by Paul Gregoire and Ugur Nedim
Between March and October 2016, Mr Rainer Kristensen conducted sexualised chats over social media with ten girls aged between 11 and 15 years old. The offender knew his behaviour was wrong and he deleted the files containing the explicit exchanges after concluding the chats.
Mr Kristensen began chatting with adult women online, but then started to do so with children. Most of the times that he learnt the person he was chatting with was under the age of 18, he’d cease communicating with them. However, sometimes he didn’t.
Over platforms like Hi5, WhatsApp and Skype, Kristensen began making repeated attempts to sexualise the conversations he was having with young girls by using techniques such as asking them about their prior sexual experiences.
A few of the chats over WhatsApp involved the exchanges of naked photos, some of which were considered to be child abuse material. And Kristensen used usernames on the social media platforms which were somewhat identifiable, such as “Rainer Kristiansen” and “RainerK.”
On 1 December 2016, the Australian federal police executed a warrant at Mr Kristensen’s home and the offender subsequently took part in a recorded interview during which he made admissions to all of his crimes.
The sentence imposed
Mr Kristensen entered an early guilty plea in the Campbelltown Local Court on 21 June last year. He did so in regard to one count of using a carriage service to send indecent material to a person less than 16 years of age contrary to section 474.27A(1) of the Criminal Code Act 1995 (Cth).
The maximum penalty for this federal offence is 7 years behind bars.
The offender then appeared in Campbelltown District Court for sentencing on 13 October last year. NSW District Court Judge Jennifer English imposed a sentence of 1 year and 9 months. Her Honour also ordered that Kristensen be released on a recognisance, without security, to be of good behaviour, after having served 1 year, 3 months and 23 days of the sentence.
Under the provisions of section 19AC of the Crimes Act 1914 (Cth), a recognisance release order can be imposed for any federal offence, which means that a convicted offender is released under the condition that they comply with the requirements of a good behaviour bond.
An overlooked early guilty plea
On 13 July this year, Mr Kristensen appealed his sentence to the NSW Criminal Court of Appeal (NSWCCA) on the single ground that the sentencing judge made an error in failing to apply a discount in regard to his early guilty plea.
NSWCCA Justice Anthony Payne said that “the offender is entitled to considerable credit for his early admissions to the police and entry of a guilty plea at the first available opportunity.”
His Honour pointed out that the right to a discount for an early guilty plea was established earlier this year in the NSWCCA case Xiao v R.
In NSW, if an offender enters an early guilty plea, they’re eligible for a sentence discount of up to 25 percent. This is in recognition of the utilitarian value of an early plea of guilt, as it cuts down on court costs and time, and reduces stress for victims.
Justice Payne rejected the prosecution’s assertion that the sentencing judge had already applied a 25 percent discount to Mr Kristensen’s sentence, as Judge English made no mention of having done so.
His Honour added, “I do not regard the submission that it was ‘highly likely’ that the sentencing judge commenced with a notional starting point of 28 months imprisonment before discount as persuasive.”
And as this error had taken place, it was necessary that the court resentence the offender.
A list of considerations
In resentencing Mr Kristensen, Justice Payne said the court was required to take into account all the matters set out in section 16A(2) of the Crimes Act 1914 (Cth). This section acts as a checklist of what should be considered when sentencing an offender for a federal crime.
One such consideration is general deterrence. His Honour pointed out that these sort of crimes have “a profound impact on victims who are vulnerable due to their young age.” And the need to deter others from committing this crime warranted no other sentence than full time custody.
Justice Payne also considered the need to deter Kristensen from committing these crimes again. His Honour said there did seem to be a risk of reoffending, as Kristensen had taken no steps to seek appropriate counselling.
And on the matter of rehabilitation, the justice found it difficult to make a positive conclusion. But, he did find that Kristensen had some prospects for rehabilitation, given his affidavit stated that he “horribly” regretted his crimes.
Two more issues to assess
After addressing the matters the Crimes Act required the court to consider, Justice Payne stated that there were two more issues that needed to be contemplated.
The first was that following his conviction, Mr Kristensen was now a registrable person, under the provisions of section 19 of the Child Protection (Offenders Registration) Act 2000. And as his crime was a class two offence, this means that the offender will have to report to police for the period of 8 years.
However, the appeals court found that this obligation should not be counted as a mitigating factor in sentencing.
And the last matter was that Kristensen is a noncitizen, and under subsection 501(3A)(a)(ii) of the Migration Act 1958 the immigration minister is required to cancel his visa as his crime was a sexually-based offence involving a child.
Justice Payne made clear that the likelihood that the offender would be deported in the future was not a reason to forgo setting an order for release on parole, as is stipulated in section 19AK of the Crimes Act.
His Honour also stated that under NSW laws the prospective deportation of an offender has not been considered a mitigating factor in the past. And he stressed that the current case was “not an appropriate vehicle” for challenging the state’s long-standing approach.
Appeal granted
On 3 September this year, his Honour ordered that the appeal be granted, and the sentence imposed by Judge English be quashed.
“Taking all of these matters into account, and in particular the 25 percent discount for the early plea of guilty, I conclude that this offence warrants a period of imprisonment of 1 year and 6 months,” Justice Payne said.
And it was also ordered that Kristensen be “released on a recognisance, without sureties, to be of good behaviour for 6 months, after having served 12 months” of his sentence.
NSWCCA Justices Robert Hulme and Richard Button agreed with the orders.
