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District Court 6 November 2020

R v Shanmuganathan

[2020] NSWDC 817

Sexual offences
CRIME SENTENCE SOLICIT CHILD PORNOGRAPHY REFUGEE LIKELIHOOD OF DEPORTATION NO PRIOR CRIMINAL CONVICTIONS

Citation: R v Shanmuganathan [2020] NSWDC 817
Court: District Court of New South Wales
Date: 6 November 2020
Judge(s): Norrish QC DCJ

Background

The offender, a Tamil Sri Lankan refugee in his late thirties with no prior criminal history, was arrested in March 2019 after police seized his iPhone. Examination of the device revealed a series of sexually explicit communications conducted via WhatsApp over approximately nine to ten days in February 2019.

The offender had been communicating with someone he believed to be a 15-year-old girl. In fact, the recipient was a 16-year-old male who had taken over a WhatsApp conversation originally started by a female friend who had received an unsolicited message. During the exchanges, the offender described wanting to perform sexual acts on the person he believed to be a young girl, proposed meeting, solicited what he believed would be a sexual image, and transmitted videos of adult pornography.

The offender pleaded not guilty at arraignment and the trial proceeded over several days before he changed his pleas to guilty on three Commonwealth charges in July 2020. He had been in continuous custody from the date of his arrest.

  • What was the appropriate sentence across three related Commonwealth offences, taking into account their objective seriousness?
  • What weight should be given to the offender's personal circumstances, including his status as a refugee, the likelihood of deportation following release, and the time already served in custody?
  • How should the court structure the sentence to give practical effect to the time already spent on remand while avoiding the offender being released immediately without a transition period?

Decision

Norrish QC DCJ assessed each of the three offences as falling at the lower end of the range of objective seriousness for offences of this type. Several features contributed to that assessment: the person the offender was communicating with was not actually a young girl and therefore could not be corrupted or procured; the offending was not persistent, spanning roughly nine to ten days and not continuing after late February 2019; and the "child pornography" solicited amounted to a request for the person to expose themselves, which did not necessarily involve nudity and was qualitatively different from more serious child exploitation material.

His Honour also considered the character of the solicited material in context. The recipient, being male and aware of what was happening, was never going to comply with the request. The court acknowledged the Crown's submission that the recipient's active participation in the communications was not a mitigating factor in itself, but treated the reality of who the offender was actually communicating with as relevant to the nature and impact of the offending.

In terms of personal circumstances, the court gave weight to the offender's social isolation, lack of prior convictions, and the near-certainty that he would be deported to Sri Lanka upon release from custody. His Honour noted that deportation to a country where, as a Tamil, he had previously faced danger, constituted a significant additional hardship beyond the sentence itself. The court drew on established principles requiring that the prospect of deportation be treated as a relevant consideration in Commonwealth sentencing.

Given that the offender had been in custody since 26 March 2019, and that the time served had effectively exhausted what the court considered an appropriate period of imprisonment, His Honour structured the sentences to result in release to Commonwealth immigration detention in approximately a fortnight from the sentencing date, with recognizance release orders requiring good behaviour for defined periods thereafter.

Orders Made

  • Count 1 (use carriage service to procure a person under 16 for sexual activity): fixed term of imprisonment with a non-parole period, backdated to 26 March 2019, with release subject to a recognizance under s 20(1) of the Crimes Act 1914 (Cth).
  • Count 2 (use carriage service to solicit child pornography material): sentence structured to run concurrently, with a recognizance release order expiring 24 December 2021, requiring good behaviour for one year and one month from 25 November 2020.
  • Count 3 (use carriage service to transmit indecent communication to a person under 16): fixed term commencing 26 March 2019 and expiring 25 March 2020, subsumed within the other sentences.
  • No supervision conditions were imposed on the recognizances, as the court noted these would not be practical given the likelihood of the offender's transfer to immigration detention.
  • Effective release date to Commonwealth detention: on or around 24 November 2020.

Key Takeaways

  • The District Court confirmed that the prospect of deportation, particularly where return to the country of origin poses risks to the offender, is a relevant mitigating factor in Commonwealth sentencing and can bear on the structure and length of a sentence.
  • Where an offender has spent an extended period on remand, the sentencing court may structure orders to give full practical effect to that time, including where procedural delays have prolonged the period in custody.
  • Objective seriousness in offences involving the use of a carriage service to procure or solicit from a person believed to be under 16 can be assessed at the lower end where the actual recipient was not a child capable of being exploited, the offending was brief and non-persistent, and no actual meeting or exploitation occurred.
  • A finding that the recipient of sexually explicit communications was not who the offender believed them to be does not extinguish criminal liability, but it is a factual circumstance relevant to the objective gravity of the offending.
  • No supervision conditions were attached to the recognizance release orders, the court having found such conditions impractical given the offender's anticipated transfer to immigration detention upon release from prison.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 474.19(1), 474.26(1), 474.2A(1)
- Crimes Act 1914 (Cth), s 20(1)

Cases
- Gent (2005) 162 A Crim R 29
- Holder & Anor v R (1983) 3 NSWLR 245
- Imbornone v R [2017] NSWCCA 144
- Johnson v R [2004] HCA 15; 78 ALJR 616
- Kebriti v R [2019] VSCA 275
- Mill v R (1988) 166 CLR 59
- Minehan v R [2010] NSWCCA 140
- Palu v R [2002] NSWCCA 381
- Porte [2015] NSWCCA 174
- R v Poynder (2007) 171 A Crim R 544