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District Court 22 November 2018

R v KENYON

[2018] NSWDC 458

Sexual offences
CRIMINAL LAW COMMONWEALTH PARTICULAR OFFENCES SENTENCE SUBJECTIVE MATTERS

Citation: R v Kenyon [2018] NSWDC 458
Court: District Court of New South Wales
Date: 22 November 2018
Judge: King SC DCJ

Background

NSW Police investigators, posing as a 13-year-old girl on the text-based chat website "TeenChat", received messages from a user calling himself "Teacher." The offender identified himself as a 28-year-old British tourist travelling through Australia, though he was in fact 35. Over approximately eight days, communications moved from TeenChat to Skype and then to mobile phone calls.

The conversations progressed from requests for photographs and comments about the girl's physical appearance to discussions about meeting in person. The offender suggested the pretend juvenile skip school while her mother was at work, proposed being picked up in his campervan, and made references to kissing and implied further contact. He arranged to meet her at a Westmead address provided by police.

On 11 August 2017, police intercepted the offender as he drove his campervan toward the nominated address. He was arrested and, in a recorded interview, made full admissions. He acknowledged the girl had told him she was 13, that he had sought photographs of her, and that he had arranged the meeting. He was in custody from the date of arrest through to sentencing.

  • Whether the offender's conduct satisfied the elements of using a carriage service to procure a person under 16 years of age, contrary to s 474.26(1) of the Criminal Code (Cth)
  • What sentence was appropriate, having regard to the objective seriousness of the offending and the offender's subjective circumstances
  • How general and personal deterrence should be weighted in sentencing for this class of offence
  • What ancillary orders (recognisance release and forfeiture) were appropriate

Decision

King SC DCJ found the offending objectively serious. Although the explicit content of the communications was limited primarily to references to kissing, with only hints of further intent, the conduct was sustained, calculated, and plainly constituted an attempt to arrange a meeting with a child for sexual contact. The Judge rejected the offender's characterisation of the conduct as "online fantasy," noting that his own description of it as an "edge of danger" experience was inconsistent with the claim that he viewed it as purely imaginary.

The Judge accepted certain mitigating factors in the offender's subjective circumstances. He had no prior criminal history in Australia or the United Kingdom. He was lonely, recently separated from a partner, and aware she was pregnant when he left the UK. He pleaded guilty and made full admissions to police. These matters were weighed against the objective gravity of the offence and the need for general deterrence, which the Judge regarded as particularly significant in this class of case, consistent with the approach confirmed in R v Poynder.

The court also observed that the offender had likely felt a degree of impunity: he was operating under a false identity and false age in a foreign country, and was due to leave Australia within three days of the planned meeting. This calculative element, combined with the duration and escalating nature of the communications, informed the assessment of seriousness.

The sentence was fixed at two years and three months' imprisonment, backdated to the date of arrest on 11 August 2017. As the term fell below three years, the court was required to impose a recognisance release order rather than a non-parole period.

Orders Made

  • Sentence of two years and three months' imprisonment, commencing 11 August 2017 and expiring 10 November 2019
  • Recognisance release order: the offender to be released on 10 December 2018, after serving one year and four months
  • Good behaviour condition for the balance of the term (11 months)
  • Recognisance in the amount of $2,000 (unsecured)
  • Forfeiture of two HTC mobile phones to the Commonwealth pursuant to s 23ZD of the Crimes Act 1914 (Cth), on the application of the Commonwealth Director of Public Prosecutions
  • A sealed envelope placed on the court file marked "Private and Confidential"

Key Takeaways

  • Using a carriage service to procure a person under 16 under s 474.26(1) of the Criminal Code (Cth) carries a maximum penalty of 15 years' imprisonment, and the District Court treated general deterrence as a weighty sentencing consideration for this class of offence.
  • Sustained, escalating online communications directed toward arranging a physical meeting with a child were characterised as grooming conduct, even where the explicit sexual content was relatively limited.
  • A defendant's description of the conduct as "online fantasy" or driven by curiosity and loneliness did not excuse the behaviour, and was found to be undermined by the defendant's own acknowledgement of the risk involved.
  • Where a sentenced term falls below three years for a Commonwealth offence, a recognisance release order is required rather than the fixing of a non-parole period.
  • Ancillary forfeiture orders under s 23ZD of the Crimes Act 1914 (Cth) are available in respect of devices used in the commission of the offence, though the sentencing judge noted their limited practical utility given the ready availability of replacement devices.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth) 1995, s 474.26(1) (using a carriage service to procure a person under 16)
- Crimes Act 1914 (Cth), s 23ZD (forfeiture orders)

Cases
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- R v Poynder [2007] NSWCCA 157