Citation: R v Shashank Singh [2009] NSWDC 120
Court: District Court of New South Wales
Date: 19 May 2009
Judge(s): Cogswell SC DCJ
Background
The offender, a 29-year-old man, used an online chat room to communicate with a person he believed to be a 14-year-old girl. The person was in fact an undercover Australian Federal Police operative, but that did not affect the commission of the offence. Over approximately two weeks in April 2008, the offender engaged in three substantial online conversations with this person.
During those conversations, the offender made explicit sexual inquiries, directed the person to a pornographic website, encouraged her to masturbate, and repeatedly sought to arrange a physical meeting. He was arrested on 14 April 2008 before any meeting could take place. Following a jury trial, he was convicted of using a carriage service to procure a person under 16 to engage in sexual activity, contrary to s 474.26(1) of the Criminal Code 1995 (Cth).
At the time of the offending, the offender was subject to a good behaviour bond. He pleaded not guilty and contested the trial, though the sentencing judge took into account some evidence of remorse that emerged during proceedings.
Legal Issues
- Where the offence fell on the spectrum of objective seriousness for the purpose of sentencing
- Whether alternative sentencing options such as community service or periodic detention were appropriate
- What weight to give to mitigating factors, including the absence of a real child victim, the absence of physical materials, prior criminal history, and evidence of remorse
- Whether the offender's circumstances while in custody (serving time on protection) warranted any reduction in sentence
Decision
Cogswell SC DCJ found the offending to be of significant objective seriousness. The conduct was characterised as a "sustained, persistent and calculated course of predatory conduct," involving explicit sexual communications, direction to pornographic material, and repeated attempts to arrange a meeting. The age gap of approximately 15 years between the offender and his believed victim was treated as a meaningful aggravating factor.
Some mitigating factors were accepted. The absence of a real child victim, the lack of physical materials found on arrest, and the absence of any financial inducement each took "the edge off" the seriousness to a modest degree. However, the judge noted that the offence was committed while the offender was on a good behaviour bond, which weighed against him.
The judge assessed an appropriate overall sentence at five years imprisonment. Two factors led to a reduction to four years: some evidence of remorse, and the finding that the sentence would be served under the more restrictive conditions of protection within custody. Full-time imprisonment was accepted by both parties as the only appropriate penalty, with community service and periodic detention ruled out.
A non-parole period of two years was fixed. The sentence was backdated to 2 January 2009 to account for 138 days already served in pre-sentence custody.
Orders Made
- Four years imprisonment imposed for the offence of using a carriage service to procure a person under 16 for sexual activity
- Non-parole period fixed at two years
- Sentence and non-parole period backdated to commence 2 January 2009
- Sentence to expire 1 January 2013; non-parole period to expire 1 January 2011
Key Takeaways
- Under s 474.26(1) of the Criminal Code 1995 (Cth), the offence is complete even where the supposed child victim is an undercover police operative rather than a real minor; the substitution makes no difference to criminal liability.
- A conviction for this offence does not require that a real child be harmed, but the absence of an actual child victim was treated as a modest mitigating factor when assessed against the overall gravity of the conduct.
- Sustained, persistent attempts over multiple communications to arrange a physical meeting, combined with directing the person to pornographic material and encouraging self-stimulation, placed this offending at a serious point on the sentencing range.
- Serving a sentence under protection conditions within custody was accepted by the District Court as a legitimate basis for reducing the head sentence, reflecting the more restrictive nature of that custody.
- Committing the offence while subject to an existing good behaviour bond was treated as an aggravating circumstance that weighed against the offender in the overall sentencing assessment.
Legislation and Cases Referenced
Legislation:
- Criminal Code 1995 (Cth), s 474.26(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- The Queen v Gajjar [2008] VSCA 268
- R v Poynder (2007) 171 A Crim R 544