The offender was sentenced following pleas of guilty to 3 counts of committing an act of indecency on a person under the age of 16 years while outside Australia contrary to s 50BC(1)(a) of the Crimes Act 1914, 1 count of sexual intercourse with a person under the age of 16 years while outside Australia contrary to s 50BA(1) of the Crimes Act 1914, and 1 count of submitting to an act of indecency on a person under the age of 16 years while outside Australia contrary to s 50BC(1)(b) of the Crimes Act 1914. The offender was also sentenced for state child exploitation offences. The offender appealed against the federal sentence on the grounds that the sentencing judge erred in considering the objective seriousness of offending, finding that offender lacked contrition, finding that offender’s conduct was premeditated, cumulating sentences for various counts, and reducing the plea discount.
Nature and Circumstances: Sentencing judge remarked that offending amounted to ‘a complete betrayal of what should have been innocent fun’. Offender submitted that the innocent origins of the activity were inappropriately used as a circumstance of aggravation. There is no substance to this ground. Sentencing judge’s description, while discursive and somewhat anecdotal, was accurate and did not purport to elevate the criminality by using the means by which offender breached the victim’s trust as an aggravating factor. The breach of trust informed the objective seriousness. Offender submitted that the offending is properly characterised as opportunistic. The steps taken by offender to conceal offending, the sustained course of conduct, and the evidence of grooming were proper grounding for the sentencing judge’s finding of calculated premeditation. Offender’s argument creates a false and unrealistic dichotomy between the opportunism inherent in the individual offences and the premeditation demonstrated by the course of conduct.
Contrition: Sentencing judge found that offender’s comments in an interview were ‘patently untrue, and the expected claims of remorse now being expressed need to be viewed with this history.’ Offender submitted that comments 2012 have limited significance to an assessment of remorse in 2019. There was no aggravation of sentence based on offender’s failure to confess. The remarks placed offender’s more recent expressions of remorse in context. Evidence of offender’s remorse came in the form of the plea of guilty and their responses to a psychologist that they pleaded guilty so as to not put the family through a trial. The factual findings as to offender’s remorse and the significance of earlier statements were matters for the sentencing judge to evaluate.
Totality: Offender submitted that the sentences for the federal offences should be wholly concurrent. Sentencing judges are entrusted with a wide discretion in determining degrees of concurrency and accumulation. Sentencing judge considered the interplay of the separate statutory regimes and the aggregate sentences imposed for the state and Commonwealth offences. Sentencing judge adjusted the commencement dates and proportion between head sentences and non-parole periods to give effect to the totality of the criminality. There was an appropriate degree of notional concurrency between the counts. This is particularly so bearing in mind the sentences indicated for each count and the distinct and separate acts of criminality encompassed by the individual counts. The sentences imposed for the individual counts was not sufficient to encompass the criminality in the other counts.
Guilty Plea: Offender submitted that the 20% discount for the guilty plea was improperly reduced from 25% based on considerations beyond offender’s control, namely the timing of the prosecution’s withdrawal of the most serious charge. No evidence was tendered at the sentencing hearing which illuminated the circumstances of the plea. Objectively, the plea was entered very late. While there may have been a satisfactory explanation for the delay, sentencing judge made no error in the absence of further evidence.
Leave to appeal granted. Appeal dismissed.
