Successful Grooming Dispute Without Conviction

This is a case study on a client charged with grooming for sexual conduct with a child under the age of 16 (Crimes Act 1958 (Vic) s 49M). The case involved successfully disputing a grooming charge at contest mention which resulted in Prosecution filing an appropriate ‘lesser’ charge.

Ultimately, our client received a 6-month good behaviour bond without conviction.

What is alleged to have occurred?

Our client was aged 21 at the time of the allegations. The conduct involved our client sending a series of Snapchat messages to a person seven years his junior. The message exchange spanned about a four-month period.
While the messages were initially benign, our client eventually began sending messages about sexual topics. Our client asked about the complainant’s sex life and whether he was a virgin, for example.

Ultimately our client sent a Snapchat video to the complainant which was explicitly sexual. The complainant viewed the video and, in response, deleted his Snapchat account.
Our client was interviewed by police about three months later and he made fulsome admissions.

An appropriate strategy

Arguably, the Prosecution could have charged our client with two offences rather than one.

Grooming offences contemplate the communication for the purpose of facilitating or being involved in a sexual act. It is the communication which constitutes the offence, not the sexual act itself.
The realisation of the communication, unless the Prosecution put their case otherwise, constitutes a separate and distinct criminal act.

Here, the Grooming allegation contemplated the Snapchat message exchange. The explicit video could have constituted a distinct offence of sexual activity in the presence of a child under the age of 16, for example.
There is no obligation on Defence to correct the Prosecution’s case. Accordingly, we stayed silent on whether Prosecution could charge in relation to the video. Instead, we proceeded to highlight the evidentiary deficiencies with the Grooming offence as charged.

We took the matter to contest mention which allowed us to ventilate those deficiencies before a Magistrate.

Issues at contest mention

At contest mention we highlighted the following.

That Grooming will not be made out where the accused simply gains sexual gratification only from the act of communicating. There was no clear evidence that our client merely gained sexual gratification from the communication itself.
It is incumbent on Prosecution to identify the sexual conduct which they say our client intended to commit. The Prosecution had not done so.

Our client’s phone download did not reveal the Snapchat message exchange. Nor did Prosecution have the actual video given Snapchat content automatically deletes after a certain period. Prosecution could only rely on the client’s admissions and the complainant’s statement which had reliability issues.

We submitted that our client’s admissions in his police interview did not evince an intention to facilitate the complainant engaging in a sexual act.

The Magistrate was persuaded that Grooming was not made out.

An appropriate lesser offence was filed – Use Carriage Service to Cause Offence, which, is a Commonwealth offence.

Submissions at Sentence Indication

Our client gave instructions to proceed with a sentence indication on the lesser offence.

The indication allowed us to ventilate the reliability issues in the complainant’s account. It also allowed us to make submissions about why a good behaviour bond without conviction was appropriate.
Importantly, a good behaviour bond is the only avenue a Magistrate has to a non-conviction disposition in the Commonwealth jurisdiction.

We relied on the character and antecedents of our client who otherwise had not criminal history whatsoever. We highlighted extenuating circumstances at the time of the allegations including COVID-19 and its significant impact on our client’s personal circumstances at the time.

We submitted that having regard to the purpose of sentence it was expedient to release our client on probation. To that end, we tendered a comprehensive psychological report which assessed our client as being of low risk of specific and general reoffending.

We submitted that in those circumstances it was appropriate to sentence our client to a bond with special conditions requiring him to engaging with psychological treatment.

What was the result?

We were successful in persuading the Magistrate.

Having regard to our client’s age and the matters contained in the psychological report as well as the client’s fulsome admissions the Court sentenced our client to a good behaviour bond of 6 months without conviction.

That bond included special conditions requiring the client to continue to engage with psychological services.