List of Subheadings
Recent cases alert
R v Khan (No 11)  NSWSC 594 — people who witnessed and actively intervened in terrorism attack considered ‘victims of the offence’, distinguished from R v Nahlous  NSWCCA 90.
Section 16A(2)(d) provides that a court is to take into account the personal circumstances of any victim of the offence:
(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
(d) the personal circumstances of any victim of the offence
2. Scope of s 16A(2)(d)
Under the federal Act the personal circumstances of any victim of the offence is a sentencing factor that a court must take into account in sentencing federal offenders. Similar factors appear in state and territory legislation 1 but are not always as broadly drafted. See, for example, Crimes (Sentencing) Act 2005 (ACT) s 33(1)(d) which states ‘if the personal circumstances of any victim of the offence were known to the offender when the offence was committed—the circumstances’.
3. Presumption of harm to certain categories of victim
Under the common law the impact of the crime upon the victim has been recognised as a relevant sentencing factor. See, for example, Dixon-Jenkins (1991) 55 A Crim R 308, 316 where the Court stated that:
[I]t is always relevant for a court before sentence to take into account, on proper material, the impact which a crime actually had upon a victim (citations omitted).
The absence of harm to victims does not however preclude the offending from being serious. In Soyke v The Queen  NSWCCA 112, which concerned a number of computer related offences contrary to ss 477.1(1)(a)(i), 477.2(1), 478.1(1) and 11.1(1) of the Commonwealth Criminal Code, Schmidt J (Basten JA and Wilson J agreeing) stated at – that:
On appeal it was argued that in the absence of harm caused to the victims, the finding that the offending was serious, or particularly serious, was not open.
That may not be accepted …
[N]o error has been made shown in her Honour’s conclusion, notwithstanding that actual further damage did not result and that he did not obtain financial advantage. The substantial risks of damage which [the offender’s] actions gave rise to, may not be overlooked (emphasis added).
Courts have held that in certain situations the personal circumstances of a victim of an offence will give rise to a presumption of harm. In the state sentencing case of Clarkson v The Queen  VSCA 157, 2 Weinberg JA and Kidd AJA stated at  that:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent. It is for this reason that a child’s consent is more accurately referred to as ‘apparent’ or ‘ostensible’ consent. References to consent in these reasons should be understood as having that connotation (citations omitted) (emphasis added).
They continued at – stating that:
On ordinary principles, it is open to an offender to seek to demonstrate, to the requisite standard of proof, that the sexual activity in question did not have (or is unlikely to have) the harmful impact on the victim which the law presumes it to have. Put another way, it is open to an offender to lead evidence to rebut the statutory presumption of harm. To the extent that such a submission relied on the consensual nature of the sexual activity, the court would draw on its assessment of the circumstances in which the consent came to be given, in particular the age difference between the offender and the victim, the nature of the relationship between them, and the circumstances in which the sexual activity was initiated.
We think it likely that such an attempt at rebutting the presumption would succeed only in very limited circumstances. For obvious reasons, a statement from the child victim would be unlikely to satisfy the court that no harm had been caused or that there would be no long-term consequences. Independent expert evidence to that effect would ordinarily be essential. Moreover, it would only be in a very clear case that such evidence would warrant a material reduction in sentence. The task of a sentencing court is difficult enough without having to deal with gradations of harm to a child victim, particularly when much of the assessment of harm involves predicting long-term consequences (citations omitted) (emphasis added).
The presumption comports with the general sentencing principle that a sentencing court must take into account the impact of offending on the victim. … [Section] 16A(2) of the Crimes Act 1914 (Cth) relevantly provides that, in determining the sentence to be imposed for a federal offence, the court must have regard to:
(d) the personal circumstances of any victim of the offence;
(e) any injury, loss or damage resulting from the offence;
(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence — any victim impact statement for the victim; …
The presumption that the prohibited conduct will cause harm to the child victim is thus founded on the rationale that children will be harmed by premature sexual experience of all kinds, and must be protected from themselves and the potential for immature judgment.
 [T]he Victorian Director of Public Prosecutions (‘Director’) and the Commonwealth Director submit that the principles relating to the presumption of harm described in Clarkson apply equally to cybersex offences. We agree. The subject matter, text and purpose of the legislation concerned with sexual offences against children through the use of a carriage service rests upon the same presumption as exists in relation to offences committed ‘in person’, or in the presence of the child. The legislature, in enacting the provisions prohibiting the use of a carriage service to engage in sexual activity with a child, sought to implement society’s detestation of the practice of encouraging children to engage in inappropriate sexual behaviour, and to protect the child from immature decisions (emphasis added).
3.1 Where the presumption extends
[T]he Commonwealth Director conceded that the case for the presumption in respect of 16 and 17 year old minors ‘is inherently weaker or perhaps entirely unsustainable’. In our opinion, the latter part of that concession goes too far. It is clear that a presumption of harm applies in the case of victims of these offences under the age of 16. Parliament has determined that these offences should also apply to minors aged 16 and 17. The purpose of the amendment to extend the age threshold was, as described by the Attorney-General, to promote ‘the physical, sexual, emotional and psychological safety of all young people’. The amendments were made on several bases, including that it was assumed that the prohibited conduct harmed its victims. The harm that flows from child pornography offences is well recognised. Although the age of the victim may be a relevant circumstance where the offender attempts to rebut the inference of harm, the presumption remains a primary rationale for these statutory prohibitions. That is so, notwithstanding that there are other important reasons why such conduct is proscribed (emphasis added). 3
The presumption of harm will not extend to situations where the Court lacks proof regarding the ages of victims or situations involving undercover adult police operatives.
The appellant’s arguments that it may not be possible in all cases to identify the victim of cybersex offending, and that it is possible that adults (including police officers) may impersonate children, online, misconceives the circumstances under which the presumption is to be applied. Where the victim of offending is not a child or a minor, or where there is no evidence as to whether a child is involved, no inference that the victim has been harmed will arise. The presumption that the prohibited conduct has caused the victim harm will not be enlivened. It will be a question of fact in each particular case whether a child is the subject of any offending … (emphasis added). 4
3.2 Rebutting the presumption
As discussed in the state sentencing case of Clarkson v The Queen  VSCA by Weinberg JA and Kidd AJA at –, the presumption of harm will rarely be rebutted. In Merrill (a Pseudonym) v The Queen  VSCA 62, the Court held that the presumption of harm applied to extra-territorial sex offences involving children. The victim in the case had provided a victim impact statement to the court stating that ‘the offending did not have an emotional, psychological or physical impact on her.’ 5 Weinberg JA and Kidd AJA stated at – that:
Next, the fact that a child victim of these extra-territorial offences perceives (as this victim apparently did) that the sexual interaction or relationship might be to their benefit must take into account the realities of their dire social and economic circumstances. It therefore seems to us that it is really not to the point to say that the child victim in a particular case subjectively believed that he or she was better off. This just proves that the offender has taken advantage of the child’s dismal state of affairs in the very manner to which these offences are directed. It is an unhappy fact that children who find themselves trapped in such a grim life may well seize an opportunity for escape presented by offenders like the applicant. In our opinion, the fact that the victim perceived her plight to have improved, does not diminish the gravity of offending of this kind.
For similar reasons, the fact that the applicant subjectively believed that he was improving the life of the victim does not reduce his moral culpability. Self-justification of this kind can have no place in the sexual offending of children (emphasis added).
- See, eg, Sentencing Act 2017 (SA) s 11(b);Sentencing Act 1995 (WA) s 6(2)(b);Sentencing Act 1991 (Vic) ss 5(2)(daaa), 5(2)(da); Crimes (Sentencing) Act 2005 (ACT) s 33(1)(d); Penalties and Sentences Act 1992 (Qld) s 9(3)(c);Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(2)(a), (l); Sentencing Act 1997 (Tas) ss 11A(1)(b), (c). ↩
- Clarkson has been cited and approved in several Federal sentencing cases. See, eg, R v Kamara  ACTSC 294, –; Adamson v The Queen  VSCA 194, –; Merrill (a Pseudonym) v The Queen  VSCA 62. ↩
- See R v Conway  ACTSC 275, . ↩
- See also R v Conway  ACTSC 275, – where the presumption was held to apply to the offence of using a carriage service to transmit indecent communications to a person under 16 years of age contrary to s 474.27A of the Commonwealth Criminal Code. ↩
- Merrill (a Pseudonym) v The Queen  VSCA 62, . ↩