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District Court 16 September 2016

R v TELFER

[2016] NSWDC 421

Sexual offences
CRIMINAL

Citation: R v Telfer [2016] NSWDC 421
Court: District Court of New South Wales
Date: 16 September 2016
Judge: Judge S Norrish QC

Background

The offender was convicted by jury of 26 offences under the Criminal Code 1995 (Cth) following a trial of several weeks, with a verdict returned on 7 July 2016. He was acquitted of a further 13 counts on the same indictment. The offending spanned approximately two and a half years, from September 2009 to April 2012.

The offences arose from the offender's use of internet chat platforms, including MSN and Yahoo Chat, to communicate with persons who represented themselves as females under the age of 16. The offender adopted various online personas and, over this period, transmitted offensive and indecent material, engaged in conduct characterised as grooming, and transmitted child pornography through a carriage service.

The 26 convictions fell across four offence categories under the Criminal Code 1995 (Cth), each carrying different maximum penalties: offences of using a carriage service in an offensive way (maximum three years), grooming offences (maximum 12 years), transmission of child pornography via a carriage service (maximum 15 years), and a further category of carriage service offences involving indecent communications to persons believed to be under 16 (maximum seven years).

  • What sentence was appropriate across 26 separate Commonwealth offences, having regard to the varying maximum penalties and the objective seriousness of each category of offending?
  • How should the totality principle apply when structuring partially accumulative and concurrent sentences across a large number of charges?
  • What significance, if any, attached to the jury's acquittals on the 13 remaining counts in the same indictment?
  • How should the April 2010 amendments to the Criminal Code, which altered the elements required to prove certain offences under ss 474.27 and 474.27A, affect the sentencing analysis for offences committed before and after that date?
  • What weight should be given to the various factors in the s 16A(2) Crimes Act 1914 (Cth) checklist in fixing the appropriate aggregate sentence?

Decision

Judge Norrish sentenced the offender under Part 1B of the Crimes Act 1914 (Cth), applying s 16A, which requires the imposition of a sentence of a severity appropriate to all the circumstances of the offence. The court worked through the s 16A(2) factors in detail, with extensive written submissions from both parties addressing those considerations.

The court noted that the varying maximum penalties across the four offence categories provided a framework for assessing the relative objective seriousness of each type of conduct. The transmission of child pornography offences under s 474.19, carrying a maximum of 15 years, represented the most serious category, while the carriage service and indecent communications offences attracted lower maximum penalties and were capable of summary disposition in appropriate circumstances.

On the question of the acquittals, the court noted these were likely attributable to reasonable doubt about whether the offender believed the relevant persons were under 16, rather than any finding that the transmitted material was not indecent. The court treated this as relevant background but not decisive to the sentencing exercise.

Applying the totality principle, the individual sentences were structured as either concurrent or partially accumulative, producing a total effective sentence of five years imprisonment with a non-parole period of two years and nine months.

Orders Made

• Forfeiture order under s 23ZD Commonwealth Crimes Act for a black computer tower with LG disc drive and a GW computer tower with disc drive to be forfeited to the Commonwealth
• Total sentence of five years (sentences variously partially accumulative or concurrent as dictated by commencement and expiry dates)
• Non-parole period of two years and nine months
• Eligibility for release to parole in two years and nine months (subject to parole authority discretion)

The following sentence structure was pronounced:

  • Total sentence of five years imprisonment
  • Individual sentences structured as partially accumulative or concurrent, with commencement and expiry dates set accordingly
  • Aggregate non-parole period of two years and nine months
  • The offender was advised he would be eligible for release to parole at the expiry of the non-parole period, subject to the parole authority's determination

Key Takeaways

  • The District Court applied the Commonwealth sentencing framework under Part 1B of the Crimes Act 1914 (Cth), treating the s 16A(2) factors as a structured checklist to be addressed individually, with the overarching requirement being a sentence appropriate to the seriousness of the offending.
  • Varying maximum penalties across different offence categories served as a primary yardstick for calibrating the objective seriousness of each charge, with the 15-year maximum for child pornography transmission offences under s 474.19 anchoring the upper end of the range.
  • Where a large number of offences are to be sentenced together, the totality principle requires that individual sentences be structured (whether concurrent or accumulative) so that the aggregate sentence remains proportionate and does not exceed what is just for the overall criminality.
  • Acquittals on counts in the same indictment did not operate as bar to the sentencing court drawing factual inferences from the overall evidence, though the court was careful to confine their relevance and not treat them as aggravating findings.
  • The April 2010 amendments to the Criminal Code created a material distinction between the elements required to prove offences committed before and after that date, particularly regarding whether indecency of transmitted material needed to be established under ss 474.27 and 474.27A.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 474.17(1), 474.19(1), 474.27(1), 474.27A(1)
- Crimes Act 1914 (Cth), ss 4J, 16A, Part 1B

Cases
- Barbaro v The Queen [2014] HCA 2
- Bugmy v The Queen (1990) 169 CLR 525
- Fitzgerald v The Queen [2015] NSWCCA 226
- Hilli v The Queen [2010] HCA 45
- Makarian v The Queen [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- Power v The Queen (1974) 131 CLR 623
- R v Apslund [2010] NSWCCA 316
- R v Booth [2009] NSWCCA 89
- R v De Leeuw [2015] NSWCCA 183
- R v Poynder (2007) 171 A Crim R 544