “didn’t want to live”.

9. [29]

   There was little challenge in cross-examination to the applicant’s evidence. The applicant freely admitted that he was an active and contributing participant in the exchange of thousands of messages with the victim, [25] and accepted that he knew exactly what he was saying at the time. [26]

10. [30]

    The applicant’s mother also gave evidence before the sentencing judge in relation to various aspects of the applicant’s background. She said [27] that the applicant had first been diagnosed with depression and anxiety at the age of 15, which coincided with the time that he had reported his step-brother’s offending. When asked to describe his mental health at around the time of the offending, the applicant’s mother said: [28]

11. [31]

    The applicant’s mother described [29] various events that had occurred when the applicant’s offending became public. They included [30] an incident in which the applicant was assaulted at a petrol station by someone who had become aware of his offending.

12. [32]

    A pre-sentence report tendered before the sentencing judge assessed the applicant as being at a medium to low risk of re-offending. He was described as being co-operative in the preparation of the report, and it was noted that he had the ongoing support of both his family and health professionals. The author of the report took the view that the applicant appeared to demonstrate insight into the impact of his offending on the victim.

13. [33]

    A report of Dr Bradley Jones, Clinical Psychologist, was also tendered in the applicant’s case on sentence. He reported [31] that as a consequence of his father’s gambling issues and alcohol abuse, the applicant’s parents had separated when he was six years of age. Between the ages of 6 and 14 the applicant spent every second weekend with his father and it was during these periods that he was sexually assaulted by his step-brother. The applicant’s relationship with his father broke down when he reported that abuse. Dr Jones diagnosed the applicant as suffering from Post-Traumatic Stress Disorder, as well as Major Depressive Disorder of moderate severity. He expressed the view [32] that at the time of the offending, the applicant had experienced intense arousal and sexually based urges that he was unable to control. He also observed [33] that the offending occurred when the applicant was 18 years of age, and thus at a time when he had not fully matured or developed complete self-regulation. Dr Jones concluded [34] that there was no evidence of any deviant interest(s), sexual pre-occupation or problems in behavioural or emotional self-regulation on the part of the applicant.

14. [34]

    Also tendered in the applicant’s case was a report of Dr Rodney Ward, Psychologist, who had treated the applicant upon referral from his General Practitioner. Dr Ward reached the same diagnoses as Dr Jones, and reported that the applicant’s scores on clinical testing were in the extremely severe range for both depression and anxiety. He concluded [35] :

The applicant’s subjective case – findings of the sentencing judge

1. [35]

   In assessing the applicant’s subjective case, the sentencing judge concluded that the applicant:

Other relevant findings of the sentencing judge

1. [36]

   The sentencing judge also found that:

Submissions of the applicant

1. [37]

   Counsel for the applicant, in both his written and oral submissions, took the Court to the various findings made by the sentencing judge. He submitted that the entirety of those findings were favourable to the applicant, and emphasised that a substantial term of imprisonment was nevertheless imposed. The effect of counsel’s submissions was that there was an inexplicable inconsistency between the findings and the sentence, to the point where the former were not reflected in the latter.

2. [38]

   Counsel for the applicant acknowledged that the offending was serious and that it occurred over a significant period of time. However, he emphasised the applicant’s youth, the evidence of his mental state at the time of the offending, and the sentencing considerations which flowed from those factors. Counsel also stressed those aspects of the applicant’s background to which I have referred, and submitted that on any view, the applicant had had a difficult upbringing, superimposed on which was the diagnosis of serious mental illnesses as a teenager.

Submissions of the Crown

1. [39]

   The Crown submitted that the offending in Counts 1 and 2 was objectively serious, as evidenced by:

2. [40]

   The Crown submitted that even though no sexual activity had taken place, the potential for the harm to the victim remained significant, and that such harm was not ameliorated by the fact that the applicant and the victim were close in age.

3. [41]

   As to Count 3, the Crown emphasised that the actions of the applicant were accompanied by a specific intention to achieve a particular outcome, namely a financial gain.

4. [42]

   The Crown conceded that the applicant’s youth, and his mental state, were relevant factors on sentence. However, it was submitted that the applicant had acted in a deliberate, persistent and dominating way for his own sexual gratification, and that his conduct was not to be viewed as the immature conduct of a child.

5. [43]

   The Crown also took issue with the proposition that there was little need to protect the community from the applicant. It was submitted that there remained a paramount public interest in protecting children from sexual abuse.

6. [44]

   In support of these submissions, the Crown took the Court to a number of other cases involving sentences imposed for offending contrary to s 474.26(1) of the Code, and submitted that the sentences imposed in such cases justified the sentence imposed upon the applicant. The Crown submitted that in all of the circumstances, it was not open to conclude that there must have been some misapplication of principle by the sentencing judge, or that the sentence imposed was so far outside of the range of sentence available that there must have been error.

Consideration

1. [45]

   In considering whether or not the sentence imposed was manifestly excessive, two matters must be acknowledged at the outset. Firstly, the applicant’s offending was, by its very nature, serious. It occurred over an extended period of time and involved sending multiple messages to the victim, some of which were in the crudest of terms. Secondly, a strong subjective case cannot result in the imposition of a sentence which is not properly reflective of, or which is disproportionate to, the objective seriousness of the offending. [50]

2. [46]

   Giving full weight to these matters, I was nevertheless persuaded that the ground of appeal had been made out, and that the sentence imposed was manifestly excessive. I reached that conclusion for a number of reasons.

3. [47]

   To begin with, the findings of the sentencing judge, both in terms of the objective seriousness of the offending and the applicant’s subjective case, were favourable to the applicant, to the point where there was a considerable displacement between those findings and the sentences which were ultimately imposed. In this regard, three matters were of particular significance.

4. [48]

   The first was the applicant’s youth. As I have already noted [51] , the applicant turned 18 years of age at the commencement of the period of offending in count 1, which was the most serious of the three counts. Counsel for the applicant pointed out in oral submissions that because it is an element of that offence that the sender of the relevant communication be at least 18 years of age, the applicant would not have committed an offence at all had he not turned 18. That circumstance, in particular, highlighted the applicant’s youth.

5. [49]

   The principles which govern the sentencing of youthful offenders are well known. They include the following: [52]

6. [50]

   Importantly, there was unchallenged evidence before the sentencing judge that immaturity had played a part in the applicant’s offending. The report of Dr Jones included the following [53] :

7. [51]

   Although the sentencing judge made reference to the applicant’s youth, he made no reference to this particular aspect of the evidence. The fact that he did not do so led me to the conclusion that he failed to take it into account. That evidence was, on any view, important. It established that the applicant was both emotionally and physically immature, and that his immaturity had materially contributed to his offending. It followed that the applicant’s criminality was less than would have been the case if the offending had been committed by an adult. The sentence which was imposed did not reflect those factors.

8. [52]

   The second matter of significance was the victim’s age. As previously noted, [54] an offence against s 474.26 of the Code is committed only where (inter alia) the victim of the offending is, or the offender believes the victim to be, under the age of 16 years. The victim in the present case was 15 years of age. This was not a case of a person of mature years grooming a much younger victim.

9. [53]

   The third matter was the applicant’s mental state. Dr Jones reported [55] that the applicant first began experiencing symptoms of depression as a teenager, secondary to the sexual abuse that he had suffered at the hands of his step-brother. His depression became worse when he made his report to the police, and reached a point where he experienced significant suicidal ideation in November 2017, shortly after his offending. There was an associated history of self-harm.

10. [54]

    There can be no doubt that the applicant’s mental state formed an important part of his subjective case. He was clearly suffering from a mental illness at the time of his offending and was an inappropriate vehicle for general deterrence [56] . The sentence imposed did not, in my view, reflect this factor having been given the weight that it deserved.

11. [55]

    I have previously noted that the Crown took this Court to a number of authorities which, it was submitted, supported the conclusion that the sentence imposed was not manifestly excessive. Leaving aside the fact that consistency in sentencing is not achieved by numerical equivalence, the cases relied upon by the Crown were distinguishable from the present case on a number of bases.

12. [56]

    In R v Gajjar [57] the appellant had pleaded guilty to an offence contrary to s 474.26 of the Code and was sentenced to 2 years and 6 months imprisonment, with a recognisance release order which saw him released after serving 8 months of that term. The applicant in that case was 28 years of age, substantially older than the present applicant. The Court noted [58] that there were several aggravating features associated with the offending in that case, including what was described as that applicant’s “calculated and predatory conduct” which was reflected in his having actively sought out a child in an internet chat room. The Court also concluded [59] that the applicant in that case had “displayed a level of cunning” by initially pretending to be a 20 year old female. None of those circumstances were characteristics of the present applicant’s offending.

13. [57]

    In R v Poynder [60] the respondent had pleaded guilty to two offences contrary to s 474.26 of the Code and had been sentenced to imprisonment for 3 years, with an order releasing him on a recognisance after serving 1 year and 3 months. This Court dismissed a Crown appeal against what was said to be the manifest inadequacy of that sentence. The respondent was 50 years of age at the time of the offending, and thus far older than the present applicant. Youth was therefore not a factor on sentence. Further, it was accepted in that case [61] that the sentencing judge had properly referred to all sentencing considerations, including general deterrence. Questions of general deterrence were, for the reasons I have already outlined, of reduced significance in the present case on account of the applicant’s mental illness.

14. [58]

    In Moore v R [62] the applicant was 54 years of age and was charged with an offence contrary to s 474.26 of the Code, as well as an offence of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). In respect of the first of those offences, he was sentenced to 4 years imprisonment with a non-parole period 2 years and 6 months. In respect of the second, he was sentenced to a fixed term of 2 years imprisonment. This Court [63] refused the applicant leave to appeal against the sentence imposed on the ground that it was manifestly excessive. The applicant had a previous conviction for the indecent assault of a child under the age of 16 at a time when the victim was under the applicant’s authority. Moreover, the sentencing judge was unable to reach a finding as to the applicant’s prospects of rehabilitation, did not find that he was remorseful, and concluded that he showed little insight into the consequences of his offending and callous disregard towards the victims who were involved. The sentencing judge also concluded that one of the most important considerations for offending of this nature was general deterrence. Those findings were contrary to those reached by the sentencing judge in the present case.

15. [59]

    The Crown also referred the Court to the decisions in Tector v R [64] and Gifford v R [65] . All that needs to be said in relation to those decisions was that each of them involved offending which was far more serious, rendering any comparative exercise somewhat futile.

16. [60]

    For all of these reasons, I concluded that the sentence imposed at first instance was manifestly excessive and the ground of appeal had been made out.

Re-sentence

1. [61]

   Having found error, it became necessary for this Court to re-sentence the applicant in the fresh exercise of the sentencing discretion [66] . In doing so, I adopted the findings of the sentencing judge [67] .

2. [62]

   This Court was asked to take into account, on the question of re-sentence, an affidavit of the applicant’s solicitor of 8 February 2019, annexed to which was a letter of confirmation of the availability of employment on the applicant’s release. The Court was also asked to take into account an affidavit of the applicant of the same date, in which he confirmed that he has had no misconduct charges whilst in custody, and that he is willing to undertake a sex offenders’ programme for which he registered shortly after being sentenced. The applicant also confirmed that he has been taking anti-depressant medication, that his mood has been relatively stable, and that he has had no thoughts of self-harm whilst in custody. He expressed a desire to obtain employment upon his release and said that he proposed to live with his mother because of the support that she offered him.

3. [63]

   In re-sentencing the applicant it was necessary for this Court to have regard to such of the mandatory factors in s 16A(2) of the Crimes Act 1914 (Cth) as were applicable. In the present case, those factors were as follows.

4. [64]

   Firstly, the nature and circumstances of the offence [68] are set out above [69] . The entirety of the applicant’s offending fell at the lower end of the scale.

5. [65]

   Secondly, the applicant expressed unequivocal contrition and remorse for his offending in the course of his evidence before the sentencing judge. [70] His expressions of remorse were not challenged in cross-examination and I had no doubt that they were genuine.

6. [66]

   Thirdly, the applicant pleaded guilty at the first available opportunity. [71] He was entitled to a discount to reflect the utilitarian value of that plea which I assessed at 25%.

7. [67]

   Fourthly, the applicant co-operated with the police by handing over his mobile phone in order that it could be examined and its contents assessed. [72]

8. [68]

   Fifthly, and for the reasons that I have stated, general deterrence assumed reduced significance in the present case. [73]

9. [69]

   Sixthly, there was nothing in the evidence which indicated that personal deterrence was a significant factor on sentence. [74]

10. [70]

    Seventhly, the applicant’s age, background and mental health considerations [75] are set out at length above, [76] all of which were significant factors in mitigation.

11. [71]

    Finally, the prospects of the applicant’s rehabilitation appeared overwhelmingly positive. [77] Amongst other things, he had the unequivocal support of his immediate family, he had been assessed at a medium to low risk of re-offending, he had employment available to him upon his release and had agreed to undertake the sex offenders’ programme for which he registered in custody.

12. [72]

    For these reasons I joined in the making of the orders previously set out. [78]

13. [73]

    CAMPBELL J: The reasons given by Bellew J are the reasons why I joined in the orders pronounced on15 March 2019.