Citation: R v Steven James McKenna [2015] NSWDC 250
Court: District Court of New South Wales
Date: 10 September 2015
Judge(s): Colefax SC DCJ
Background
The offender, a 27-year-old man from Queanbeyan, faced five charges arising from online conduct involving two young women, referred to in the judgment as Jessica and Maree. Jessica was 14 years old at the time of the relevant conduct; Maree was 15 when the conduct began.
The offender met Jessica through a teen dating website and, over time, exchanged sexually explicit material with her. The two agreed to meet in person in Bathurst in January 2014 for the purpose of sexual intercourse. Before the meeting occurred, Jessica's parents discovered the relationship and contacted police, who assumed Jessica's online identity and confirmed the planned meeting. When the offender arrived at the agreed location on 16 January 2014, he was arrested and has remained in custody since.
Separately, the offender had been communicating with Maree, exchanging sexually explicit images with her from the time she was 15. Police examining the offender's devices also found a large volume of additional child pornography material across multiple classification categories, ranging from Category 1 through to Category 5.
Legal Issues
- The appropriate sentences for each of five offences, including the applicable discounts for guilty pleas
- The objective seriousness of each offence relative to the range for that offence type
- The relevance and weight to be given to aggravating conduct, including manipulative and psychologically harmful communications with one of the victims
- The effect of the statutory framework preventing the imposition of aggregate sentences for Commonwealth offences, and whether reform of that framework is desirable
Decision
His Honour assessed the objective seriousness of the grooming and procurement offences as falling midway between the bottom and middle of the range for offences of that type. In relation to the offences involving Maree, his Honour found that the offender's manipulative and psychologically cruel conduct, including responding to Maree's self-harm images with callous and encouraging messages, elevated the seriousness of those offences to the same midpoint.
His Honour referred to the Court of Criminal Appeal's observation in R v Porte [2015] NSWCCA 174 that Category 1 child abuse material should not be assumed to be mild in content, and quoted McClellan JA's remarks from the Royal Commission into Institutional Responses to Child Sexual Abuse regarding the devastating and long-lasting effects of child sexual abuse, even at lower levels. These observations informed the sentencing approach to the possession offence.
A 20 per cent discount was applied to each sentence to reflect the guilty pleas. His Honour imposed individual sentences for all five offences with staggered commencement dates, producing a total effective sentence of five years with a non-parole period of three years and nine months.
His Honour noted with concern that, unlike State offences, Commonwealth offences are not amenable to aggregate sentencing orders under the applicable legislation. The judgment expressly urges the Commonwealth Parliament to consider introducing an aggregate sentencing regime for Commonwealth offences, describing the current position as undesirable.
Orders Made
- Convicted on all five counts: possessing child abuse material, using a carriage service to groom a person under 16, using a carriage service to procure a person under 16 for sexual activity, and two counts of using a carriage service to cause child pornography to be transmitted to self
- Possession offence and two transmission offences: sentence of 2 years 9 months each, with a non-parole period of 2 years commencing 16 January 2014
- Grooming offence: sentence of 3 years 2 months, with a non-parole period of 2 years commencing 16 January 2015
- Procurement offence: sentence of 3 years 2 months, with a non-parole period of 1 year 11 months commencing 16 November 2015
- Effective total sentence: 5 years imprisonment, non-parole period of 3 years and 9 months
- Confiscation order in respect of the seized laptop and mobile phone
- Confiscation order of $65 in accordance with signed short minutes of order
- Non-publication order continued in relation to the real names and identifying information of the two victims
Key Takeaways
- The District Court confirmed that even Category 1 child abuse material is not to be treated as mild or inconsequential at sentencing, consistent with the Court of Criminal Appeal's guidance in R v Porte [2015] NSWCCA 174.
- Manipulative and psychologically harmful conduct toward a victim, such as encouraging self-harm, can elevate the assessed objective seriousness of Commonwealth carriage service offences even where there was no physical contact between offender and victim.
- A 20 per cent sentencing discount applied across all five counts in recognition of guilty pleas, demonstrating the practical operation of that discount within child exploitation matters.
- Under the existing legislative framework, Commonwealth offences cannot be made subject to aggregate sentencing orders, which the District Court identified as a significant limitation. His Honour expressly called on the Commonwealth Parliament to address this gap.
- The judgment illustrates how staggered commencement dates are used to structure individual sentences into a coherent overall term where aggregate sentencing is unavailable for Commonwealth offences.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 91H(2) (possessing child abuse material)
- Criminal Code Act 1995 (Cth), s 474.27(1) (using carriage service to groom person under 16)
- Criminal Code Act 1995 (Cth), s 474.26(1) (using carriage service to procure person under 16 for sexual activity)
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(ii) (using carriage service to cause child pornography to be transmitted)
Cases
- R v Porte [2015] NSWCCA 174