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District Court 10 December 2018

R v McKeag

[2018] NSWDC 523

Sexual offences
CRIMINAL LAW SENTENCE VULNERABLE VICTIM

Citation: R v McKeag [2018] NSWDC 523
Court: District Court of New South Wales
Date: 10 December 2018
Judge: Judge W Hunt

Background

The offender, a 30-year-old married man, was sentenced for one charge of using a carriage service to send indecent material to a person under 16 years of age, contrary to s 474.27A(1) of the Commonwealth Criminal Code. The maximum penalty for that offence is seven years' imprisonment.

The offender and the victim (aged 15) had met in person through a shared interest in the card game "Magic the Gathering" at a shop in Port Macquarie. At the offender's invitation, the two began communicating via Facebook from late September 2016. The offender used his real-name profile throughout.

Over roughly four months, the communications escalated from discussion of the shared game to increasingly graphic and degrading sexual content. On 8 November 2016, the offender sent the victim a photograph of his erect penis. The matter was subsequently reported to police, who executed a search warrant at the offender's home and seized electronic devices. The offender exercised his right to silence when interviewed.

  • What was the appropriate sentence for the offence under s 474.27A(1) of the Commonwealth Criminal Code, having regard to all the circumstances?
  • How should objective seriousness be assessed, including the victim's vulnerability, the nature and duration of the communications, and any mitigating features?
  • Whether a fully suspended sentence was justified given the offender's personal circumstances and prospects of rehabilitation.

Decision

Judge Hunt assessed the objective seriousness of the offending by reference to several factors. The sexual content grew more graphic and more degrading over multiple days across a four-month period. The victim was inherently vulnerable as a person under 16, and the offender was aware she was inexperienced, had low self-esteem, and had concerns about her body image. The pre-existing social relationship between the two aggravated the breach of trust involved.

Certain features moderated the objective seriousness somewhat. The offender used his own Facebook account in his real name, making detection relatively straightforward compared with offenders who use false identities or anonymous accounts. There was no evidence of threats or demands for silence. The offending also appeared to have ceased voluntarily before the offender knew he had come to the attention of police.

On personal circumstances, the court accepted evidence of the offender's genuine remorse, insight into his conduct, psychological vulnerabilities stemming from childhood abuse, a stable relationship with his wife, and meaningful prospects of rehabilitation. These factors, combined with the absence of prior convictions, persuaded the court that the purposes of personal deterrence had largely been achieved.

The court held that the objective seriousness of the offending required a custodial sentence, but that a fully suspended term was appropriate in light of the offender's personal circumstances and rehabilitation prospects. The court drew on authority confirming that a suspended sentence is not "no punishment at all" but carries significant consequences and remains available to be activated on any breach.

Orders Made

  • Convicted of one offence contrary to s 474.27A(1) of the Commonwealth Criminal Code.
  • Sentenced to two years' imprisonment, immediately suspended upon the offender entering a recognizance under s 21B of the Commonwealth Crimes Act.
  • Recognizance: $500, without security, for a period of three years from the date of sentence.
  • Conditions of the recognizance:
  • Be of good behaviour.
  • Appear for sentence if called upon to do so.
  • Accept supervision of Community Corrections, including any recommended sexual offender counselling for such period as directed.
  • Report to the officer-in-charge of Community Corrections at Port Macquarie within seven days.

Key Takeaways

  • Under s 474.27A(1) of the Commonwealth Criminal Code, using a carriage service to send indecent material to a person under 16 carries a maximum of seven years' imprisonment, which the sentencing court treats as a yardstick for calibrating the appropriate sentence across the range of possible cases.
  • A victim's youth, inexperience, low self-esteem, and the offender's prior social relationship with that victim are all relevant aggravating features when assessing objective seriousness in this class of offence.
  • Where an offender uses their real identity and makes no attempt to conceal their age or location, that relative ease of detection is a factor that may reduce the objective gravity of the offending compared with cases involving deliberate concealment.
  • A fully suspended term of imprisonment remained available as a sentencing option where the offender demonstrated genuine remorse, significant personal disadvantage, and strong rehabilitation prospects, even for a serious Commonwealth offence of this kind.
  • The District Court emphasised, citing Elliot and Harris No 2 (1976) 13 SASR 516 and R v Asplund [2010] NSWCCA 316, that a suspended sentence is a sentence of imprisonment with real consequences: it sits over the offender's head for the entire operational period and can be activated upon any breach.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code, s 474.27A(1)
- Commonwealth Crimes Act, ss 16A, 16B, 17A, 21B

Cases
- R v Asplund; Asplund v R [2010] NSWCCA 316
- Elliot and Harris No 2 (1976) 13 SASR 516
- R v Nalos [2013] NSWCCA 90