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District Court 10 July 2015

R v Hicks (No 2)

[2015] NSWDC 384

Sexual offences
CRIMINAL LAW SENTENCE POSSESS CHILD ABUSE MATERIALL

Citation: R v Hicks (No 2) [2015] NSWDC 384
Court: District Court of New South Wales
Date: 10 July 2015
Judge(s): Berman SC DCJ

Background

The offender was convicted of using a carriage service to groom a person under the age of 16, using a carriage service to transmit an indecent communication, and possessing child abuse material. At an earlier hearing, the sentencing judge had determined that a custodial sentence of two years or less was appropriate and referred the offender for assessment as to suitability for an intensive corrections order (ICO), which allows an offender to serve a term of imprisonment in the community under strict supervision rather than in full-time custody.

The initial ICO suitability report found the offender unsuitable, citing concerns about his accommodation arrangements and a suggestion that he had been less than candid during the assessment process. A submission was made that a further assessment should be sought to allow the offender to address those concerns, and the matter was adjourned accordingly.

A second ICO assessment found the offender suitable, though the court noted the assessment was not enthusiastic. The Crown nonetheless submitted that full-time custody remained appropriate despite the finding of suitability.

  • Whether the offender should serve his sentence of imprisonment by way of an intensive corrections order or by full-time custody
  • What weight should be given to a positive but qualified ICO suitability assessment
  • How the particular circumstances of the offending (including the role of police conduct in continuing the offending) bore on the sentencing outcome

Decision

Berman SC DCJ acknowledged that the offending was serious, noting that the imposition of a custodial sentence itself reflected the gravity of the conduct. However, his Honour observed that this was an unusual case, particularly because the offending would likely not have continued had police not been posing as a child and re-initiating contact with the offender.

His Honour rejected the Crown's submission that full-time custody was warranted despite the positive suitability assessment. The court reasoned that the community's interests were best served by giving the offender the maximum opportunity to address the underlying causes of his offending, rather than by imposing immediate full-time imprisonment.

The court accepted that an ICO was the more appropriate mechanism for protecting the community from further offending in the circumstances of this case. His Honour made clear, however, that non-compliance with the ICO conditions would result in the offender being imprisoned.

Orders Made

  • The offender is sentenced to two years' imprisonment on each matter.
  • The sentence is to be served by way of an intensive corrections order, commencing 20 July 2015.
  • Additional conditions imposed alongside the standard ICO conditions:
  • The offender must complete a sex offender treatment program with an accredited psychologist.
  • The offender must continue to attend sessions with psychologist Phillip Screen (or a comparable psychologist) for as long and as frequently as that psychologist recommends, to reduce the likelihood of further offending.

Key Takeaways

  • The District Court confirmed that an ICO remains available even where an initial suitability assessment is negative, provided a subsequent assessment establishes suitability and the sentencing judge is satisfied it best serves community interests.
  • A positive but qualified ICO suitability assessment does not automatically preclude an ICO; the court weighed the overall circumstances, including the nature of the offending and the prospects of rehabilitation, in determining the appropriate sentencing disposition.
  • Where police conduct played a material role in continuing an offender's engagement in criminal behaviour, that circumstance may be a relevant (though not exculpatory) factor in the sentencing exercise.
  • Community protection, rather than leniency toward the offender, was the stated rationale for preferring an ICO over full-time custody in this case.
  • Non-compliance with ICO conditions was expressly identified as carrying the consequence of full-time imprisonment, reinforcing that an ICO is a form of custodial sentence, not an alternative to one.

Legislation and Cases Referenced

Legislation:
- The offences concern the use of a carriage service to groom a person under 16, use of a carriage service to transmit an indecent communication, and possession of child abuse material (the specific statutory provisions were not cited in the judgment text).

Cases:
- No cases were cited in the judgment.