R v TBE[2024] QCA 204

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  I agree with Kelly J.
2. [2]
   BODDICE JA:  I agree with the reasons for judgment of Kelly J and the orders proposed by his Honour.
3. [3]
   KELLY J:  On 23 July 2024, the applicant pleaded guilty to one count of using a carriage service to groom a person under 16 years of age, an offence under s 474.27(1) of the Criminal Code Act 1995 (Cth), for which the maximum penalty was 15 years imprisonment.  The offence was a “Commonwealth child sex offence” within the meaning of that expression as contained in s 3 of the Crimes Act 1914 (Cth) (“the Crimes Act”).  Section 20(1)(b) of the Crimes Act relevantly provides:

“Conditional release of offenders after conviction

1. Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:

…

2. sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security …:

…

2. if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances—after the person has served a specified period of imprisonment …; or

3. if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances—immediately.”

4. [4]
   The sentencing judge was not satisfied that there existed exceptional circumstances^[1] and sentenced the applicant to a term of imprisonment of 21 months to be released from custody after he had served four months, upon his giving security by recognisance in the sum of $1,000 on the conditions that he be of good behaviour for three years and supervised on parole for 12 months.
5. [5]
   The applicant applied for leave to appeal his sentence on the grounds that the judge erred in finding that exceptional circumstances had not been established and, in the alternative, imposed a manifestly excessive sentence.

The sentencing hearing

The agreed facts

6. [6]
   The applicant was sentenced by reference to an agreed statement of facts.^[2]  The offending occurred between 14 April 2023 and 5 June 2023, when the complainant was aged 15 years old.  The applicant had known the complainant since the complainant was 13 years old.  The pair had met as competitors at a gel-blasting competition.  Following that event, the applicant became Facebook friends with the complainant’s stepfather and invited the stepfather to join a gel-blasting Facebook group so that he might receive notifications of competitions and events.  Thereafter, the complainant and the applicant attended further gel-blasting events.  In mid-2022, the complainant joined Facebook and became Facebook friends with the applicant.  The complainant and the applicant used the Facebook application Messenger.  They initially messaged about common interests including gel-blasting, animation design and economics and finance.  From time to time, the complainant’s parents would drop the complainant off at the applicant’s house so that the applicant could drive the complainant to and from a gel blasting event.  The applicant offered to let the complainant stay with him overnight before an event.  In their discussions, the applicant became aware that the complainant suffered from ADHD and depression.  The applicant suggested strategies to help with concentration and again invited the complainant to stay the night with him, this time so that he could demonstrate those strategies.
7. [7]
   During the grooming period, the applicant asked the complainant if he was 16 years old and was advised by the complainant that he was, in fact, 15 years old.  The applicant told the complainant that he was “cute, talented and beautiful”.  On multiple occasions, the applicant sent the complainant goodnight messages in which he variously expressed his love for, and wish to hug, cuddle and snuggle in bed with, the complainant.  The applicant sent sexualised messages to the complainant in response to unrelated questions and topics.
8. [8]
   One interaction during the offending period warrants specific description. The applicant messaged the complainant saying that he had “a very sensitive question” and asked the complainant to be his “secret boyfriend”. The complainant responded to the effect that he “thought it was illegal”. The applicant then sent a message which materially said “…yeah true… I’m going to stop mssging Before it gone too far” (sic). The applicant did not stop messaging the complainant. Rather, he messaged the complainant that he wished that “the secret boyfriend contract is legal”. He also messaged the complainant with sexualised comments and a suggestion that the pair should share a shower. His messages made references to the applicant’s bisexuality, masturbation and girls being sexually aroused by the complainant.
9. [9]
   On 6 June 2023, the complainant raised the messages with a guidance counsellor.  The complainant’s school principal, the complainant’s parents and the police were notified.  On 11 June 2023, police executed a search warrant at the applicant’s address.  He participated in a record of interview during which he made limited, and in some respects disingenuous, admissions.  He admitted that he knew that the complainant was 15 years old.  He said they would chat daily about “work, gaming and other topics”.  He said he had provided emotional support to the complainant.  He described his comments to the effect that the complainant was cute and that girls would be attracted to him as intended to boost the complainant’s self-esteem and self-confidence.  He described his messages about wanting to be the complainant’s secret boyfriend and wanting to cuddle him as “a joke”.

The applicant’s antecedents and personal circumstances

10. [10]
    The applicant was 35 years old at the time of the offending and 36 years old at the time of sentence.  He was a citizen of Indonesia living in Australia on a Resident Return (BB-155) visa.  He had no criminal history and had not committed any breaches of bail since his arrest for the subject offending.  He had degrees in accounting and finance and was employed as an accountant.  He was actively involved with, and volunteered as part of, a church community.  His references described him as caring, responsible and of good character.
11. [11]
    The applicant suffered from alcoholism.  There was evidence that he had completed one of six modules of a course for persons impacted by substance use.  The completed module was titled “Dealing with Depression and Anxiety in Recovery”.  The applicant’s counsel tendered a Mental Health Alcohol and Other Drugs Services Care Plan.^[3]  A letter of support from a clinical psychologist, Mr Lee, was tendered which materially stated:^[4]

“[The applicant] has started attending psychology consultations with me on the 28th of May, 2024 and has since attended two more sessions on the 18th of June and 9th of July, 2024. [The applicant] also has his next appointment scheduled on August 14th. [The applicant] was presented with anxiety and stress in relation to the court case that he is in. Our current and future sessions revolve around teaching [the applicant] to manage his current stressors and prevent future situation that would put us into a similar position legally and mentally. This letter is to show [the applicant’s] commitment to improving his mental health and achieving a better well-being.”

12. [12]
    The nature and extent of the applicant’s rehabilitation was controversial.  Mr Lee’s letter of support described the applicant’s “commitment to improving his mental health and achieving a better well-being”.  During the sentencing hearing, the following exchange occurred between the judge and the applicant’s counsel:

“HIS HONOUR: So I see this all addresses issues with alcohol, but how does it deal with his predilection to adolescent boys or men …But again, this isn’t treatment…for this particular – – – idiosyncratic behaviour, but rather for his stress in relation to the court case.

[COUNSEL]: Yes, your Honour. And I’m instructed that in those sessions, that’s where he’s dealt with the offending conduct. I don’t’ (sic) have a report about those things, only to say that he’s been regularly attending psychology sessions on a monthly basis.”

13. [13]
    In a further exchange with the judge, the applicant’s counsel accepted that the applicant’s rehabilitation had not been concerned with “the underlying difficulty” which was the applicant’s “predilection towards adolescent boys or youths”.^[5]

The submissions as to sentence

14. [14]
    The applicant’s counsel accepted that the subject offending was serious and general deterrence was a relevant consideration.^[6]  Whilst it was accepted that specific deterrence was a relevant consideration, the need for specific deterrence was said to have been moderated given the applicant’s acceptance of wrongdoing, co-operation, lack of any prior criminal history, efforts at rehabilitation and personal antecedents.^[7]  The applicant’s counsel sought a sentence of 18 months imprisonment, with immediate release on recognisance.  That sentence was said to be appropriate because of the “atypical”^[8] nature of the offending and the matters already outlined which moderated the need for specific deterrence.  As to the “atypical” nature of the offending, the submissions did not articulate the type of offending conduct which might be regarded as typical.  Some emphasis was placed on the fact that the applicant had not transmitted to the complainant any sexually explicit photographs or videos, nor had he procured any sexually explicit material from the complainant.^[9]  The messaging was said to have been “on the relatively less serious side”.^[10]  In support of the submission that exceptional circumstances existed, the applicant’s counsel relied upon R v Nahlous,^[11] which was described as “very strikingly similar” to the present case.^[12]
15. [15]
    The Crown submitted that the offending warranted a term of imprisonment with a period of actual custody.  The Crown emphasised that the complainant was a “real child victim” and the grooming had occurred when the complainant was 15 years old, in the context of a relationship that had been established over some years.  The Crown described the present case as more serious than Nahlous.

The sentencing remarks

16. [16]
    At the sentencing hearing there was no dispute that a term of imprisonment was warranted and the real issue was whether exceptional circumstances existed such that the applicant ought not be required to serve some part of the term of imprisonment in actual custody.  On this application, the primary criticism of the sentencing remarks was an asserted failure to recognise the existence of exceptional circumstances.
17. [17]
    The sentencing remarks acknowledged that considerations of general and specific deterrence were particularly relevant “having regard to the nature of the offending”.  The judge found that the offending involved multiple overtly sexual references and requests to become the complainant child’s secret boyfriend.  The offending was also described as persistent offending, which had occurred over two months, involving a 15 year old child, who was already known to the applicant.  The judge found that the persistent nature of the offending “further emphasise[d]” the need for general and “some element of specific deterrence”.^[13]  The relationship between the applicant and the complainant was described as follows:^[14]

“[The complainant] was real and you knew him and one expects over a period of time you were able to assess his vulnerabilities and to some extent exploit them to inveigle yourself into his confidence.”

18. [18]
    The remarks went on to describe the applicant as being affected by “a deviancy … directed to adolescent boys” and observed that “to some extent your inhibitions have been reduced because of the influence of alcohol at the time”.  The judge recognised that the applicant had actively sought treatment in relation to his alcoholism, which was acknowledged as reflecting positively on his prospects of rehabilitation.
19. [19]
    The judge then observed:^[15]

“The Crown submits that successful rehabilitation will depend upon the extent to which you recognise your problem and demonstrate you have taken steps to overcome it. There has been some effort, at least in addressing one aspect of your difficulty. That is, the alcohol difficulty. I am told from the bar table, on instructions, that you have also sought to address the other, but I have no objective material before me, and respectfully the material that is placed before me does not suggest there has been much effort or much focus at least in relation to those matters.

Frankly, I would think [the] focus of the material would be upon the issue that brings you here today, not the background issue of alcohol which saw you offend in the first place. But I have regard, in any event, to those efforts you have made in rehabilitation and acknowledge at least the submissions made by counsel, although as I have earlier observed, I take those submissions with something of a grain of salt.”

20. [20]
    The remarks correctly identified the real issue and dealt with that issue as follows:^[16]

“…[T]he real issue in this case is whether or not the Defence can demonstrate there are exceptional circumstances thereby warranting your immediate release. The factors pointed to by the Defence include your early plea, a high degree of cooperation. Efforts made at rehabilitation. Your personal antecedents and the facts of this case. In particular, so far as the facts of this case, it is contended that this is regarded as something atypical … Nonetheless, other factors that are pointed to are that the offending here did involve knowledge of you of the complainant, even though the grooming took place some time after you had developed an association and relationship with the complainant. The grooming itself, in my view, did not simply come out of the blue. You no doubt exploited your position of age and relative sophistication in your position as a member of this gel club to – as I have said, inveigle yourself into his confidence and abuse that position, having regard to his age at the time. … The Defence, as I have said, goes through the various factors, including your guilty plea, contrition, cooperation, the risk of deportation, and submits that exceptional circumstances have been demonstrated … and accordingly there should be no actual period of custody. I am not satisfied that the exceptional circumstances have been established in this case and it follows that there must be a period of actual custody.”

An application to adduce fresh evidence

21. [21]
    Before this Court, the applicant applied for leave to adduce fresh evidence comprising two emails sent by Mr Lee to the applicant’s solicitor.  The fresh evidence was explained on the basis that “the psychological material at first instance was lacking”.^[17]  On 9 August 2024, the applicant’s solicitor had called the receptionist of Mr Lee’s psychology practice and inquired whether “Mr Lee would be able to send … an email confirming that:

1. a.
   He was aware of the charges that [the applicant] was being sentenced before the District Court at Brisbane for;

1. b.
   That the charges were discussed during his sessions with [the applicant]; and

1. c.
   That he provided therapy and treatment throughout his sessions to [the applicant] surrounding any attraction to children.”^[18]

22. [22]
    Following that request, on 9 August 2024, Mr Lee provided two emails to the applicant’s solicitor.  The applicant’s counsel submitted that the emails were “essentially all that could be marshalled in the short time frame”.^[19]  The emails were in the following terms:

    1. At 11.29 am, “I have definitely talked about the reason why he was going to court. We have indeed discussed about the charge multiple times throughout our sessions”; and
    2. At 1.24 pm, “[s]orry I didn’t respond sooner, I was in sessions. I can confirm that we have discussed what behaviours led us to this case with the child attraction charge. I can also confirm that we have discussed what done differently in future to prevent same problematic behaviours from happening again (sic)”.
23. [23]
    As will be apparent, the judge noted that the focus of the material relied upon by the applicant at his sentence was directed towards a “background issue” of alcoholism.  There was no suggestion in the evidence below that there had been a rehabilitative focus in relation to what the judge described as the “issue which [brought the applicant]” before the sentencing court.  Before the judge, the applicant’s counsel acknowledged that issue as being a predilection towards adolescent boys or youths.  Before this Court, the applicant’s counsel accepted the judge’s remarks about the extent of rehabilitation were accurate and based upon the evidence.^[20]  The judge’s plain concern was that the evidence did not demonstrate that the actual offending, that is the applicant’s behaviour towards an underage child, had been addressed in any meaningful, rehabilitative sense.
24. [24]
    The fresh evidence was directed to facts and circumstances existing as at the date of the sentence.  There is a discretion to admit that kind of evidence where the evidence demonstrates that some other sentence is warranted in law.^[21]  In the present case, there was no explanation provided by the applicant or his legal advisors as to why the evidence was not adduced before the judge.  Absent that kind of explanation, an exceptional case may warrant the admission of fresh evidence to avoid a miscarriage of justice.^[22]  The present case is not an exceptional case.  The emails were correctly described as “very brief”^[23] and, taken at their highest, suggest that the applicant’s offending had been discussed with the psychologist, albeit at some undefined level.  The fresh evidence did not address the judge’s concerns about the nature and extent of any rehabilitative steps undertaken with the psychologist and had very limited, if any, probative value.  The fresh evidence did not demonstrate that some other sentence was warranted.  The application to rely upon that evidence must be dismissed.

The application for leave to appeal fails

25. [25]
    The offending involved the commission of a Commonwealth child sex offence.  It was common ground that a sentence of imprisonment was required to be imposed, there being no suggestion that the term of imprisonment should exceed three years.  In those circumstances, there was a legislative presumption that some part of the sentence should be served in actual custody unless the Court were satisfied that their existed “exceptional circumstances”.^[24]  The application was argued on the accepted basis that the existence of exceptional circumstances involved a discretionary judgment.^[25]
26. [26]
    The expression “exceptional circumstances” is not defined by the Crimes Act, and no particular considerations are mandated by s 20(1)(b).^[26]  The explanatory memorandum to the bill which introduced s 20(1)(b) relevantly stated:^[27]

“The term ‘exceptional circumstances’ under paragraph 20(1)(b)(ii) is deliberately not defined. Given the variable circumstances which may militate against or support a sentence of imprisonment, it would impose practical constraints if ‘exceptional circumstances’ was defined. Firstly, the phrase is not easily subject to general definition as circumstances may exist as a result of the interaction of a variety of factors which, of themselves, may not be special or exceptional, but taken cumulatively, may meet this threshold. Second, a list of factors said to constitute ‘exceptional circumstances’, even if stated in broad terms, will have the tendency to restrict, rather than expand, the factors which might satisfy the requirements for ‘exceptional circumstances’.”

27. [27]
    In R v Bredal,^[28] Dhanji J^[29] observed:

“The changes brought about by the amending Act are both punitive and rehabilitative, both stemming from a concern to protect the community. The term ‘exceptional’ used in its present context thus requires the circumstances to be sufficiently ‘exceptional’ such that, despite a period of imprisonment being required, the offender should not be required to serve any part of that sentence in actual custody. While a finding in relation to exceptional circumstances is a step in the sentencing process (after determining the s 17A threshold has been crossed, and determining the length of the sentence), the instinctive synthesis remains engaged. As I have said, whether the threshold is reached is not considered in a vacuum, but rather having regard to all the circumstances of the case. It is ‘based on an assessment of all of the usual sentencing criteria’: R v Jones [2022] SASCA 105 at [45]. To take the obvious example, the greater the objective seriousness of an offence the more difficult it will be to establish the case is relevantly exceptional.”

28. [28]
    In R v Tootell; Ex parte Attorney-General (Qld),^[30] this Court considered s 9(5) of the Penalties and Sentences Act 1992 (Qld) which requires an offender to serve an actual term of imprisonment for an offence of a sexual nature committed in relation to a child under 16 years “unless there are exceptional circumstances”.  The Court referred with approval to earlier observations of Lord Bingham of Cornhill CJ in R v Kelly (Edward),^[31] to the effect that the adjective “exceptional” describes “a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon … but … cannot be one that is regularly, or routinely, or normally encountered”.
29. [29]
    In R v Quick; ex parte Attorney General (Qld),^[32] Chesterman J, in the following passage, made similar observations about the unexceptional nature of particular circumstances involving sexual offending against a child:

“When properly condensed to their essential elements the circumstances come to these:

1. the respondent pleaded guilty…;

2. he had no prior criminal history;

3. he has become depressed and requires psychiatric treatment for depression which will diminish his capacity to adjust to custody;

4. he is remorseful;

5. he is unlikely to re-offend;

6. he has suffered public embarrassment and humiliation by reason of being charged and convicted;

7. he suffered anxiety for the two years between investigation and conviction; and

8. the offences were not the most serious examples of their kind.

Factors (a), (b), (d) and (e) are circumstances of mitigation. Some or all of them appear in most, if not all, cases of sexual offences against children. They are not exceptional. The other factors, (c), (f) and (g), are usual consequences which commonly flow from the discovery and prosecution of sexual offences. Again there is nothing exceptional about them.”

30. [30]
    The applicant did not submit that the judge misdirected himself as to the test for exceptional circumstances.  The suggested error was an alleged failure to recognise a factor relevant to the existence of exceptional circumstances being the “atypical way the relationship progressed”.^[33]  On this application, it was submitted that the progression of the relationship was atypical because the applicant was someone who “actually had amorous feelings” for the complainant.^[34]  This characteristic was said to make the present case different to most other cases because the applicant had legitimate, amorous feelings for the complainant and was not someone “who simply wanted to sexually exploit a vulnerable person”.^[35]
31. [31]
    Whether exceptional circumstances are established on the facts of a particular case involves an assessment which calls for a value judgment as part of the instinctive synthesis involved in the exercise of the sentencing discretion.^[36]  When considering whether exceptional circumstances exist, the starting point involves identifying the criminality of the conduct revealed by the facts and circumstances of the offending.  As was observed in R v Bredal,^[37] “…the greater the objective seriousness of an offence the more difficult it will be to establish the case is relevantly exceptional”.  The present offending was persistent, having occurred over two months, and involved a 15 years old child, who was known to the applicant.  In the lead up to the offending, the applicant established a friendship with the complainant, became privy to information regarding the complainant’s mental health and otherwise learned about the complainant’s vulnerabilities.  The offending involved multiple, overtly sexual references and brazen requests to become the child’s secret boyfriend in the face of the child’s admonition that such a relationship would be illegal.  The offending so described was serious offending.  The judge rightly found that the nature of the offending meant that general deterrence and “some element of specific deterrence”^[38] were to be taken into account in the proper exercise of the sentencing discretion.
32. [32]
    That the applicant’s messaging did not involve requests for sexually explicit material did not mean that the offending was not serious offending or that exceptional circumstances existed.  The practice of grooming encompasses a wide range of activity designed to build a relationship of trust with a child for the purposes of later sexually exploiting the child.  It has been recognised that communications designed to build such a relationship of trust do not necessarily contain indecent content but may well contain platonic content.^[39]  Further, the submission that the circumstances were exceptional by reference to the applicant’s amorous feelings for the complainant, wholly ignored the reality that the offending involved grooming a child, with knowledge of the child’s age and with knowledge that any sexual relationship with the child was illegal.  At the heart of the offending was conduct engaged in for the purpose of later sexually exploiting a child.  The submission’s focus upon the applicant’s feelings for the child did not grapple with the substance of the applicant’s offending conduct and would, if accepted, significantly undermine the protections to children in our community afforded by s 20(1)(b).  The other matters identified by the applicant as reflecting or evidencing exceptional circumstances, that is, the early plea of guilty, cooperation, efforts at rehabilitation, personal antecedents and the lack of any criminal history were unremarkable matters, usually encountered in cases of this kind.  It may also be observed that, in this particular case, the applicant did not demonstrate any real steps towards rehabilitation in respect of the offending behaviours.
33. [33]
    It may also be observed that the subject offending was more serious than the offending which had been considered in Nahlous, where the offender received an 18 month, fully suspended, sentence of imprisonment.  At the time of Nahlous, the maximum sentence was 12 years imprisonment and, importantly, there was no legislative presumption for actual custody in the absence of exceptional circumstances.  In Nahlous, the period of grooming was confined to 6 days and the content of the sexually enticing messaging material was found to be “not lurid or graphic”.  There were findings that there had been no talk about, or attempt to set up, a meeting and there had been “no talk of pursuing sexual activity”.  The respondent, who suffered from chronic anxiety and depression, was found to have had insight and to have acknowledged guilt from the outset.  There was a specific finding in Nahlous that there was, on the facts of that case, no need for personal deterrence.  Nahlous is properly characterised as a less serious case decided in a different statutory context.
34. [34]
    The applicant has failed to establish any error in the judge’s finding that exceptional circumstances had not been established.
35. [35]
    The alternative ground that the sentence was manifestly excessive was advanced on the basis that exceptional circumstances had not been established.  Necessarily, that meant that the ground was advanced in the context of a legislative presumption that at least some part of the sentence of imprisonment was required to be served in actual custody.  The written argument on behalf of the applicant submitted that “The objective conduct did not justify a sentence in excess of 18 months”.^[40]  During the course of oral argument, the applicant’s counsel candidly disavowed that submission and no longer made any criticism of the head sentence.^[41]  The applicant’s counsel ultimately sought to engage the manifestly excessive ground on the limited basis that this Court might “consider whether it was justified to make a shorter period of time in custody”.^[42]  No further oral submissions were made in support of that proposition.  To succeed on the ground that the sentence was manifestly excessive, the applicant was required to show that the sentence was unreasonable or plainly unjust such that it might be inferred that in some way there had been a failure to properly exercise the discretion which the law reposed in the sentencing court.  No such inference is available to be drawn in the present case.  As has been already observed, Nahlous involved less serious offending in a statutory context which was more favourable to the offender.  In the present circumstances, where there was a legislative presumption that some part of the sentence should be served in actual custody and the judge found that there was a need to recognise some element of specific deterrence, it is not possible to conclude that there has been any error in the imposition of a period of actual custody which reflected less than one fifth of the term of imprisonment.  The ground of manifest excess fails.
36. [36]
    The application for leave to appeal sentence must be dismissed.
37. [37]
    The Crown submitted that the form of the sentencing order did not include mandatory release conditions required by s 20(1B) of the Crimes Act, in particular that the applicant “not travel interstate or overseas without the written permission of the probation officer” (s 20(1B)(c)) and “undertake such treatment or rehabilitation programs that the probation officer reasonably directs” (s 20(1B)(d)).  The applicant made no submissions about this matter.  The Crown’s submission should be accepted.  The Registrar should be directed to amend the verdict and judgment record to include the conditions that the applicant not travel interstate or overseas without the written permission of the probation officer and undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

Proposed Orders

38. [38]
    The orders I propose are as follows:

1. The application for leave to adduce evidence filed 12 August 2024 is dismissed.
2. The application for leave to appeal against sentence filed 24 July 2024 is dismissed.
3. The Registrar is directed to amend the verdict and judgment record to include the conditions mandated by ss 20(1B)(c) and (d) of the Crimes Act namely that the applicant not travel interstate or overseas without the written permission of the probation officer and undertake such treatment or rehabilitation programs that the probation officer reasonably directs.