Citation: R v Robert Leslie Watson [2018] NSWDC 185
Court: District Court of New South Wales
Date: 5 July 2018
Judge(s): Mahony SC DCJ
Background
The offender, an adult male based in Armidale, was the subject of a covert NSW Police operation conducted between February and July 2014. Police created a fictional online persona ("AOI") presenting as a 13 to 14 year old girl, and initiated contact with the offender via Facebook and Skype. Over approximately four months, the offender engaged in extensive online communications that were explicit in nature and directed toward facilitating a physical meeting for sexual purposes.
The offender was arrested on 1 July 2014 at a McDonald's restaurant in Armidale, where he had attended to meet AOI. Following his arrest, police executed a search warrant at his premises and seized an Apple Mac computer. Forensic examination of that computer's hard drive revealed child pornography material, forming the basis of two further charges.
The offender faced three offences under the Commonwealth Criminal Code 1995: using a carriage service to groom a person believed to be under 16 for sexual activity; transmitting child pornography material; and soliciting (receiving) child pornography material. He was tried separately on each set of charges and convicted by a jury on all three counts.
Legal Issues
- Whether the evidence supported conviction for using a carriage service to groom a person believed to be under 16, including whether the offender held the requisite intention to procure sexual activity and whether he could rely on a statutory defence of believing the recipient was at least 16
- Whether the offender was the author of transmitted child pornography material and the recipient of solicited material found on his computer
- How the three offences should be sentenced in aggregate, having regard to the totality principle and the degree to which the offending arose from a common course of conduct
Decision
On the grooming count, the jury rejected both defence arguments: that the Crown had not proved the requisite intention to procure sexual activity, and that the offender believed AOI to be at least 16. The agreed facts included the offender's admission of a sexual interest in AOI, and the communications themselves contained repeated, explicit references to sexual activity and persistent attempts to arrange a meeting.
On the child pornography counts, the offender's computer yielded forensic evidence of material transmitted and received via online communications. The nature of that material was described by the sentencing judge as extremely graphic and involving very young children. The jury rejected any suggestion that the offender was not the relevant author and recipient.
In approaching sentence, Mahony SC DCJ applied the totality principle, which requires a sentencing court to impose an aggregate sentence that reflects the full criminality of the conduct without being crushing. Because the transmit and solicit offences arose from the same general course of conduct, there was a strong argument for concurrency between those two sentences. However, given the duration of the offending and the gravity of the child pornography material involved, the court imposed some accumulation across all three offences.
The court arrived at an aggregate head sentence of 6 years imprisonment with a non-parole period of 3 years and 6 months. Initial commencement dates were corrected following an error in the bail report, with the revised non-parole period commencing 9 February 2018.
Orders Made
- Conviction for using a carriage service to groom a person under 16 years of age for sexual activity (s 474.27(1), Criminal Code 1995 (Cth))
- Conviction for using a carriage service to transmit child pornography material (s 474.19(1), Criminal Code 1995 (Cth))
- Conviction for using a carriage service to solicit child pornography material (s 474.19(1), Criminal Code 1995 (Cth))
- Non-parole period of 3 years and 6 months, commencing 9 February 2018 and terminating 8 August 2021
- Balance of term of 2 years and 6 months, terminating 8 February 2024 (total term: 6 years)
- Forfeiture of the Apple Mac computer (X0002978783) confirmed
Key Takeaways
- An aggregate sentence for multiple Commonwealth child exploitation offences must reflect overall criminality without producing a result that is disproportionate, requiring the sentencing court to balance concurrency and accumulation by reference to the totality principle.
- Where transmit and solicit child pornography offences arise from the same course of conduct, there is a strong prima facie case for concurrent sentences, though the duration and gravity of the conduct may justify some accumulation.
- A statutory defence of belief that a recipient was at least 16 years of age remains available under s 474.27(1) of the Criminal Code 1995 (Cth), but the jury found on the facts of this case that it was not made out.
- Forensic examination of seized computer hardware can establish both the transmission and receipt of child pornography material as distinct offences, even where the underlying communications overlap.
- The District Court treated the particularly young age of children depicted in the material, and the extended period of offending, as factors justifying some accumulation of sentences beyond what concurrency alone would have produced.
Legislation and Cases Referenced
Legislation:
- Criminal Code 1995 (Cth), ss 474.19(1)(a)(iii), 474.19(1)(a)(iv), 474.27(1)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Berryman v R [2017] NSWCCA 297
- JM v R [2014] NSWCCA 297
- Rampley v R [2010] NSWCCA 293
- R v Asplund [2010] NSWCCA 316
- R v Cahyadi [2007] NSWCCA 1
- R v De Leeuw [2015] NSWCCA 183
- R v Fuller [2010] NSWCCA 192
- R v Porte [2015] NSWCCA 174
- R v Simpson (2001) 53 NSWLR 70
- R v Van Ryn [2016] NSWCCA 1