The Offence of Using a Carriage Service to Procure a Child Under 16 for Sexual Activity

The deputy principal at a high school in Sydney’s south-west has been sentenced to more than three and a half years behind bars for sexting who he believed to be a 14-year old girl.

Damian Wanstall’s LinkedIn profile hasn’t been updated with the latest developments in his teaching career, which is now over after he was sentenced to imprisonment by judge in Paramatta District Court this week over the conduct.

The former deputy principal at Kellyville High School was arrested in 2020 after he sent a string of messages to a team of undercover police officers posing as a female teen.

The offending

In December 2020, Mr Wanstall placed an ad online under the heading: “Any legal Indian or Filo teens want fun?” It went onto read: “40yo Aussie daddy seeking sexy play this weekend. Will reward. Can host discreetly Rouse Hill.”

Upon arriving at what he thought was the meet-up point in the Sydney suburb of Westmead with $200 in his pocket, Mr Wanstall was greeted by sex crimes officers, who placed him under arrest.

He was charged with one count of using a carriage service to procure a child under 16 for sexual activity over the sexually explicit texts which occurred over a number of days, and ultimately pleaded guilty to that offence.

During the sentencing proceedings, the court heard that Mr Wanstall repeatedly asked in his messages for “raunchy” pictures and suggested that when he meets with the girl, she should not be wearing her uniform “so it looks less suss”.

The Crown Prosecutor maintained that Mr Wanstall believed he was meeting a 14-year-old and had been reminded of the girl’s age multiple times over four days, including on the day he was arrested

Judge Andrew Colefax found the offending in the mid-range of seriousness and rejected Mr Wanstall’s defence that he had been ‘drunk’ while sending the messages because some of them were sent on weekdays, within school hours, when presumably, the teacher was on duty at school and not drinking.

The Judge also rejected Mr Wanstall’s claims that he was using the chats as “bait” to rekindle his relationship with his former partner, by making her jealous and noted that several times the Mr Wanstall changed his version of the events, originally telling the Local Court in January 2023 that he was a victim of a police sting which had been misled by police officers.

Using a carriage service to procure a child under 16 for sexual activity

Using a carriage service to procure a person under the age of 16 years for sexual activity is an offence under section 474.26(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You were at least 18 years of age,
2. You used a carriage service to transmit a communication to another person,
3. You intended by doing so to procure the person to engage in sexual activity with you, and
4. The person was under the age of 16 years, or you believed him or her to be under that age.

What is a ‘carriage service’?

A carriage service is defined as ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions such as emails and social media messaging.

What is ‘to procure’?

To ‘procure’ is to encourage, entice, recruit or induce, whether by threats, promises or otherwise.

What is ‘sexual activity’?

‘Sexual activity’ includes sexual intercourse, sexual touching and other acts of a sexual nature.

Statutory defence

You are not guilty of the offence if you establish to the court on the balance of probabilities that you believed the recipient to be at least 16 years of age.

For the purpose of establishing your belief about age, any representation made to you that the recipient was under, of or over a certain age is proof that you believed he or she was of the represented age unless there is evidence to the contrary.

When determining your belief about age, the court may consider a range of matters including:

1. The recipient’s appearance,
2. Any medical or other scientific opinion,
3. Any document that is or appears to be an official or medical record from outside Australia, and
4. Any document that appears to be a copy of such a record.

It is immaterial that the recipient was a fictitious person representing themselves as a real person.

You may be found guilty even if it was impossible for the sexual activity to take place.

You are not guilty if you attempted but failed to convey the communication to the recipient.

General legal defences

General legal defences also apply to the charge, including the defence of duress which is where you engaged in the conduct due to an imminent and continuing serious threat to you and/or someone close to you, and your conduct was a reasonable response in the circumstances.

In the event you are able to raise evidence of a general legal defence, the onus is then placed on the prosecution to disprove the applicability of that defence beyond a reasonable doubt.

You are entitled to an acquittal (a verdict of not guilty) if the prosecution is unable to do this.

What is a sentencing discount in New South Wales?

Mr Wanstall received a 10 per cent discount to his sentence for the guilty plea he made four weeks before his trial was set to begin.

Under Section 22 of the Crimes (Sentencing Procedure) Act 1999 (the Act) when considering and passing sentence for a person who has pleaded guilty, the court must take into account:

• the fact a plea of guilty has been entered,
• when the plea was indicated, and
• the circumstances in which the plea was indicated.

Essentially, courts have the power to ‘discount’ sentences for anyone who pleads guilty to an offence, however the discount must be disproportionate to the nature and circumstances of the offence. The discount, which is called a ‘utilitarian discount’, is applied as a discount for saving public resources including investigative and prosecutorial time, as well as court time.

A discount can reduce the time a person spends in prison, or it can also result in a more lenient type of penalty being imposed – such as an intensive correction order rather than a prison sentence.

Mr Wanstall will be eligible for parole in May 2025.