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District Court 31 July 2020

R v McKeay

[2020] NSWDC 408

Sexual offences
SENTENCE POSSESS CHILD ABUSE MATERIAL NO PRIOR CRIMINAL HISTORY

Citation: R v McKeay [2020] NSWDC 408
Court: District Court of New South Wales
Date: 31 July 2020
Judge(s): Weinstein SC DCJ

Background

The offender, a man born in 1987, was sentenced following convictions for two offences arising from events in mid-2019. The first involved using a carriage service to procure a person under 16 years of age for sexual activity. The second was possession of child abuse material found on devices seized from his home.

The procurement offence arose after NSW Police Child Exploitation Internet Unit (CEIU) investigators located an advertisement on the classified website Locanto. The advertisement, posted by the offender, offered $1,000 to a teenage girl "for some fun." Police assumed the online identity of a 14-year-old Thai female and engaged the offender in conversation, first on Locanto and then over Skype across a two-week period.

The online exchanges were explicitly sexual throughout. The offender described in detail the sexual acts he expected, provided a photograph of himself, sent a screenshot of his bank account to prove he could pay, and agreed to a meeting at a train station during school hours. When arrested and interviewed, the offender claimed he had suspected the account was fake and said he had continued the conversation only to "scare her off," denying any intention to actually meet. The possession charge related to seven images of child abuse material found on electronic devices during the execution of a search warrant at his residence.

  • What was the appropriate sentence for using a carriage service to procure a person under 16 years for sexual activity, having regard to the objective seriousness of the conduct, the offender's subjective circumstances, and the plea of guilty?
  • Was a term of imprisonment warranted for the possession of child abuse material charge, given the small number of images, the offender's lack of prior criminal history, and the agreed position of the parties?
  • Whether a conviction without further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was appropriate for the possession offence.

Decision

On the procurement offence, the sentencing court assessed the objective seriousness of the conduct as significant. The offender had deliberately placed a targeted advertisement, engaged in detailed and escalating sexual conversations with someone he believed to be a 14-year-old girl, and took concrete steps toward a physical meeting. His explanation that he was merely testing how far the exchange would go was not accepted as mitigating the gravity of the offending.

The court weighed the offender's subjective circumstances, including his lack of any prior criminal history, and took into account his plea of guilty. Applying established sentencing principles, including those from Markarian v The Queen and Muldrock v The Queen, the court identified the relevant factors and exercised its sentencing discretion accordingly. Neither offence carried a standard non-parole period.

For the possession offence, the court noted that only seven images were involved and took into account their description in the agreed facts. The sentencing court found that the threshold required to justify a sentence of imprisonment under s 5 of the Crimes (Sentencing Procedure) Act 1999 had not been crossed. Both the Crown and defence counsel agreed that a conviction without further penalty under s 10A was appropriate, and the court made that order.

Orders Made

  • The offender was convicted of using a carriage service to procure a person under 16 years for sexual activity (s 474.26(1) of the Criminal Code (Cth)).
  • Sentenced to 2 years and 3 months imprisonment, backdated to 21 June 2019 (date of arrest).
  • To be released on 20 September 2020 upon entering a recognizance of $1,000 (without surety), with a good behaviour condition until 20 September 2021.
  • Convicted of possessing child abuse material (s 91H(2) of the Crimes Act 1900 (NSW)), but with no further penalty imposed (s 10A order).
  • A computer tower was forfeited to the Commonwealth pursuant to s 23ZD of the Crimes Act 1914 (Cth), on application by the Director of Public Prosecutions.

Key Takeaways

  • The District Court treated a targeted online advertisement directed at teenage girls, combined with sustained explicit messaging and concrete steps toward a meeting, as objectively serious conduct for the purposes of sentencing under s 474.26(1) of the Criminal Code (Cth).
  • A post-arrest claim that communications were intended to "scare off" the other party did not displace the sentencing court's assessment of the offending's gravity, particularly where the offender had taken active steps to arrange a meeting.
  • Where possession of child abuse material involved only a small number of images and the offender had no prior criminal history, a conviction without further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 was held to be available and appropriate.
  • No standard non-parole period applies to either offence considered in this matter, leaving the sentencing court with broad discretion guided by general sentencing principles, including those in Markarian and Muldrock.
  • Forfeiture of electronic devices to the Commonwealth under s 23ZD of the Crimes Act 1914 (Cth) was ordered on application by the Director of Public Prosecutions, following the seizure of multiple devices from the offender's premises.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.26(1)
- Crimes Act 1900 (NSW), ss 91FB, 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 10A, 21A
- Crimes Act 1914 (Cth), s 23ZD

Cases:
- DPP (Cth) v Boyle (A Pseudonym) [2016] VSCA 269
- DPP (Cth) v Haynes [2017] VSCA 79
- DPP (Cth) v Singh [2017] VSCA 146
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Markarian v The Queen [2005] HCA 25
- Minehan v R [2010] NSWCCA 140
- Muldrock v The Queen (2011) 244 CLR 120
- Power v R (1974) 131 CLR 623
- R v Asplund [2010] NSWCCA 316
- R v De Leeuw [2015] NSWCCA 183
- R v Gajjar (2008) 192 A Crim R 76
- R v Hutchinson [2018] NSWCCA 152
- R v Porte [2015] NSWCCA 174
- Tector v The Queen (2008) 186 A Crim R 133