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District Court 7 June 2013

R v Shelford No 2

[2013] NSWDC 158

Sexual offences
CRIMINAL LAW SENTENCE SCHEDULE UNDER 16BA POSSESS CHILD ABUSE MATERIAL

Citation: R v Shelford No 2 [2013] NSWDC 158
Court: District Court of New South Wales
Date: 7 June 2013
Judge(s): Berman SC DCJ

Background

The offender appeared for sentencing on two offences arising from his use of the internet, including chat logs, photographs, and videos. The offences involved the possession and transmission of child abuse material and child pornographic material. A related Commonwealth offence of using a carriage service to access child pornographic material was also before the court on a schedule to be taken into account at sentencing.

The matter had been adjourned following an earlier sentencing hearing on 19 April 2013, at which the judge determined that the likely sentence length made an Intensive Correction Order (ICO) a possibility. An ICO is a community-based sentence served outside full-time custody, subject to strict mandatory conditions. The offender was assessed for suitability, and that assessment came back favourable.

  • Whether the offender was suitable to serve his sentence by way of an Intensive Correction Order rather than full-time imprisonment.
  • How to structure sentencing across two interrelated offences (one State, one Commonwealth), including a further Commonwealth matter to be taken into account under section 16BA of the Commonwealth Crimes Act.
  • Whether the sentences for the separate offences should be served concurrently or cumulatively.

Decision

Berman SC DCJ confirmed that imprisonment was the appropriate head sentence, but ordered it to be served by way of an ICO, consistent with the findings from the April 2013 hearing. The favourable suitability assessment supported that approach.

The court addressed two discrete offences: a State offence of possessing child abuse material and a Commonwealth offence of using a carriage service to transmit child pornographic material. A further Commonwealth offence of using a carriage service to access child pornographic material was taken into account under section 16BA of the Commonwealth Crimes Act, meaning it was noted on a schedule and considered when determining the overall sentence rather than attracting a separate penalty.

Because the offences were interrelated, all arising from the same pattern of online conduct, the court imposed concurrent sentences. Each sentence was set at two years' imprisonment, to be served by way of an ICO commencing 17 June 2013.

The court also made clear to the offender that compliance with the mandatory ICO conditions was essential. Breach of those conditions could result in the order being cancelled and the offender being required to serve the balance of the sentence in full-time custody.

Orders Made

  • The offender was sentenced to two years' imprisonment for the State offence of possessing child abuse material.
  • The offender was sentenced to two years' imprisonment for the Commonwealth offence of using a carriage service to transmit child pornographic material (with the section 16BA schedule offence taken into account).
  • Both sentences were ordered to be served concurrently.
  • Both sentences were ordered to be served by way of an Intensive Correction Order, commencing 17 June 2013.
  • The ICO was subject to all mandatory prescribed conditions, with breach potentially resulting in cancellation of the order and full-time imprisonment.

Key Takeaways

  • The District Court applied the two-stage sentencing process contemplated by the ICO regime: first determining whether the sentence length made an ICO available, then adjourning for a suitability assessment before finalising the order.
  • Where multiple offences arise from the same course of interrelated conduct, a court may impose concurrent rather than cumulative sentences, reflecting the overall criminality as a single episode.
  • Under section 16BA of the Commonwealth Crimes Act, a related offence may be placed on a schedule and taken into account when sentencing for the primary offence, rather than attracting its own separate sentence.
  • A two-year term of imprisonment does not automatically result in full-time custody; an ICO remains available where the offender is assessed as suitable and the sentencing court considers it appropriate.
  • Breach of an ICO's mandatory conditions carries the consequence of cancellation, exposing the offender to full-time imprisonment for the remainder of the term.

Legislation and Cases Referenced

Legislation:
- Commonwealth Crimes Act, section 16BA (schedule offences to be taken into account)

Cases:
No cases were cited in the judgment.