Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Rajasekar v R [2017] NSWCCA 113 Hearing dates: 10 May 2017 Date of orders: 31 May 2017 Decision date: 31 May 2017 Before: Leeming JA at [1] Adamson J at [2] Wilson J at [3] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIME – Sentence appeal – offences of use carriage service to groom person under 16 – use carriage service to engage in sexual activity with person under 16 – possess child abuse material – further offences on a schedule - question of application of totality principle – complaint as to degree of accumulation – complaint of manifest excess – nor error found – no point of principle Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth). Criminal Appeal Act 1912 (NSW) Criminal Code Act 1995 (Cth) Cases Cited: Cahyadi v R (2007) 168 A Crim R 41 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Nguyen v R (2016) 256 CLR 656; [2016] HCA 14 Category: Principal judgment Parties: John RAJASEKAR (Applicant) Regina (Respondent) Representation: Counsel: I McLachlan (Applicant) L Fernandez (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2014/333056 Publication restriction: None Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 16 December 2015 Before: Hanley SC DCJ File Number(s): 2014/333056 Judgment 1. LEEMING JA: I agree with Wilson J. 2. ADAMSON J: I agree with Wilson J. 3. WILSON J: This is an application for leave to appeal brought by John Rajasekar pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against sentence imposed upon him for four offences which might be broadly categorised as child abuse offences. His crimes, and the penalties imposed upon him on 16 December 2015 by Hanley SC DCJ, sitting at the District Court, are as follows: Offence Maximum penalty Sentence Imposed Possess Child Abuse Material (Seq. 7) 10 years imprisonment 12 months imprisonment to date from 16 December 2015, expiring on 15 December 2016 s 91H(2) Crimes Act 1900 (NSW) Use Carriage Service to engage in sexual activity with person under 16 years (Seq. 10) 15 years imprisonment 4 years imprisonment to date from 16 March 2016, expiring on 15 March 2020 s 474.25A(1) Criminal Code 1995 (Cth) Use Carriage Service to groom person under 16 years (Seq. 3) 12 years imprisonment 3 years imprisonment to date from 16 September 2017, expiring on 15 September 2020 s 474.27(1) Criminal Code 1995 (Cth) Use Carriage Service to groom person under 16 years (Seq. 5) 12 years imprisonment 3 years imprisonment to date from 16 September 2018, expiring on 15 September 2021 s 474.27(1) Criminal Code 1995 (Cth) 1. Two additional counts of using a carriage service to groom a person under 16 years (sequences 1 and 2) were taken into account on sentence pursuant to s 16BA of the Crimes Act 1914 (Cth). 2. The overall sentence is one of 5 years and 9 months imprisonment. The overall sentence for the Commonwealth offences is 5 years and 6 months with a non-parole period of 3 years and 4 months specified. The non-parole period will expire on 15 July 2019. His Honour made some corrections to the sentences on 16 November 2016, pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), but the detail of the corrections is of no present relevance. 3. The Crown provided a useful chart at the hearing of the appeal, accepted as accurate by the applicant, which demonstrates visually the structure of the sentences. A copy of the chart is attached to this judgment. The Crown Case on Sentence 1. The applicant entered pleas of guilty in the Local Court and confirmed those pleas before the District Court. 2. In the proceedings on sentence the Crown tendered a statement of facts which set out the detail of the offences. The facts were not disputed by the applicant, and the sentencing judge found the facts in accordance with the Crown's statement of them. The facts are disturbing and it is not necessary to set them out here in any detail. 3. In short, from February to November 2014 the applicant created and used a number of largely false social media identities to engage on-line with children for sexual purposes. He posed as both a teenage girl and a teenage boy and "chatted" with children, using the fake identities to groom children for sex by soliciting nude photographs and engaging them in sexual chat. He met with one child for the purpose of sex, although took her home at her request before any sexual activity took place. Initially using a false identity and then his own, the applicant used Facebook and Skype to engage with another child to have her perform sexual acts for him to view via a webcam. 4. The federal offences involved five children. 5. Some 40 videos of children engaged in sex acts were in the applicant's possession when a search warrant was executed at his home on 11 November 2014, together with other image files, all contained on a laptop computer. In total, the applicant was in possession of 40 videos and 167 images that constituted child abuse material, falling into either category 1, 2, or 3 on the Child Exploitation Tracking Scheme (or CETS) scale, being depictions of children in sexually suggestive poses, or engaging in non-penetrative sexual activity alone or with other children or adults. 6. The applicant was arrested on 11 November 2014 and taken to Penrith Police Station, where he made full admissions to the offences in an electronically recorded interview. 7. Also before the sentencing judge was a pre-sentence report in which the applicant's background and circumstances were set out. At the time of sentence the applicant was 29 years of age. He had previously worked as a high school science teacher and had no criminal convictions. The applicant was unmarried, and lived with his mother and brother. He acknowledged his offending, telling the author of the pre-sentence report that he had been engaged in similar activity for two years prior to his arrest. Although the author of the report thought the applicant minimised his offending, he was said to demonstrate some insight into his crimes. 8. A psychological report prepared for the sentencing court by Corrective Services concluded that the applicant was at high–moderate risk of reoffending. The Applicant's Case 1. The applicant gave evidence before the sentencing judge on 10 December 2015. He described growing up witnessing the breakdown of his parents' marriage, and the loss of contact with his father at age 12 or 13. He said he was educated at a private school and, after completing Bachelor degrees in Science and Education, began a teaching career, but found it a difficult experience. He regarded himself as somewhat socially isolated, and referred to his "addiction" to pornography, an addiction he believed he would need on-going counselling to treat. The applicant told the court that, after having been charged with these offences, he attempted suicide and was hospitalised. In cross-examination he denied that he had a sexual interest in young girls. 2. The applicant additionally relied upon a psychological report from Raymond Hudd together with a report from a counsellor, Ian Hanslow. The former obtained a history from the applicant of having been racially bullied at school as a student and when working as a teacher, contributing to a degree of isolation and alienation. The applicant claimed that his use of Facebook and other sites was as a consequence of his loneliness and a desire to have someone to talk to. Mr Hudd thought the applicant suffered from Post-Traumatic Stress Disorder from (unidentified) childhood trauma. 3. Mr Hanslow had seen the applicant some seventeen times as at the date of sentence, to assist him with depression and anxiety following his arrest. He expressed the opinion that the applicant was very remorseful for his crimes and focused on strategies to ensure he would not reoffend in the future. The Conclusions of the Sentencing Judge 1. Having set out the undisputed facts of the applicant's crimes the sentencing judge recorded his assessment of their gravity, describing them as "persistent, deliberate and calculated to establish contact with young girls." He continued, "It was predatory to the extent that he deliberately created or used false profiles of young women firstly to gain the trust of those he was communicating with and then to seek to have him introduced as a participant in the communications. I am satisfied his criminality is of a high degree." (Remark on Sentence 15-16.) 1. His Honour was satisfied that the applicant's conduct was, in relation to the federal offences, "grave and seriously criminal" (ROS 16 – 17). 2. With respect to the state offence, the sentencing judge noted that the images fell in the less serious CETS categories, and the objective gravity of the crime was "towards the lower end of seriousness". Because many of the images were recorded by the applicant in the course of his interaction with the children as reflected by the federal offences, his Honour concluded that the offence "[..] should be dealt with to a significant extent concurrently with any penalty imposed in relation to the other offences." 1. The sentencing judge considered that the offending conduct demonstrated a course of conduct over a number of months, and was satisfied that he should "[…] treat the overall offending as a continuous one and to that extent when considering matters of totality and accumulation of concurrency there should be a significant degree of concurrency in relation to each offence whilst also indicating there should be a degree of some accumulation to recognise that each offence was particular to itself." (ROS 18) 1. The applicant received a reduction in sentence of 25% to reflect the utilitarian value of the plea in the state offence, and his willingness to facilitate justice with respect to the federal offences. His Honour found that there was some evidence of remorse, and the applicant had some, if limited, insight. He noted that there must be reservations about the applicant's prospects of rehabilitation, which were greatly dependent on the applicant continuing with counselling and other appropriate treatment. 2. The sentencing judge concluded that there was a need for the sentences to denounce the applicant's crimes, and deter others from the commission of similar offences. 3. He specifically referred to the principle of totality and noted, "I take into account the fact that the offending behaviour was over a discrete period of time but involved separate victims. Accordingly, I am satisfied a considerable degree of concurrency of sentences should co-exist with some accumulation in relation to each to acknowledge individual offences and at the same time determining an appropriate sentence that is not crushing on the offender." (ROS 24) The Application for Leave to Appeal Against Sentence 1. The applicant seeks leave to rely on two grounds of appeal: 1. "His Honour breached the principle of totality; and 2. The sentences imposed were manifestly excessive". Ground 1: His Honour breached the principle of totality 1. In support of this proposed ground the applicant's counsel referred to what the sentencing judge had said concerning the issue of concurrency of sentence and submitted, "The question really at the end of the day in this appeal, I say respectfully, is whether or not the sentences that ultimately were imposed reflect what his Honour set out to do and that is impose a significant degree of concurrency." (T1:44 of 10 May 2017) 1. The most straightforward way of answering that question is to examine the annexed chart, which visually demonstrates the level of concurrency of sentence. As may be seen from the chart, there is, as the sentencing judge said there should be, a significant level of concurrency between the four offences. 2. For the state offence only 3 months of the 1 year term imposed was served solely in relation to that charge; the other 9 months was subsumed in the sentence imposed with respect to sequence 10, the offence of using a carriage service to engage in sexual activity with a person under 16. 3. For that offence, only 9 months imprisonment was solely referable to it, being the period between 15 December 2016 and 16 September 2017. Otherwise the sentence was entirely concurrent with either the state offence, or with sequence 3, the first of the charges of using a carriage service to groom a person under 16 years. 4. The sentence imposed for sequence 3 was entirely concurrent, with either the sentence imposed for sequence 10, or that imposed for the second of the grooming offences, sequence 5. 5. The sentence for sequence 5 was concurrent for two thirds of its length, with only one third of the term of three years being solely referable to it. 6. Had the structure of the sentences allowed for an even greater degree of concurrency, there would have been little or no scope for the "accumulation in relation to each to acknowledge individual offences" that the sentencing judge said was necessary. 7. In assessing the applicant's complaint it must be borne in mind that the level of concurrency and accumulation is a discretionary matter for the sentencing judge, whose task it is to arrive at a sentence which is just and appropriate to the totality of the offending conduct, when imposing sentence for more than one offence. There is no rule as to the structure of sentence to be adopted: Cahyadi v R (2007) 168 A Crim R 41 at 47 per Howie J; Nguyen v R [2016] HCA 14; 256 CLR 656 at [37] per Bell and Keane JJ. 8. The applicant's crimes, whilst they were factually linked and properly viewed by the sentencing judge as an ongoing course of illicit conduct, involved separate and distinct acts and, in relation to the federal offences, five separate children. There was a calculated course of manipulation of each of those children for the applicant's sexual gratification. It was necessary for there to be some accumulation of individual sentences to comprehend the distinct criminality of each offence. 9. The degree of concurrency between these offences was in my view significant and in conformity with the sentencing judge's stated intentions. I am unable to conclude that there has been any breach of the principle of totality. Error has not been established. Ground 2: The sentences imposed were manifestly excessive 1. In the applicant's written submissions, this ground was dealt with jointly with ground 1. The only submission directed specifically to this ground was as follows: "[…] against a background of (i) no criminal antecedents and (ii) noting the early pleas attracted a 25% discount for each offence, the sentences imposed were manifestly excessive, particularly the "head" sentences imposed for sequences 10, 3 & 5 – being 4 years, 3 years and 3 years respectively." 1. A complaint of manifest excess falls to be assessed in the context of the maximum penalty specified for each offence and in light of well settled and long standing authority that holds that sentencing judges are to be allowed as much flexibility as is consonant with the proper application of sentencing principles and consistency of approach: Markarian v The Queen (2005) 228 CLR 357 at [28]; Lowndes v The Queen (1999) 195 CLR 665 at [15]. 2. In any sentencing exercise there will be a range of possible sentences that could be imposed without error; the fact that a sentence falls at the upper end, or even at the top of, the available range does not make it manifestly excessive, any more than a sentence at the lowest end of the range is necessarily manifestly inadequate. 3. Here, sentences were imposed for four separate offences, where two further serious offences were taken into account on sentence, and five separate children were identified as victims of the applicant's crimes. Other children were involved in relation to the offence of possession of child abuse material. The maximum penalties for the offences were 15 years, 12 years and 10 years respectively. The offences dealt with on a schedule, if prosecuted on indictment, each carried a maximum penalty of 12 years imprisonment. The sentencing judge assessed the gravity of the crimes as high. 4. There was a need for the sentence to reflect the principles of specific and, importantly, general deterrence, to denounce the crimes and recognise the harm done, and to comprehend the serious criminality involved, particularly with respect to the federal offences. Even having regard to the applicant's former good character and the early pleas of guilty, lesser sentences than those imposed would have wholly failed to recognise the serious criminality of the applicant's crimes. 5. I am not able to conclude that the sentences imposed upon the applicant were unreasonable or unjust, and this ground has not been made good. Conclusion 1. The applicant has failed to establish error on the part of the sentencing judge. Although I would grant leave to advance grounds 1 and 2, I would dismiss the appeal. 2. The orders I propose are: 1. Leave to appeal granted. 2. Appeal dismissed. Annexures 1. R v Rajasekar - sentencing chart (46.2 KB, pdf) ********* Amendments 31 May 2017 - Cover sheet amended to reflect complete case citations omitted. [37] full citation of Markarian v The Queen included DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2017