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Court of Criminal Appeal 9 December 2010

Rampley v R

[2010] NSWCCA 293

Sexual offences
CRIMINAL LAW

Citation: Rampley v R [2010] NSWCCA 293
Court: NSW Court of Criminal Appeal
Date: 9 December 2010
Judge(s): McClellan CJ at CL, Latham J, Price J

Background

The applicant pleaded guilty in the Local Court to one charge under s 474.27(1) of the Criminal Code 1995 (Cth): using a carriage service to transmit indecent material to a person he believed to be a 12-year-old girl, with the intention of making it easier to procure her for sexual activity. In fact, the "girl" was an undercover investigator from the Western Australian Police Cyber Predator Team. The communications occurred between June and October 2007 and were sexually explicit, involving detailed instructions about masturbation and a request that the assumed identity meet him for sex.

The matter was committed to the District Court for sentence. Solomon DCJ sentenced the applicant to 2 years and 9 months imprisonment, with release on recognisance after 1 year and 6 months. The sentencing judge applied a 25 per cent discount for the early guilty plea. The applicant then sought leave to appeal, contending the sentence was manifestly excessive.

  • Whether the sentence of 2 years and 9 months (with a non-parole period of 1 year and 6 months) was manifestly excessive in all the circumstances.
  • Whether the fact that the applicant communicated with a fictitious person rather than a real child diminished the seriousness of the offence.
  • Whether the sentence fell outside the range established by comparable cases involving similar offences.

Decision

The Court of Criminal Appeal dismissed the appeal, with all three judges agreeing the sentence was within the sentencing judge's discretion and not manifestly excessive. The Court accepted that the criminality was of a very serious nature, while acknowledging the applicant had a prominent mitigating case, including his early guilty plea.

On the question of the fictitious victim, the Court affirmed the reasoning from the Western Australian Court of Appeal in Collier: the offence is no less serious when the offender communicates with a fictitious person they believe to be real than when communicating with an actual child. The Court noted that the legislature deliberately designed s 474.27(1) to permit law enforcement to use assumed identities, thereby enhancing the prospects of detecting and deterring offenders who seek to exploit the internet for the sexual corruption of children. The Court observed that many real victims may never report such exchanges, whether due to immaturity, fear of the offender, or fear of parental consequences.

The Court reviewed a range of comparable sentences from NSW, Queensland, Victoria, the ACT, and Western Australia. While acknowledging that sentences inevitably vary with individual circumstances, the Court found nothing in those cases to suggest the sentence imposed here was excessive. The sentencing judge's characterisation of the offending as serious was considered appropriate.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an offence under s 474.27(1) of the Criminal Code 1995 (Cth) is no less serious when the person communicated with is a fictitious identity operated by police rather than a real child.
  • A conviction for using a carriage service to groom a person believed to be under 16 carries a maximum penalty of 12 years imprisonment; a sentence of 2 years and 9 months (non-parole period 1 year and 6 months), after a 25 per cent guilty plea discount, was held to sit within the available range.
  • In dismissing the appeal, the Court emphasised that the legislative purpose behind s 474.27(1) was to empower law enforcement to identify and deter those who use the internet to sexually corrupt children, including through undercover operations.
  • Sufficient mitigating factors, including an early guilty plea, were already accounted for by the sentencing judge's discount; they did not reduce the overall sentence to the point of manifest excess.
  • Comparative sentencing analysis across multiple Australian jurisdictions indicated natural variation in outcomes depending on individual offence and offender circumstances, but no established pattern that rendered this sentence out of range.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 474.27(1) (using a carriage service to groom a person under 16)

Cases
- Western Australia v Collier (2007) 178 A Crim R 310
- DPP (Cth) v Hizhnikov [2008] VSCA 269
- R v Gajjar [2008] VSCA 266
- R v Shepheard [2008] ACTSC 116
- R v O'Shana (ACTSC, 1 August 2008, unreported)
- Tector [2008] NSWCCA 151
- R v Poynder [2007] NSWCCA 157
- R v Bozinovski (NSWDC, 4 June 2009, unreported)
- R v Lindsay (NSWDC, 16 December 2009, unreported)
- R v Singh (NSWDC, 19 May 2009, unreported)
- R v Budd (NSWDC, 2 October 2007)
- R v Porta (NSWDC, 23 October 2007)
- R v Holmes (NSWDC)
- Campbell [2004] QCA 342
- R v Kennings [2004] QCA 162
- Burden [2005] QCA; Hays [2006] QCA
- R v El Karhani (1990) 21 NSWLR 370
- R v Paull (1990) 20 NSWLR 427