AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 16 July 2020

R v Whale

[2020] NSWDC 383

Sexual offences

Citation: R v Whale [2020] NSWDC 383
Court: District Court of New South Wales
Date: 16 July 2020
Judge: Letherbarrow SC DCJ

Background

The offender was convicted by a jury of using a carriage service to transmit communications to a person he believed was under 16 years of age, intending to procure that person to engage in sexual activity with him. The offence occurred between 22 June and 12 July 2018, contrary to section 474.26(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is 15 years imprisonment.

The "person" the offender communicated with was in fact an Assumed Online Identity (AOI) operated by police investigators from the Child Exploitation Internet Unit of the NSW Police Force. The AOI identified itself as a 14-year-old girl from the very first exchange, and the offender acknowledged that age repeatedly throughout the communications.

The offender initially made contact via Seeking Arrangement, a "sugar daddy" dating website. He then moved communications to the Kik messaging application, where over several weeks he sent sexually explicit messages, directed the AOI through masturbation, discussed meeting in person, and spoke by telephone with the AOI to arrange a face-to-face meeting. He was arrested on 12 July 2018 when the Kik application was found on his seized mobile phone.

  • What sentence was appropriate for a single count of using a carriage service to procure a person believed to be under 16 for sexual activity, having regard to all the circumstances under section 16A(2) of the Crimes Act 1914 (Cth)?
  • Whether a recognisance release order was appropriate under section 19AC of the Crimes Act 1914 (Cth), given the sentence did not exceed three years, and if so, on what terms?
  • What period of actual custody did justice require the offender to serve before release?

Decision

The District Court sentenced the offender to 2 years and 6 months imprisonment, commencing 19 June 2020 and expiring 18 December 2022. The court assessed the appropriate sentence by reference to all the circumstances under section 16A(2) of the Crimes Act 1914 (Cth) and the approach endorsed by McHugh J in Markarian v The Queen [2005] HCA 25, as well as the general sentencing principles from Power v The Queen [1974] HCA 26.

Because the total sentence did not exceed three years, section 19AC of the Crimes Act 1914 (Cth) required the court to make a recognisance release order unless it determined that course was inappropriate. The court found no such reason to depart from the statutory default.

Drawing on the High Court's guidance in Hili v The Queen [2010] HCA 45, the court noted there is no fixed norm or percentage for the period a federal offender must serve before release. The critical question is what period of actual custody justice requires. The court determined that 9 months was the appropriate custodial period, with release to occur on 18 March 2021.

Orders Made

  • The offender convicted and sentenced to imprisonment for 2 years and 6 months, commencing 19 June 2020 and expiring 18 December 2022.
  • Recognisance release order made: the offender to be released after serving 9 months (on 18 March 2021).
  • Release subject to a recognisance of $1,000 to be of good behaviour for a period of 2 years and 3 months from the date of release.

Key Takeaways

  • Under section 474.26(1) of the Criminal Code Act 1995 (Cth), an offence of using a carriage service to procure a person believed to be under 16 carries a maximum of 15 years imprisonment, and there is no standard non-parole period.
  • Federal sentencing requires the court to apply Part 1B of the Crimes Act 1914 (Cth), not the standard NSW sentencing framework; all factors in section 16A(2) must be weighed in both imposing sentence and setting any recognisance release order.
  • Where a federal offender receives a sentence of three years or less, section 19AC of the Crimes Act 1914 (Cth) requires the court to make a recognisance release order unless reasons are given for departing from that course.
  • As confirmed in Hili v The Queen [2010] HCA 45, no fixed norm or percentage applies to determine how long a federal offender must serve in custody before release; the governing question is what the interests of justice require.
  • The communications occurred over several weeks and included explicit messaging, direction of the AOI through masturbation, exchange of images, and telephone arrangements to meet, all made with knowledge that the AOI claimed to be 14 years old.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 474.26(1)
- Crimes Act 1914 (Cth), Part 1B, ss 16A, 16A(2), 19AC

Cases
- Hili v The Queen [2010] HCA 45
- Markarian v The Queen [2005] HCA 25
- Power v The Queen [1974] HCA 26
- The Queen v Pham [2015] HCA 39
- Imbornone v R [2017] NSWCCA 144
- R v Togias (2001) 127 A Crim R 23
- R v X [2004] NSWCCA 93
- R v Taouk (1992) 65 A Crim R 387
- R v Fuller [2010] NSWCCA 192
- R v Elomarand Ors [2010] NSWSC 10
- R v Spadina [2015] NSWSC 933
- Tector v R [2008] NSWCCA 151
- R v Asplund; Asplund v R [2010] NSWCCA 316