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District Court 22 March 2017

R v MORRISON, Stephen

[2017] NSWDC 243

Sexual offences
CRIMINAL SENTENCE 1 FORM OFFENCE OF A SIMILAR NATURE SINGLE MALE AGED 55 LOSS OF EMPLOYMENT FOLLOWING ARREST REMORSE AND CONTRITION SHOWN

Citation: R v Morrison, Stephen [2017] NSWDC 243
Court: District Court of New South Wales
Date: 22 March 2017
Judge: Judge Norrish QC

Background

The offender, a 55-year-old male, was committed from the Local Court to the District Court for sentence on a charge of using a carriage service to transmit communications to a recipient he believed to be under 16 years of age, with the intention of facilitating sexual activity. The offence arose from online contact between April and June 2015 with an undercover NSW Police officer operating as an assumed identity posing as a 13-year-old male.

A second, related offence was taken into account on a Form 1: using a carriage service to send indecent material to a person the offender believed to be under 16. Both offences arose from the same series of online exchanges. The offender had pleaded guilty at an early stage and had been on conditional bail since his arrest in August 2015.

The facts were unusual in several respects. The undercover officer initiated contact first; the offender sent an explicit image before he was told the assumed identity was 13; and the offender used his real name and personal email address throughout, making no attempt to conceal his identity. No child abuse material was found on his personal computers.

  • What was the appropriate sentence for an offence under s 474.27(1) of the Criminal Code (Cth), given the specific and unusual factual circumstances?
  • Whether the offender's conduct should be characterised as "predatory behaviour" in line with sentencing authorities involving more serious offenders of this type.
  • Whether the term of imprisonment should be suspended, having regard to the offender's personal circumstances, prospects of rehabilitation, and the distinctive features of the case.
  • The weight to be given to the utilitarian benefit of the early guilty plea, prior good character, demonstrated remorse, and the fact that police initiated the relevant contact.

Decision

Judge Norrish QC found that, while the offending was serious and the maximum penalties were 12 years (principal offence) and 7 years (Form 1 offence), the circumstances of this case were markedly different from most comparable cases that came before the courts. The Judge expressly declined to characterise the offender as a "predator," noting that the police assumed identity initiated contact on multiple occasions and that the offender sent the explicit image before learning the stated age of the recipient.

The sentencing court placed significant weight on a number of mitigating factors: the early guilty plea and its utilitarian value, the absence of prior convictions, genuine remorse and contrition, a lengthy period of post-arrest counselling, the loss of employment following arrest, and excellent prospects of rehabilitation. No mental health conditions were identified as relevant, but the offender's personal history and circumstances were examined in detail through psychological evidence.

After distinguishing the authorities cited by both parties on comparative sentencing, the court concluded that a suspended term of imprisonment was appropriate. The judge noted that the offender had not initiated the online relationship, had not used a concealed identity, and had engaged meaningfully with rehabilitation. These features, taken together, justified departure from the custodial sentences imposed in many of the cited cases.

The court also commented directly on the unacceptable delay in finalising what it described as a matter of no great complexity, noting that the offender had first appeared in the District Court almost a year before sentencing. The judge expressed the view that the court should review its systems to ensure timely resolution of such matters.

Orders Made

  • A term of imprisonment was imposed and suspended for a period of two and a half years, with the offender required to enter into a recognisance (a formal undertaking) to be of good behaviour for that period.
  • Forfeiture of the Apple iPhone used in the commission of the offences was ordered.
  • The offender was placed on the Child Protection Offenders Register under the Child Protection (Offenders Registration) Act 2000 (NSW).
  • Documentation relating to the Child Protection Register was placed on the court file.

Key Takeaways

  • The District Court drew a clear distinction between this offender and those characterised as "predators" in comparable sentencing decisions, finding that the repeated initiation of contact by the undercover officer was a material feature that affected the objective seriousness of the conduct.
  • Where an offender sends explicit material before being informed of the recipient's purported age, that sequence of events is relevant to the assessment of culpability at sentence, even though the ultimate conduct remains criminal.
  • A suspended term of imprisonment remained available as a sentencing outcome for a first-time offender under s 474.27(1) of the Criminal Code (Cth), where the combination of mitigating factors was sufficiently compelling, including early plea, prior good character, rehabilitation, and the specific circumstances of police-initiated contact.
  • Sentencing courts are required to explain the consequences of a suspended sentence and recognisance to the offender, including the risk of revocation and re-sentencing if conditions are breached.
  • Unexplained and extended delay in finalising a sentence, even where the matter is not legally complex, drew direct criticism from the District Court as contrary to the interests of both the community and the offender.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 474.27(1), 474.27A
- Crimes Act 1914 (Cth), s 16BA
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- Cameron v R (2002) 209 CLR 339
- Commonwealth DPP v Thomas and Wu [2016] VSCA 237
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- DPP (Cth) v Walls [2014] VSCA 323
- Putman v R [2004] HCA 8
- R v Asplund; Asplund v R [2010] NSWCCA 316
- R v Costello [2011] QCA 39
- R v Engert (1995) 84 A Crim R 67
- R v Nahlous [2013] NSWCCA 90
- Rampley v R [2010] NSWCCA 293
- Western Australia v Collier (2007) 178 ACR 310