Author: Nyman Gibson Miralis
Subject: Cyber Crime
Keywords: cyber crime, grooming, procuring
The accessibility of the internet has created a new realm of opportunities for children to be exposed to online forums where they could fall victim to being ‘groomed’ or ‘procured’ for sexual activity. Whilst there may be no actual physical contact involved, the courts view these practices as being morally reprehensible. Such sentiment is reflected in the legislative provisions that deal with child ‘grooming’ and ‘procuring’, where the Commonwealth offences carry significant prison sentences of 12 and 15 years respectively.
What is Grooming?
Grooming involves the training or preparation of a child for sexual activity. This process involves exposing the child to indecent material or providing the child with an intoxicating substance with the intention of making it easier to facilitate unlawful sexual activity.
What is Procuring?
Procuring involves the persuasion of the child to engage in sexual activity. Procuring is where adult offenders seek to exploit the anonymity of communication services, such as the internet, to win the trust of children under the age of 16 years with a view towards facilitating some kind of sexual or intimate relationship.
What are some examples of how the courts have treated grooming and procuring offences?
The Case of R v Nahlous  NSWCCA 90
What were the facts in this case?
In 2011, a 31 year old man became Facebook friends with a 14 year old girl who lived across the road from him. The two exchanged messages over a 6 day period from August 30 – September 5.
The conversations were of a sexually explicit nature, with Nahlous referring to kissing, French kissing and calling the girl ‘sexy’ and ‘hot’. He also asked the girl whether she wanted to kiss him, whether she wanted help showering, whether there might be ‘sexual things’ between them, whether she had ever seen a penis ‘in life’ and if so whether she had ever touched it. He also expressed a desire to kiss and hug her, see her and touch her ‘arse’. He also told the girl to keep their conversations secret.
Between August 30 and 5 September 2011 there were 1,712 online communications between Nahlous and the girl.
Section 474.27 of the Criminal Code Act 1995 (Cth) outlines the offence of grooming. Grooming involves using a ‘carriage service’ to groom a person that is under 16 years of age. A carriage service can be any written or electronic device that transmits a message to a recipient. The intent behind such communication is to make it easier to procure the recipient to engage in sexual activity with the sender.
It is also an offence under s474.27A of the Code to use that particular carriage service to transmit ‘indecent communication’ to a person under the age of 16 years. What constitutes ‘indecent communication’ will be determined on a case by case basis, although will usually involve the transmitting of pornographic or sexually explicit photos and videos.
Applying the law to the facts
In applying the law to the charge of ‘grooming’ the court is required to take into account both the objective seriousness of the offence and the subjective factors of the offender.
The court identified several objective features of the seriousness of the offence. These included:
- That the girl knew who Nahlous was and where he lived when she invited him to be her Facebook friend.
- The period of grooming was relatively short (only 6 days)
- He used his actual name and disclosed his actual age. There was no suggestion of him hiding behind anonymity
- Although sexual topics were referred to, there were no images sent or reference to any sexual conduct of his own whilst he communicated with the girl
- At no stage did he propose with the girl that they try and meet. At times, he emphasised the need to ‘wait’ because of her age
- He rebuffed the girls suggestions that they meet
- He complied with the personal violence order the girl obtained
The court also identified several important subjective factors of the offender. These included:
- That the first decision sentencing Judge was satisfied of Nahlous’ contrition and shame. These observations are entitled to weight by the court (R v Anderson (2012) NSWCCA 175)
- He accepted the wrongfulness of his conduct and was sympathetic to the victim and her family
- He was of prior good character, had stable work history, and there would be substantial disruption to his life and his business if a custodial sentence was imposed
- He had disclosed his wrongdoing to those he knew in the Australian community
The court noted that a suspended prison sentence is a sentence in its own right and ought not to be considered as the offender receiving no punishment at all (R v Zamagias (2002) NSWCCA 17). The court also mentioned that whilst a custodial sentence will be required in many cases involving offences against s474.27 and s474.27A this will not always be the case.
In considering the objective seriousness of the offence and the subjective factors of the offender, the court sentenced Nahlous to a fully suspended prison sentence of 18 months, upon the recognisance of a good behaviour bond for three years.
What happened in the case of DPP v Walls  VSCA 323
The offending in this case involved three child complainants who were aged between 14 and 15 years’ old. The offender was aged between 25 and 26 at the time of offending.
The offender became Facebook friends with each of the three girls and soon after befriending them, sent each of the three girls sexually explicit messages. The exchanges took place over nine months. The offender sent naked photos of himself to all three of the girls, and asked for nude photos in return from two of the girls. The offender also sent sexually explicit photos and videos to one of the girls. During one of these conversations, the offender asked one of the girls to have sex with him. Several text messages referring to masturbation and ejaculation were sent from the offender to all three girls.
The accused pleaded guilty to three charges under the Criminal Code Act (Cth). The first charge was using a carriage service to transmit indecent communication to a person under 16 years of age (contravention of s474.27A). The second charge was using a carriage service to procure a person under 16 years of age for sexual activity (contravention of s474.26(1)). The third charge was using a carriage service to solicit child pornography (contravention of s474.19(1)).
Applying the Law to the Facts
As the offender pleaded guilty, the sentence handed down at first instance was 22 months imprisonment with the offender being released immediately upon giving security by recognisance of $1,000 and complying with the condition that he be of good behaviour for a period of 24 months (pursuant to s20(1)(b) Crimes Act 1914 (Cth))
On appeal, the Crown argued that the original sentence was ‘manifestly inadequate’ and urged the court that a custodial sentence was the only available sentence open to the court given the emphasis in these particular cases on specific and general deterrence. In these particular cases, the court will examine both the objective seriousness of the offence, and the subjective features of the offender.
In terms of the objective seriousness of the offence, the Crown submitted:
- That the offending involved three real child victims
- That the offender knew the ages of these victims and that each were living in his local area. This elevated the seriousness of the offence considering he was in a position to have access to the children
- His conduct was frequent, calculated and predatory in that his communications were of a period of 9 months in which the Offender communicated with the victims in succession
- The indecent material communicated was graphic and explicit
- The Offender’s conduct was persistent
- There was an age difference of 11 to 12 years between the offender and the victims
- The conduct has had a lasting effect on the victims and
- The motive for the offending was for sexual gratification.
In the first instance sentencing decision [DPP v Walls (Unreported, County Court, Judge Gucciardo, 22 September 2014)] His Honour referred to certain subjective factors of the offender that led to the original sentence. These included:
- Psychiatric reports indicating a low-level risk of reoffending and good prospects of rehabilitation
- A letter tendered from the accused’s father which highlighted:
- Educational training programs which had been completed and qualification certificates obtained which have enabled the offender to gain employment
- No Facebook or social media accounts were active
- The offender removed himself from past patterns of previous relationships, and resumed daily contact with his parents and siblings
Ultimately, the Court of Appeal dismissed the appeal, noting that while the sentence imposed at first instance was very light, they were not persuaded that it was outside the range of sentences permissibly open to the court.
What happened in the case of CDPP v Hizhnikov  VSCA 269?
On 6 February 2008, the accused Daniel Hizhnikov entered an online chat room and started chatting with a girl ‘Lisa’ whom he believed to be fourteen. The girl ‘Lisa’ was actually a police officer from the Sexual Crime Squad at the Victoria Police.
Once email addresses were exchanged, Hizhnikov sent a sexually explicit photo of himself. During their conversations a tentative arrangement to meet was agreed between the two at a railway station. Hizhnikov described in detail the sexual activity he had planned for the girl and gave her information regarding oral sex and sexual intercourse. During these conversations relating to sexual intercourse, Hizhnikov sent eight pornographic images that depicted sexual activity between adult males and females. On 10 February 2008, Hizhnikov was arrested at the agreed meeting place by police. A search of his motor vehicle revealed alcohol, condoms and a small amount of cannabis.
Hizhnikov was charged under s474.26 of the Criminal Code Act 1995 (Cth). The section refers to the charge of procurement, specifically using a carriage service to procure a person who is under the age of 16 years. The intent behind such communication is to procure the recipient to engage in sexual activity with the sender.
Hizhnikov was also charged with possession of child pornography, contrary to s70(1) of the Crimes Act 1958 (Vic)
Application of Law to the Facts
At first instance, on the charge under s474.26, Hizhnikov was sentenced to 22 months’ imprisonment, to be released upon entering a recognisance in the sum of $1000, with a requirement that he be of good behaviour for four years. On the charge for possession of child pornography, the court sentenced Hizhnikov to nine months’ imprisonment, wholly suspended.
The issue before the Victorian Supreme Court of Appeal was whether that sentence was ‘manifestly inadequate’ given the particular facts of this case and the emphasis of the legislature for specific and general deterrence in these particular cases. In applying the law to these particular cases, the court will examine the subjective features of the offender, as well as analysing the objective seriousness of the offence.
In the first instance decision, the sentencing judge took into account certain subjective factors of the offender. These included:
- A psychiatric report which diagnosed Hizhnikov with anxiety and depression caused by an injury that had prevented him from fulfilling his promising career as a gymnast. This report also diagnosed Hizhnikov with acute loneliness and a lack of self-esteem which resulted in an impairment of his judgment. This same report concluded that he was very unlikely to re-offend.
- A second psychiatric report which showed the offender suffered from major depression which resulted in his impaired judgment and reasoning. This report also indicated that the offender was responding positively to treatment.
- Psychiatric testing revealed he did not fulfil the criteria for paedophilia.
- Lack of any prior convictions and positive evidence of good character, considering he had worked closely with teenagers before without a hint of concern.
- Offender also had a close and supportive family background
In terms of the objective seriousness of the offence, her Honour at first instance noted that the offender had accepted responsibility and recognised the seriousness of his behaviour. This was reflected by the fact that he immediately sought treatment for his condition. Her Honour also noted that no child had actually suffered as a consequence of Hizhnikov’s procuring. Whilst this was not treated as a mitigating factor, it was viewed by the court to be an absence of an aggravating factor.
At first instance, a suspended prison sentence was imposed. The sentencing judge gave this decision due to the offender’s prospects of rehabilitation, his contrition, the steps he had already taken to seek treatment, the assessment of expert opinion that he was unlikely to re-offend, and the treatment already undertaken of his diagnosed major depression.
On appeal, the Victorian Supreme Court of Appeal dismissed the Crown’s appeal, noting that since the offender had been at large since the original sentencing decision, and considering the ordinary principles of double jeopardy, imposing a custodial sentence would be self-defeating.
The court did mention that the offender in this case was extremely fortunate to receive a non-custodial sentence.
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