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District Court 2 February 2015

R v Hicks

[2015] NSWDC 67

Sexual offences
CRIMINAL LAW SENTENCE POSSESS CHILD ABUSE MATERIAL UNUSUAL FACTUAL FEATURES

Citation: R v Hicks [2015] NSWDC 67
Court: District Court of New South Wales
Date: 2 February 2015
Judge(s): Berman SC DCJ

Background

The offender, a 44-year-old man with no prior criminal history, pleaded guilty to three offences arising from online conduct involving a sexual interest in underage girls. The offences came to light after a member of the public reported his behaviour to police, having become aware through online chats that the offender was seeking photographs of and details about young females.

Following that report, an undercover police officer posed as the uncle of a 13-year-old girl named "Gemma" and suggested the offender contact her. The offender then communicated over several months with a person he believed to be that 13-year-old girl, sending more than 200 text messages, many of which were sexual in nature. He persistently requested photographs and made explicit suggestions about meeting and engaging in sexual activity.

When arrested, the offender was found to have 11 images constituting child abuse material on his mobile phone. The case proceeded to the District Court for sentencing on three counts: using a carriage service to groom a person under 16, using a carriage service to transmit an indecent communication, and possessing child abuse material.

  • What was the appropriate sentence for each of the three offences, taking into account their objective seriousness and the offender's moral culpability?
  • To what extent did the police operative's role in initiating and, at times, re-initiating contact affect the assessment of the offender's culpability?
  • Whether the offences warranted full-time custodial imprisonment or whether an alternative form of custody, specifically an intensive corrections order, was open on the facts?
  • What discount was appropriate for the offender's guilty pleas and his willingness to facilitate the course of justice?

Decision

Berman SC DCJ identified three features that made this case unusual compared with typical offending of this kind. First, the initial contact with the fictional "Gemma" was initiated by a police officer. Second, the Crown conceded that the police operative, not the offender, re-initiated contact on occasions when communication had lapsed for a week or more. Third, the number of child abuse material images found on the offender's phone was very small.

His Honour noted the real possibility that the grooming offence would not have continued, and may not have commenced at all, without the police operative's involvement. The court was also influenced by the finding that the offender was not a person obsessed with child sexual abuse material who engaged in constant online grooming, the category of offender most commonly appearing before the courts for this type of conduct.

The offender received a 15 per cent reduction across all three offences to reflect his willingness to facilitate the course of justice, notwithstanding that his pleas were entered on the first day of trial. His Honour acknowledged the late timing but noted the offender had indicated an intention to plead guilty since committal.

The Crown submitted that only full-time custody was appropriate. His Honour gave this anxious consideration but ultimately concluded that the unusual features of the case placed it outside the ordinary category. The overall sentence was assessed as likely to be less than two years, making the offender eligible for consideration of an intensive corrections order. The matter was adjourned for an assessment of the offender's suitability for that order.

Orders Made

  • The offender was remanded for sentence at 10:00 am on Friday 8 May 2015.
  • An assessment of the offender's suitability to serve a sentence by way of an intensive corrections order was ordered.
  • Bail was continued for that purpose.

Key Takeaways

  • The District Court confirmed that police conduct in initiating and re-initiating contact with an offender is a relevant factor in assessing both the objective seriousness of grooming offences and the offender's moral culpability, even where the offender was independently predisposed to such conduct.
  • A guilty plea entered on the first day of trial can still attract a sentencing discount where the offender had communicated an intention to plead guilty prior to that point, though the level of discount will reflect the limited degree to which the course of justice was facilitated.
  • Offences involving online grooming, transmitting indecent communications, and possessing child abuse material are treated as serious as a class, but their individual gravity remains fact-specific and must reflect the particular circumstances of the offending.
  • Where the total custodial term is likely to fall under two years, a sentencing court may refer an offender for assessment as to suitability for an intensive corrections order, even in cases involving sexual offending against children, provided the facts are genuinely unusual.
  • An actuarial assessment placing an offender in the low-risk category for sexual re-offending, combined with stable personal circumstances and engagement with psychological treatment, are factors that may weigh in favour of a non-custodial alternative to full-time imprisonment.

Legislation and Cases Referenced

Legislation:
- Commonwealth offence: use of a carriage service to groom a person under 16 years of age (maximum penalty: 12 years' imprisonment)
- Commonwealth offence: use of a carriage service to transmit an indecent communication (maximum penalty: 7 years' imprisonment)
- New South Wales State offence: possession of child abuse material

Note: Specific legislative provisions were not cited in the judgment text provided.

Cases: No cases were cited in the judgment text provided.