R v Terrence Edward Laybutt [2021] NSWDC 2

District Court New South Wales

Medium Neutral Citation: R v Terrence Edward Laybutt [2021] NSWDC 2 Hearing dates: 19 January 2021 Date of orders: 25 January 2021 Decision date: 25 January 2021 Jurisdiction: Criminal Before: DCJ Priestley SC Decision: See [63] Catchwords: CRIME — Child sex offences — Using carriage service to groom person Legislation Cited: Commonwealth Criminal Code 1995 (Cth) Crimes Act 1914 (Cth) Cases Cited: R v Kennings [2004] QCA 162 Cowling v R [2015] NSWCCA 213 R v Fuller [2010] NSWCCA 192 R v Hizhnikov [2008] VSCA 269 R v Gajjar [2008] VSCA 268 R v Nguyen [2016] NSWDC 395 Category: Sentence Parties: Regina (Crown) Laybutt (Offender) Representation: BarrosGoncacbes Solicitor for the Commonwealth Director of Public Prosecutions Rowe Counsel for the Offender File Number(s): 2020/00036153 Publication restriction: Unrestricted

Judgment

Introduction 1. The offender, Terrence Edward Laybutt appears for sentence on one charge under the Commonwealth Criminal Code ("the Code") section 474.26 (1) of using a carriage service to transmit a communication to another person with the intent to procure that person to engage in sexual activity, that person being under the age of 16 and the offender over the age of 18. 2. The maximum penalty for this offence is 15 years imprisonment. In arriving at my ultimate sentence in this matter I have taken that maximum penalty into account as a legislative guidepost. 3. There was in fact no person under the age of 16 involved in the facts of this matter. The communications engaged in by the offender were with a law enforcement officer assuming an online identity ("AOI"). This it should be noted from the outset is not a matter of mitigation. The code expressly provides by section 474.28 (9) "it does not matter that the recipient to whom the sender believes the sender is transmitting the communication is a fictitious person represented to the sender as a real person", and see also R v Kennings [2004] QCA 162. 4. The offender was born on 2 November 1956. The offending occurred in the period 7 January 2020 to 4 February 2020 so that the offender was 64 years of age at the time of the offending. He was arrested on 4 February 2020 and spent two days in custody. On his release from custody bail conditions included for approximately two months that he report two times each day to a police station and that he not leave his home between the hours of 8:30 PM and 7:30 AM and that he have no access to the Internet. In April 2020 those conditions were varied so that the need to report was reduced to once per day but otherwise the conditions remained the same. It was submitted for the offender that these were onerous bail conditions and should be taken into account in determining the sentence. I accept that submission and have taken this matter into account.