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Court of Criminal Appeal 15 March 2019

Clarke-Jeffries v R

[2019] NSWCCA 56

Sexual offencesFraud & dishonesty
CRIMINAL LAW OFFENCES SENTENCE VICTIM 15 YEARS OF AGE NOT A CASE OF GROOMING APPLICANT RE

Citation: Clarke-Jeffries v R [2019] NSWCCA 56
Court: NSW Court of Criminal Appeal
Date: 15 March 2019
Judges: Simpson AJA, Bellew J, Campbell J

Background

The applicant, aged 18 at the time of the offending, sent thousands of messages to a 15-year-old female via Instagram and Snapchat over several months. The messages included explicit requests for sexual activity and demands that she send him nude photographs. The victim never physically met the applicant.

After a period of no contact, the applicant resumed messaging the victim in February 2017. He threatened to retain photographs she had previously sent him unless she paid him up to $500, framing the demand as an offer to "delete the pics and leave." The victim confided in a friend, who reported the matter to police.

The applicant was charged with three offences: using a carriage service to procure a person under 16 to engage in sexual activity (count 1), using a carriage service to solicit child pornography material (count 2), and making an unwarranted demand with menaces intending to make a gain (count 3). The sentencing judge in the District Court imposed a total effective sentence of 4 years and 4 months imprisonment with a non-parole period of 2 years. The applicant sought leave to appeal, contending the sentence was manifestly excessive.

  • Whether the total effective sentence of 4 years and 4 months imprisonment, with a non-parole period of 2 years, was manifestly excessive having regard to the sentencing judge's own findings about objective seriousness and the applicant's subjective circumstances.
  • How significant weight should be given to the applicant's age (barely 18 at the time of offending), his serious mental health history, his subjective circumstances, and his prospects of rehabilitation in determining the appropriate sentence.
  • Whether the sentencing judge gave sufficient weight to the principle that a longer non-parole period imposes a heavier burden on a young offender with a positive outlook for rehabilitation.

Decision

The Court of Criminal Appeal found that the original sentence was manifestly excessive in light of the sentencing judge's own favourable findings. The sentencing judge had assessed all three counts as below the mid-range of objective seriousness, found that this was not a case of grooming, noted the photographs were limited in number and not disseminated, and accepted a substantial body of mitigating factors in the applicant's favour.

Those mitigating factors included the applicant's age (he had turned 18 on the very day the offending in count 1 commenced), a serious history of mental health difficulties that were operating at the time of the offending, his own experience of child sexual abuse, his early guilty plea, remorse, and an assessment placing him at medium to low risk of reoffending. The Court found that the weight given to these factors in the original sentencing exercise was insufficient given the totality of the circumstances.

The Court also accepted that the applicant's strong prospects of rehabilitation, family support, employment prospects upon release, and willingness to undertake a sex offenders programme were matters that warranted a materially reduced sentence. Taken together, these considerations led the Court to re-sentence the applicant and order his immediate release from custody.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences imposed in the District Court quashed.
  • The applicant was re-sentenced as follows:
  • Count 2 (carriage service, soliciting child pornography): fixed term of 7 months imprisonment commencing 23 May 2018, expiring 22 December 2018.
  • Count 1 (carriage service, procuring person under 16): 2 years imprisonment commencing 23 May 2018, expiring 22 May 2020, with a recognisance release order after serving 9 months (from 23 February 2019 to 22 May 2020).
  • Count 3 (unwarranted demand with menaces): fixed term of 7 months imprisonment commencing 23 July 2018, expiring 22 February 2019.
  • The applicant was released from custody forthwith.

Key Takeaways

  • A sentencing court's own findings of below mid-range objective seriousness across all counts, combined with substantial mitigating factors, must be reflected proportionately in the sentence ultimately imposed. A failure to do so may ground a successful appeal on manifest excess.
  • Where an offender was barely 18 at the time of offending, the Court of Criminal Appeal confirmed that youth is a significant mitigating consideration, particularly when combined with serious mental health issues that were operative during the offending.
  • The distinction between grooming and persistent but non-grooming conduct was material to the Court's assessment of objective seriousness. The sentencing judge expressly found this was not a grooming case, which was a factor relevant to placing the offending below the mid-range.
  • Positive rehabilitation prospects, including family support, low-to-medium reoffending risk, employment availability, and willingness to participate in treatment programmes, attracted meaningful weight in re-sentencing a young first-time offender.
  • Under s 16A(2) of the Crimes Act 1914 (Cth), which governs federal sentencing considerations, the Court weighed the nature and circumstances of the offences alongside the applicant's personal circumstances, early plea, remorse, and rehabilitative prospects as a combined whole rather than treating them as isolated factors.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 474.19(1)(a)(iv), 474.26(1)
- Crimes Act 1900 (NSW), s 249K(1)(a)
- Crimes Act 1914 (Cth), s 16A(2)

Cases:
- Director of Public Prosecutions (Cth) v Del La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Gifford v R [2016] NSWCCA 302; (2016) 263 A Crim R 373
- Kentwell v R [2014] HCA 37; (2014) 252 CLR 601
- KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
- Moore v R [2018] NSWCCA 26
- R v Dodd (1991) 57 A Crim R 349
- R v Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76
- R v Poynder [2007] NSWCCA 157; (2007) 171 A Crim R 544
- Tector v R [2008] NSWCCA 151; (2008) 186 A Crim R 133