Citation: Regina v Sereno [2007] NSWDC 273
Court: District Court of New South Wales
Date: 21 December 2007
Judge(s): Williams DCJ
Background
The offender, a 31-year-old IT professional, pleaded guilty to aggravated indecent assault on a child under 10 and possession of child pornography. A further charge of aggravated indecent assault on a person under 16 was taken into account on a Form 1 (a procedure by which additional offences are formally acknowledged at sentencing without attracting separate conviction or penalty, but which the court may factor into the overall sentence).
The offender had been engaged to work on computers at a private home. He returned to the home on 28 April 2006 when he knew no supervising adult would be present. The court found that he had deliberately arranged this situation. During that visit, he sexually touched a nine-year-old girl and pressed himself against a 12-year-old girl from behind. Both victims objected and moved away.
Following the offender's arrest in May 2006, his partner discovered more than 100,000 deleted child pornography images and approximately 1,000 actual images on his computers, together with five videos depicting child sexual abuse. The court reviewed some of this material and described it as depicting very young children subjected to overt sexual acts with adults.
Legal Issues
- What sentences were appropriate for the aggravated indecent assault offences and the child pornography possession offence, having regard to the relevant statutory maximum penalties and standard non-parole periods?
- What weight should be given to the offender's guilty pleas, apparent lack of remorse, partial denial of the child pornography offending, and good character?
- Whether the sentences for the separate offences should be partly accumulated, and whether special circumstances existed to justify a departure from the standard ratio between the non-parole and total sentence terms.
Decision
Williams DCJ identified several aggravating features: the offender abused a position of trust he had created himself, the victims were vulnerable children, the offending involved multiple acts, and there was a degree of planning. The court found the offender had deliberately arranged to be alone with the children, which was inconsistent with any characterisation of the assaults as impulsive.
On remorse and rehabilitation, the court was not persuaded that these factors weighed significantly in mitigation. The offender denied aspects of the child pornography offending to the pre-sentence report author, attempted to deflect blame onto his former partner, and minimised the nature of the material. The pre-sentence report noted that, because of this partial denial, the offender was unlikely to be accepted into the CUBIT sex offender program unless he fully acknowledged his culpability at a later stage.
The court accepted the guilty pleas as a mitigating factor and applied a discount of 25% for the child pornography offence and 20% for the indecent assaults. Although the two categories of offending were related in nature, they were treated as legally distinct, and the court imposed partially accumulated sentences. The court observed that, absent the indictable assault charges, the child pornography matter would likely have been dealt with in the Local Court.
Special circumstances were found to exist, justifying a longer parole period than the standard formula would produce. The court pointed to the partial accumulation of sentences and the identified need for intensive supervision and participation in a sex offender program during the parole period.
Orders Made
- The offender was convicted of both the aggravated indecent assault (under 10) and the possession of child pornography offences.
- For possession of child pornography: minimum term of 9 months, total term of 18 months, commencing 5 May 2006.
- For aggravated indecent assault (taking into account the Form 1 matter): minimum term of 15 months, total term of 2 years and 6 months, commencing 5 November 2006.
- Release on parole on 4 February 2008, with the total term expiring 4 May 2009.
- The offender was required to accept supervision by the Probation and Parole Service and to attend such programs as directed during the parole period.
Key Takeaways
- The District Court confirmed that deliberate positioning to gain unsupervised access to child victims constitutes planning that aggravates the seriousness of sexual offences, even where the physical acts themselves were relatively brief.
- Partial denial of the full extent of offending, despite a guilty plea, can substantially reduce the weight attributed to remorse and rehabilitation at sentence.
- Where an offender faces charges arising from both contact sexual offending and child pornography possession, the court treated these as legally distinct matters warranting at least partial accumulation of sentences, rather than full concurrency.
- Special circumstances justifying a longer parole period can be established by reference to the combined effect of partial accumulation and the offender's identified need for sustained therapeutic intervention.
- Child pornography offending was characterised by the court as a market-driven harm that perpetuates the exploitation of children depicted in the material, a consideration informing the weight given to general deterrence in sentencing.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including ss 61M(1) and (2) (aggravated indecent assault)
Cases:
- R v Gent (2005) 162 A Crim R
- R v A.I.S [2006] NSWCCA 355
- R v L.J.G [2006] NSWCCA 216
- R v Blinco [2006] NSWCCA 105
- R v AEL [2005] NSWCCA 148
- R v Newbigging [2004] NSWCCA 239
- R v Di Cola [1999] NSWCCA 195
- R v Lozanovski [2006] NSWCCA 143
- R v Spiller [2000] NSWCCA 36
- Power v DPP (unreported, District Court, 19 July 2007, Boulten ADCJ)