Citation: [2014] NSWDC 42
Court: District Court of New South Wales
Date: 28 February 2014
Judge(s): Berman SC DCJ
Background
The offender appeared for sentencing on two offences under the Commonwealth Criminal Code: using a carriage service to transmit an indecent communication, and using a carriage service to solicit child pornographic material. Both offences were dealt with together on 22 November 2013, at which time the sentencing judge outlined the objective and subjective circumstances and indicated that a sentence of two years or less was likely.
Following that first hearing, the offender was referred for assessment of his suitability to serve any sentence by way of an intensive corrections order (ICO), which is a form of community-based custodial supervision as an alternative to full-time imprisonment. The assessment found him suitable.
At the February 2014 hearing, defence counsel submitted that any term of imprisonment should be suspended rather than served by way of an ICO.
Legal Issues
- Whether the sentence should be suspended, or whether a more substantial punitive response was required
- Whether an intensive corrections order was an appropriate vehicle for serving the term of imprisonment
Decision
Berman SC DCJ rejected the submission that the sentence should be suspended. The court found the offences were serious and that the offender required meaningful punishment, which a suspended sentence would not adequately provide. A suspended sentence was also considered insufficient to give effect to the need for general deterrence.
The court instead imposed concurrent two-year sentences of imprisonment to be served by way of an intensive corrections order, commencing 10 March 2014. This outcome balanced the seriousness of the offending against the offender's assessed suitability for community-based supervision.
Orders Made
- The offender was sentenced to two concurrent terms of imprisonment of two years on each offence
- Both sentences are to be served by way of an intensive corrections order, commencing 10 March 2014
- The intensive corrections orders are subject to the mandatory conditions prescribed by cl 175 of the Crimes (Administration of Sentences) Regulation
- A copy of the conditions was to be provided to the offender at the registry
Key Takeaways
- The District Court declined to impose a suspended sentence where the offences were serious Commonwealth carriage service offences involving child pornographic material, finding that suspension would inadequately reflect both punishment and general deterrence.
- A finding of suitability for an intensive corrections order, following a formal assessment, was accepted as a sufficient basis to impose that mode of service rather than full-time custody.
- General deterrence was identified as a substantial sentencing consideration requiring more than a nominal custodial response such as suspension.
- Concurrent sentences were imposed across both charges, resulting in an effective head sentence of two years served in the community under intensive supervision.
- Under the sentencing framework applied, the court treated an intensive corrections order as a meaningful punitive outcome, distinct from and more onerous than a suspended sentence.
Legislation and Cases Referenced
Legislation:
- Commonwealth Criminal Code (Cth) (specific provisions not identified in the judgment text)
- Crimes (Administration of Sentences) Regulation (NSW), cl 175
Cases cited: None cited in the judgment text provided.