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District Court 20 September 2019

R v Flynn

[2019] NSWDC 806

Sexual offences
SENTENCING COMMONWEALTH OFFENDER RELEVANT FACTORS ON SENTENCING ADMISSIONS EARLY PLEA ILL HEALTH.

Citation: R v Flynn [2019] NSWDC 806
Court: District Court of New South Wales
Date: 20 September 2019
Judge: Haesler SC DCJ

Background

The offender, a man from the Wollongong area, entered an online chatroom designed for teenagers in June 2018. He communicated with a person who presented as a 14-year-old girl. That person was, in fact, a police officer operating under an Assumed Online Identity (AOI).

The offender moved the conversation from the chatroom to Skype, where the account he used bore his real name. Over a series of exchanges, he made sexually suggestive comments and described sexual conduct he wished to engage in with the apparent child. The possibility of a meeting at a motel in the Wollongong area was also raised.

The offender was arrested in January 2019. He made frank admissions to police, acknowledged he knew he was speaking to teenagers, and entered an early guilty plea to a charge of using a carriage service to groom a child for sexual activity contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth).

  • What sentence was appropriate for a Commonwealth offender who used an online carriage service to groom a person he believed to be a child, where the "child" was in fact a police decoy?
  • What weight should be given to subjective factors, including early guilty plea, frank admissions, cooperation with police, ill health, and psychological assessment?
  • Was a custodial sentence required, and if so, to what extent should the non-parole period reflect the offender's vulnerability and time already served in custody?

Decision

Haesler SC DCJ confirmed that a custodial sentence was necessary. The maximum penalty of 12 years imprisonment under s 474.27(1) of the Criminal Code Act 1995 (Cth) signalled the seriousness with which Parliament regarded this type of offending. The court cited Rampley v R for the proposition that the legislature created the offence in a form that could be committed against police decoys precisely to enhance detection and deter misuse of the internet for the sexual corruption of children.

The court identified general deterrence as the paramount sentencing consideration in cases of this kind, consistent with the NSW Court of Criminal Appeal's approach in R v Asplund. The community, the court observed, must understand that attempting to induce children into sexual activity through online platforms will not be tolerated.

On the offender's subjective case, the court accepted that the risk of re-offending was low, and that the offender's arrest and imprisonment had already had a significant personal impact. The court gave weight to his early guilty plea, frank cooperation with police, psychological diagnosis of persistent depressive disorder, and serious health vulnerabilities, including heart problems, diabetes, and an amputation resulting from a hospital-acquired infection during custody.

Taking all matters into account, including the early guilty plea discount and the offender's poor health and personal circumstances, the court imposed a total sentence of one year and eight months, backdated to the date of arrest. The court was satisfied that the custodial portion of the sentence, approximately seven months and 29 days, was sufficient given the lesson had been learned and the practical limitations on the offender.

Orders Made

  • The offender was convicted and sentenced to one year and eight months imprisonment (without hard labour), commencing 23 January 2019.
  • The offender was directed to be released immediately (on the date of sentence) upon entering into a recognizance of $400 under s 20(1)(b) of the Crimes Act 1914 (Cth).
  • Conditions of release included: good behaviour for one year; obligation to appear for sentence if called upon for any breach; supervision by NSW Community Corrections for one year, with compliance with all reasonable directions (with discretion for Community Corrections to delete supervision); and reporting to the Wollongong Community Corrections office within seven days.
  • A forfeiture order was made as sought, without objection.

Key Takeaways

  • Under s 474.27(1) of the Criminal Code Act 1995 (Cth), the offence of using a carriage service to groom a child is made out even where the "child" is a police officer using an assumed online identity. The legislature expressly intended this to assist detection and deter online predatory conduct.
  • General deterrence is the paramount sentencing consideration in grooming cases of this kind, as confirmed by the Court of Criminal Appeal in R v Asplund.
  • A combination of subjective factors, including early guilty plea, frank police admissions, a psychological diagnosis, serious health deterioration during custody, and family interdependence, can collectively support an earlier transition to supervised release, though they do not displace the need for a custodial term.
  • The District Court treated the fact that no actual child was involved as relevant to the likelihood of the offending progressing to physical contact, but this did not diminish the seriousness of the offending or the need for imprisonment.
  • Sentencing in this area reflects a broader law enforcement strategy: police are permitted to assume online identities specifically to identify and prosecute would-be offenders, and sentences are calibrated to reinforce that deterrent purpose.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.27(1)
- Crimes Act 1914 (Cth), ss 16A, 20(1)(b)

Cases:
- R v Asplund; Asplund v The Queen [2010] NSWCCA 316
- Rampley v R [2010] NSWCCA 293