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14
Court of Criminal Appeal 22 October 2010

R v Fuller

[2010] NSWCCA 192

Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE GUILTY PLEA WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Fuller [2010] NSWCCA 192
Court: New South Wales Court of Criminal Appeal
Date: 22 October 2010
Judge(s): McClellan CJ at CL; Hislop J; Barr AJ

Background

The respondent, an ordained Roman Catholic priest serving as a parish priest in Liverpool, pleaded guilty in the Local Court to using a carriage service to transmit communications to a person he believed to be a 13-year-old girl, with the intention of procuring sexual activity. The offence, committed between July and August 2009, carried a maximum penalty of 15 years imprisonment.

In reality, the respondent had been communicating with an assumed online identity created by police. Over 13 separate online conversations, he initiated explicit sexual discussion, transmitted live video of himself engaging in sexual acts, and ultimately arranged a meeting at a Parramatta location, where he was arrested. At sentencing, the District Court imposed a fixed term of six months imprisonment, allowing a 25 per cent reduction for the utilitarian value of the early guilty plea.

The Crown appealed that sentence to the Court of Criminal Appeal, arguing it was manifestly inadequate and that the sentencing judge had erred in identifying and applying certain mitigating factors.

  • Whether the District Court sentence was manifestly inadequate for an offence of this nature and seriousness.
  • Whether the sentencing judge erred in treating the respondent's vow of celibacy as a Catholic priest as a mitigating factor.
  • Whether the sentencing judge erred in treating the absence of an actual child victim as creating a situation akin to entrapment, and in treating that as a mitigating factor.

Decision

The Court of Criminal Appeal upheld the Crown appeal, finding the original sentence of six months fixed imprisonment to be manifestly inadequate. The Court identified two specific errors in the sentencing judge's approach that had resulted in an unduly lenient outcome.

On the vow of celibacy, the Court found this was not a legitimate mitigating factor. A vow of celibacy is a religious commitment; the respondent's breach of it was a matter between him and his Church, not a circumstance that reduced his criminality or warranted a lesser sentence from a criminal court.

On the absence of an actual victim, the Court rejected the sentencing judge's characterisation of the police operation as analogous to entrapment. The legislature had specifically created the offence to address conduct directed at fictitious as well as real persons, making clear that detection through undercover police activity was a foreseeable and intended mechanism. The absence of a real child victim could not, in that context, be treated as a mitigating circumstance.

The Court acknowledged the respondent's guilty plea, remorse, and good prospects of rehabilitation. However, it found the overall sentence needed to reflect both the seriousness of the offence and the need for general deterrence. Because the original sentence had already been served by the time of the appeal, the Court declined to impose further actual imprisonment but extended the total term to 18 months, including a period of recognisance to provide supervision and a sanction against reoffending.

Orders Made

  • Crown appeal upheld.
  • The District Court sentence quashed.
  • A term of imprisonment of 18 months imposed, dating from 24 February 2010 and expiring 23 August 2011, with the respondent released on or after 24 August 2010 upon entering into a recognisance of $1,000 to be of good behaviour for the remainder of the term.
  • The respondent's Dell laptop computer and Bluetooth cable forfeited pursuant to s 48(2) of the Proceeds of Crime Act 2002 (Cth).

Key Takeaways

  • A religious vow of celibacy is not a mitigating factor in criminal sentencing; it is a commitment personal to the offender and his or her institution, not a circumstance that reduces the gravity of the criminal conduct.
  • Under s 474.26(1) of the Criminal Code 1995 (Cth), the offence of using a carriage service to procure a person believed to be under 16 applies equally where police deploy an assumed online identity; the absence of a real child victim does not constitute entrapment or a mitigating factor.
  • The Court of Criminal Appeal confirmed that s 68A of the Crimes (Appeal and Review) Act 2001 (NSW), which abolished the "double jeopardy" principle on Crown appeals, applies to Commonwealth offences, following its earlier decision in Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194.
  • Where a sentence has already been served by the time a Crown appeal is determined, the Court retains a discretion not to impose further actual imprisonment, but may extend the overall term to reflect offence seriousness and impose a recognisance period for supervision purposes.
  • Sentences for online child solicitation offences must reflect both the punitive and general deterrent purposes of sentencing, even where the offender has pleaded guilty and demonstrated remorse.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 474.26(1)
- Crimes Act 1914 (Cth)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Proceeds of Crime Act 2002 (Cth), s 48(2)

Cases
- Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194
- R (Cth) v Poynder [2007] NSWCCA 157
- R v Gajjar [2008] VSCA 268
- R v Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69
- Tector v R [2008] NSWCCA 151; (2008) 186 A Crim R 133
- Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310