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District Court 7 April 2017

R v FORREST, David Michael

[2017] NSWDC 241

Sexual offences
CRIMINAL SENTENCE COMMONWEALTH AND STATE OFFENCES 34 YEAR OLD MALE FORM 1 OFFENCE PRE

Citation: R v Forrest, David Michael [2017] NSWDC 241
Court: District Court of New South Wales
Date: 7 April 2017
Judge: Judge S Norrish QC

Background

A 34-year-old man was sentenced in the NSW District Court on seven offences arising from conduct between July 2014 and January 2015. The offences involved using a carriage service (that is, electronic communications, including the internet) to transmit indecent material and child pornography to a person under 16 years of age, procuring a child under 16 for sexual activity, and possessing and disseminating child abuse material.

Investigators identified the offender through an undercover online operation. A police operative assumed the online identity of a 14-year-old boy, and the offender transmitted sexual material and arranged to meet that person in person. He was arrested at Parramatta on 14 January 2015. A subsequent search warrant executed at his parents' home uncovered material on an iPad and computer that gave rise to the remaining charges.

Six of the seven counts were Commonwealth offences, with the seventh a State offence under the Crimes Act 1900 (NSW). A further offence of disseminating child abuse material was placed on a Form 1 to be taken into account on sentencing (meaning the court would consider it without recording a separate conviction). The offender had no prior criminal record and had entered an early plea of guilty.

  • How should an offender's significant intellectual disability and cognitive limitations affect the assessment of objective criminality and moral culpability?
  • What weight should be given to general deterrence where an offender has pronounced intellectual deficits?
  • How should the "two-stage" sentencing approach be applied, and what caution does Markarian v The Queen require?
  • How should total sentence length be determined across multiple Commonwealth and State offences, with reference to totality principles?
  • Whether a non-custodial or community-based sentence (specifically an intensive correction order) was open given the circumstances.

Decision

Judge Norrish QC identified Count 3, the use of a carriage service to transmit child pornography material, as the most serious offence. It carried a maximum penalty of 15 years imprisonment, covered the longest period of offending, and was the most serious in character. Count 6, procuring a child for sexual activity, also carried a maximum of 15 years and involved direct contact with what the offender believed was a real child.

The court devoted considerable attention to the offender's intellectual disability and significant cognitive limitations. Drawing on Markarian v The Queen [2005] HCA 25, the court emphasised that personal circumstances cannot be cleanly separated from the assessment of objective gravity. The offender's intellectual and developmental limitations were directly relevant to his moral culpability, not merely to mitigation in a second stage. The court accepted that these limitations reduced the weight to be given to general deterrence, which ordinarily carries significant force in this category of offending.

The court noted the offender had no prior criminal record, had entered an early guilty plea, had expressed genuine remorse, and had spent time on remand in pre-sentence custody under strict bail conditions. A Community Corrections report observed good family support and psychiatric and psychological care. His time on remand was described as having had a salutary effect. These factors were weighed cumulatively.

The court concluded that the total sentence should not exceed two years imprisonment. It expressly stated that an offender of average or below-average maturity and intelligence would have faced a sentence of no less than four years. The court adjourned to allow for assessment of suitability for an intensive correction order as an alternative to full-time custody, while noting the matter would require close reconsideration if the offender was found unsuitable.

Orders Made

  • The offender was convicted on each offence.
  • The court determined that no penalty other than imprisonment was appropriate under either the Commonwealth or State legislation.
  • The total sentence was set at no more than two years.
  • The offender was referred for assessment of suitability for an intensive correction order.
  • Bail was continued until the assessment date.
  • The offender was directed to report to the Community Corrections Office at Burwood by 5pm on 10 April 2017.
  • Community Corrections was directed to prepare an intensive correction order assessment report on or before 26 May 2017.
  • The matter was adjourned to 26 May 2017.

Key Takeaways

  • Intellectual disability is not merely a mitigating personal circumstance to be applied as a discount at a second sentencing stage. Following Markarian v The Queen, the District Court treated it as directly relevant to the assessment of objective criminality and moral culpability from the outset.

  • Where an offender suffers from significant cognitive limitations, the weight ordinarily accorded to general deterrence may be reduced, even in a category of offending where general deterrence is typically a substantial sentencing consideration.

  • The court's reasoning reflects the High Court's disapproval in Markarian and Wong v DPP (Cth) of rigid, mechanistic sentencing approaches that isolate objective seriousness from personal circumstances connected to the offending itself.

  • A holistic assessment of mitigating factors, including an early guilty plea, absence of prior criminal history, genuine remorse, pre-sentence custody on strict bail conditions, vulnerability in custody, and good support structures, can collectively produce a significantly reduced total sentence in child sexual offence matters.

  • The availability of an intensive correction order was not determined at the sentencing hearing. The court flagged that full-time custody would require close reconsideration if the offender was found unsuitable for that order, indicating the suitability assessment was integral to the final sentencing outcome.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth), Part 1B

Cases
- Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357
- Wong v DPP (Cth) [2001] HCA 64
- Hili v The Queen [2010] HCA 45
- Muldrock v R [2011] HCA 39
- Jones v The Queen 242 CLR 520
- Pearce v R (1998) 194 CLR 610
- Mill v R (1988) 166 CLR 59
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- Douar v R [2005] NSWCCA 455
- R v Way (2004) 60 NSWLR 168
- R v Booth [2009] NSWCCA 89
- R v De Leeuw [2015] NSWCCA 183
- R v Porte [2015] NSWCCA 174
- R v Asplund; Asplund v R [2010] NSWCCA 316
- R v Bailey [2012] NSWSC 1074
- R v Hemsley [2004] NSWCCA 228
- R v Zamagias [2002] NSWCCA 17
- R v Engert (1995) 84 A Crim R 67
- R v Cartwright (1989) 17 NSWLR 243
- R v Smith (1987) 44 SASR 587