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9
Court of Criminal Appeal 18 April 2013

R v Michel NAHLOUS

[2013] NSWCCA 90

Also reported as (2013) 228 A Crim R 503
Sexual offences
CRIMINAL LAW CROWN APPEAL AGAINST SENTENCE MANIFEST INADEQUACY

Citation: R v Michel NAHLOUS [2013] NSWCCA 90
Court: NSW Court of Criminal Appeal
Date: 18 April 2013
Judges: Hoeben CJ at CL, Davies J, Adamson J (judgment delivered by Adamson J; other members agreeing)

Background

The respondent, a 31-year-old man, pleaded guilty in the District Court to one count of using a carriage service to groom a person under 16 years for sexual activity, and five related counts of using a carriage service to send indecent material to a person under 16. The offending occurred over several days in late August and early September 2011 and involved Facebook messages, text messages, and phone calls with a 14-year-old girl who lived across the road from him. The messages contained sexually explicit content and persistent encouragement to keep the communications secret from her parents.

The sentencing judge, Nicholson DCJ, imposed 18 months' imprisonment, wholly suspended on condition the respondent entered into a three-year recognisance release order requiring good behaviour and supervision by Probation and Parole.

The Commonwealth Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, contending the wholly suspended sentence was manifestly inadequate, that the judge failed to give adequate weight to specific deterrence, and that the judge failed to properly consider the victim impact statement provided by the victim's mother.

  • Whether the wholly suspended sentence was manifestly inadequate for grooming offences of this nature
  • Whether grooming offences necessarily require a custodial sentence to be served in all cases
  • Whether the sentencing judge failed to give adequate weight to specific deterrence
  • Whether the sentencing judge erred in his treatment of the victim's mother's victim impact statement
  • Whether the word "victim" in s 16A(2)(d) of the Crimes Act 1914 (Cth) extends to the family members of the primary victim of a grooming offence

Decision

Manifest inadequacy and the question of a custodial sentence

The Court of Criminal Appeal rejected the proposition that grooming offences invariably require a sentence involving actual custody. While the offences are serious and the statutory maximum penalties are significant (12 years for the primary offence), the court held that sentencing must remain responsive to the particular facts of each case. The court was required to identify a specific error or a sentence so far outside the range of appropriate sentences as to constitute manifest inadequacy, before it could intervene. On the facts, including the respondent's plea of guilty, lack of prior relevant criminal history, and personal circumstances, the court was not persuaded that the sentencing discretion had miscarried on this ground.

Specific deterrence

The court read the sentencing judge's remarks on sentence as a whole, rather than extracting isolated passages, and found no failure to address specific deterrence. The remarks, properly understood, reflected adequate consideration of the relevant sentencing factors.

The victim impact statement of the mother

The third ground required the court to consider whether "victim" in s 16A(2)(d) of the Crimes Act 1914 (Cth) encompasses family members of the person directly victimised. Adamson J held that, in the context of online grooming offences, the word "victim" refers to the primary victim only, namely the person being groomed, and does not extend to the loved ones of that person. Unlike some state sentencing legislation, s 16A does not introduce the concept of a "family victim."

Accordingly, even if the sentencing judge had declined to take the mother's statement into account, that would not have constituted an error. The judge had plainly considered the primary victim's own statement. The court also noted that the mother's statement had not been sworn and the mother had not given oral evidence subject to cross-examination, which explained the sentencing judge's observation that it did not constitute evidence against the offender.

Orders Made

  • The Crown appeal was dismissed.

Key Takeaways

  • Grooming offences under the Criminal Code Act 1995 (Cth) do not automatically require an offender to serve actual time in custody; the appropriateness of a suspended sentence depends on the particular circumstances of the offending and the offender.
  • Under s 16A(2)(d) of the Crimes Act 1914 (Cth), "victim" in the context of online grooming offences means the primary victim, the person who was groomed, and does not extend to the family members of that person.
  • Where a sentencing judge's remarks are read as a whole, isolated passages that may appear to underweight a particular factor will not necessarily indicate error; appellate courts assess the remarks holistically.
  • No error was established in the sentencing judge's treatment of the victim's mother's impact statement, because the judge was not obliged under s 16A to treat family members as victims and had plainly considered the primary victim's own statement.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that a Crown appeal against sentence requires demonstration of a specific error or a sentence so clearly outside the available range as to constitute manifest inadequacy, not merely a conclusion that a different outcome would have been preferable.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A, 16A(2)(d), 16BA
- Criminal Code Act 1995 (Cth), ss 474.26(1), 474.27, 474.27A
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 28, 28(4)

Cases
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- R v Anderson [2012] NSWCCA 175
- R v Asplund; Asplund v R [2010] NSWCCA 316; 216 A Crim R 48
- R v Fuller [2010] NSWCCA 192
- R v Rampley [2010] NSWCCA 293
- R v Zamagias [2002] NSWCCA 17
- R v Zhu [2013] NSWSC 127
- Tector v R [2008] NSWCCA 151; 186 A Crim R 133
- DPP v John Francis O'Reilly [2010] VSC 138
- DPP v Rodriguez [2012] VCC 1216
- Western Australia v Collier [2007] WASCA 250; 178 A Crim R 310
- R v Burdon; Ex parte Attorney-General (Qld) [2005] QCA 147; 153 A Crim R 104
- Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33
- Elliott v Harris (No 2) (1976) 13 SASR 516