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17
Court of Criminal Appeal 4 July 2008

TECTOR v REGINA

[2008] NSWCCA 151

Also reported as (2008) 186 A Crim R 133
Sexual offences
CRIMINAL LAW SENTENCING APPEAL AGAINST SEVERITY OF SENTENCE OTHER RELEVANT CONSIDERATIONS DISCUSSED

Citation: Tector v Regina [2008] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 4 July 2008
Judge(s): Giles JA, Barr J, Hall J

Background

The applicant, a 41-year-old man, was convicted by jury in the District Court on three counts of using a carriage service to transmit a communication to a person under 16 years of age, with the intention of procuring that person to engage in sexual activity. The offences occurred across three dates in July and August 2006 and involved a 12-year-old boy. The first count concerned an online message sent via an internet café; the second and third counts involved telephone calls to the boy's mobile phone.

The sentencing judge in the District Court imposed sentences of 11 years imprisonment with a non-parole period of 7 years on each count, all to be served concurrently from 25 August 2006. The applicant sought leave to appeal against the severity of those sentences.

  • Whether the sentencing judge erred by failing to take into account the nature of the sexual activity the applicant intended to procure.
  • Whether the sentences imposed were manifestly excessive in all the circumstances.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding the original sentences of 11 years with a 7-year non-parole period to be manifestly excessive.

On the first ground, the Court considered the nature of the proposed sexual activity as a relevant factor in assessing the objective seriousness of the offending. However, the Court treated it as merely one factor among several, rather than the determining consideration. The offence under section 474.26(1) of the Criminal Code 1995 (Cth) carries a maximum penalty of 15 years imprisonment, and the Court regarded that maximum as a significant reference point in calibrating the appropriate sentence.

The Court also considered sentencing decisions made under comparable State legislation, including Queensland and Western Australian authorities, as part of its analysis of the sentencing range. Other relevant factors, including the applicant's custodial circumstances at the Junee Correctional Centre and his access to counselling, were addressed. The Court accepted that the applicant had access to individual counselling through his correctional facility, despite the applicant's initial affidavit suggesting otherwise.

Hall J, with whom Giles JA and Barr J agreed, concluded that an appropriate head sentence was 8 years imprisonment with a non-parole period of 5 years for each count. The three sentences were imposed concurrently.

Orders Made

  • Leave to appeal granted and the appeal allowed.
  • The District Court sentences of 11 years imprisonment with a 7-year non-parole period on each count were quashed.
  • In substitution, the applicant was sentenced to 8 years imprisonment on each of the three counts, dating from 25 August 2006 and expiring on 24 August 2014.
  • A non-parole period of 5 years was set for each count, dating from 25 August 2006 and expiring on 24 August 2011.
  • All sentences run concurrently.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the nature of the sexual activity intended to be procured is a relevant factor in assessing the objective seriousness of an offence under section 474.26(1) of the Criminal Code 1995 (Cth), but it is only one factor among several.
  • Under section 474.26(1), which carries a maximum of 15 years imprisonment, the maximum penalty itself is a relevant consideration when determining where a particular offence sits on the sentencing range.
  • Sentencing decisions made under analogous State legislation may be considered as part of assessing an appropriate sentence for Commonwealth carriage service offences, even where the legislative frameworks differ.
  • Original sentences of 11 years with a 7-year non-parole period for offences of this kind were found to be manifestly excessive, with 8 years (non-parole period of 5 years) accepted as appropriate on the facts of this case.
  • Custodial conditions, including access to counselling and rehabilitation programs, may be taken into account as part of the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 474.26(1), 474.27, 474.28(11)
- Crimes Act 1914 (Cth)
- Crimes Act 1900 (NSW)
- Telecommunications Act 1997 (Cth)
- Criminal Code Act 1899 (Q) and Criminal Code (Q)
- Penalties and Sentences Act 1992 (Q)

Cases:
- Markarian v The Queen (2005) 228 CLR 357
- Regina v Poynder (2007) 171 A Crim R 544
- State of Western Australia v Collier [2007] WASCA 250
- Regina v Burdon [2005] QCA 147
- Regina v Campbell [2004] QCA 342
- Regina v Hays [2006] QCA 20
- Regina v Kennings [2004] QCA 162
- Regina v McGrath [2005] QCA 463
- Regina v H (1981) 3 A Crim R 53
- Regina v Meehan [2007] VCC (unreported, Victorian County Court)