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District Court 16 December 2008

R v PN

[2008] NSWDC 353

Sexual offences
CRIMINAL LAW SENTENCE CHILD SEXUAL OFFENCES POSSESS CHILD PORNOGRAPHY DISSEMINATE CHILD PORNOGRAPHY SEXUAL INTERCOURSE WITH A CHILD

Citation: R v PN [2008] NSWDC 353
Court: District Court of New South Wales
Date: 16 December 2008
Judge(s): Cogswell SC DCJ

Background

The offender, referred to as PN to protect the identities of victims, appeared for sentencing on a large number of child sexual offences committed over approximately six years. PN had no significant prior criminal history and had experienced a relatively normal upbringing. Despite this, his offending escalated from possession and dissemination of child pornography through to online grooming and direct sexual abuse of multiple child victims.

The victims included children contacted via the internet from different parts of NSW, as well as PN's own stepdaughter. PN was arrested on 18 May 2007 and had remained in custody from that date. He pleaded guilty to all charges.

The sentencing proceeded on agreed facts, with the court also receiving a forensic psychiatric report from Dr Jonathan Carne and victim impact statements. The primary task before the court was to determine an appropriate overall sentence that reflected the totality of extremely serious and sustained offending while giving weight to the guilty pleas, the forensic psychiatric evidence, and any prospects for rehabilitation.

  • What overall sentence appropriately reflected the totality of multiple, serious child sexual offences spanning several categories of offending?
  • What weight should be given to the guilty pleas, remorse, prior good character, and prospects for rehabilitation?
  • How should individual sentences for numerous counts and additional matters taken into account under s 32 of the Crimes (Sentencing Procedure) Act 1999 be structured and aggregated?
  • What non-parole period was appropriate given the nature and extent of the offending?

Decision

Cogswell SC DCJ described the offending as spanning virtually every category of child sexual crime: possession and dissemination of child pornography, online grooming and procurement, and direct physical sexual abuse of multiple child victims ranging in age from under 14 to under 17. The court noted that each category of offence, taken individually, would ordinarily attract a custodial sentence. PN had committed offences across all of those categories and, in most cases, on multiple occasions, producing multiple victims.

The court acknowledged that PN was not a career criminal and had demonstrated genuine remorse. The forensic psychiatric report was admitted into evidence and the court directed that a copy accompany PN into custody to assist those responsible for his treatment and rehabilitation in the Department of Correctional Services. The guilty pleas were taken into account in PN's favour, as were the circumstances of his background and character.

Notwithstanding those mitigating factors, the court concluded that the scale and sustained nature of the offending required harsh sentences. The individual sentences were structured across the numerous counts, with additional matters taken into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and s 16B(a) of the Crimes Act 1914 (Cth) where applicable. The sentences were then aggregated, applying the totality principle, to produce a single overall term.

Orders Made

  • Overall sentence of 15 years imprisonment, commencing 18 May 2007 and concluding 17 May 2022.
  • Non-parole period of 10 years, with an earliest eligible parole date of 17 May 2017.
  • A copy of the forensic psychiatric report of Dr Jonathan Carne (Exhibit 1) to accompany PN into custody and be made available to relevant Corrective Services personnel for treatment and rehabilitation purposes.
  • Exhibits B and C to be collected by police from the registry and destroyed, but not before 30 June 2009.

Key Takeaways

  • The District Court imposed an aggregate sentence of 15 years with a 10-year non-parole period where an offender, lacking significant prior criminal history, had nonetheless committed sustained and wide-ranging child sexual offences across multiple categories and against multiple victims.
  • A guilty plea, genuine remorse, prior good character, and positive prospects for rehabilitation were each recognised as mitigating factors, but did not displace the need for substantial custodial sentences given the scale of the offending.
  • Where an offender is sentenced for offences spanning possession and dissemination of child pornography, online grooming, and direct physical sexual abuse, the sentencing court must have regard to the totality principle in structuring individual sentences and producing a single overall term.
  • Additional charges taken into account under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and s 16B(a) of the Crimes Act 1914 (Cth) formed part of the sentencing calculus, allowing the court to reflect the full breadth of offending without imposing separate sentences for every individual matter.
  • The court directed that forensic psychiatric material be forwarded with the offender into custody, signalling the relevance of that material to rehabilitation planning within the correctional system.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 61M(1), 66C(1), 66C(3), 73(1), 91A(2), 91H(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 32
- Criminal Code Act 1995 (Cth): s 474.26(1)
- Crimes Act 1914 (Cth): s 16B(a)

Cases
- R v Gent [2005] NSWCCA 370
- R v Cook; ex parte Attorney-General (Qld) [2004] QCA 469
- R v Jones (1999) 108 A Crim R 50
- Tector v R [2008] NSWCCA 151