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District Court 20 September 2017

R v DIEU, Jonathan

[2017] NSWDC 375

Sexual offences
CRIMINAL SENTENCE POSSESS CHILD ABUSE MATERIAL 19 YEAR OLD MALE NO PRIOR CRIMINAL OFFENCES LESSER WEIGHT TO GENERAL DETERRENCE

Citation: R v DIEU, Jonathan [2017] NSWDC 375
Court: District Court of New South Wales
Date: 20 September 2017
Judge(s): Judge S Norrish QC

Background

A 19-year-old male (the offender) faced sentence on two charges arising from conduct between late December 2014 and February 2016. The first charge was using a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years imprisonment. The second charge was possession of child abuse material on 9 February 2016, contrary to s 91H(2) of the Crimes Act 1900 (NSW), which carries a maximum of 10 years.

Police identified the offender after receiving information that his IP address had been used to access a website known to distribute child exploitation material. When officers attended his home to execute a search warrant, the offender immediately volunteered that he had videos and pictures on his laptop before the search commenced. Forensic analysis of the laptop revealed a downloads folder containing still images and video files categorised across multiple levels of the Child Exploitation Tracking Scale (CET Scale), including penetrative sexual activity involving children aged ten years and under.

The offender pleaded guilty at an early stage. He had no prior criminal history, and expert material indicated no diagnosed sexual pathology involving children. The court had before it two Community Corrections reports, character testimonials, and detailed written and oral submissions from both parties.

  • What weight should be given to general deterrence where there is a causal connection between the offender's mental state and the offending?
  • How should the sentencing court approach the principle of "totality" across the two offences?
  • What effect did delay in proceedings have on the sentence?
  • What discount applied for the early guilty plea?
  • Whether imprisonment was the appropriate sentencing disposition, and whether an Intensive Correction Order (ICO) was a suitable means of serving it.

Decision

The court found that no penalty other than imprisonment was appropriate, given the serious nature of the material accessed and possessed, which included images of children aged ten and under and content reaching Category 4 and Category 5 on the CET Scale. The offending spanned more than 13 months and involved multiple victims depicted across numerous files.

Despite the seriousness of the material, several mitigating factors were prominent. The offender was 19 at the time of the offending, had no prior criminal record, made immediate admissions to police, and pleaded guilty at the earliest opportunity. There was no evidence that he had disseminated the material beyond his own computer. Expert material indicated a low risk of reoffending and no entrenched sexual pathology directed at children.

The court accepted that there was some causal connection between the offender's mental state and the offending conduct. Consistent with the approach in cases such as R v Engert and KT v R, this reduced the weight ordinarily given to general deterrence, though it did not eliminate that consideration entirely. The court also took into account the effect of delay on the proceedings as a factor relevant to the sentence.

Applying the totality principle from Pearce v R and taking into account the full discount for the early guilty plea, the court determined that a sentence of no more than two years imprisonment was appropriate. Rather than imposing a fixed custodial term immediately, the court referred the offender for assessment as to his suitability for an Intensive Correction Order as the means by which the sentence would be served.

Orders Made

  • The offender was convicted of both offences.
  • A sentence of imprisonment of no more than two years was imposed.
  • The offender was referred for assessment as to suitability for an Intensive Correction Order under the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The offender was required to attend Liverpool Community Corrections Service before 5pm on 27 September 2017 to commence the assessment process.
  • Bail was continued on that condition.
  • The matter was adjourned to Friday 17 November 2017, not before 2pm, for the assessment report to be completed.
  • A forfeiture order was foreshadowed, to be made at the same time as final orders.

Key Takeaways

  • A causal connection between an offender's mental state and the commission of child pornography offences can reduce the weight given to general deterrence in sentencing, though it does not displace it altogether.

  • The District Court confirmed that the totality principle requires the overall criminality across multiple charges to be reflected proportionately in the combined sentence, rather than simply aggregating individual penalties.

  • Early and frank admissions to police, combined with an early guilty plea, can attract significant mitigation even in cases involving serious child exploitation material.

  • Where an offender is young, has no criminal history, poses a low assessed risk of reoffending, and has no identified sexual pathology, those factors can support a disposition that permits serving an imprisonment term by way of Intensive Correction Order rather than full-time custody.

  • Delay in proceedings is a recognised consideration in NSW sentencing, and the court took it into account alongside the other mitigating factors in arriving at the total sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(i)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Commonwealth Crimes Act 1914 (Cth)

Cases:
- Pearce v R (1998) 194 CLR 610
- Muldrock v R (2011) 244 CLR 120
- R v Engert (1995) 84 A Crim R 67
- KT v R [2008] NSWCCA 51
- DPP v De La Rosa (2010) NSWLR 194
- R v Henry (1999) 46 NSWLR 346
- Laycock v R [2017] NSWCCA 47
- Burbridge v R [2016] NSWCCA 128
- Iskander v R [2013] NSWCCA 235
- Miller v R [2015] NSWCCA 86
- Phanekum v R [2015] NSWCCA 295
- Linardon [2014] NSWCCA 247
- R v Leeuw [2015] NSWCCA 183
- R v Martin [2014] NSWCCA 283
- R v Booth [2009] NSWCCA 89
- R v BP [2010] NSWCCA 303
- R v Gent [2005] 162 A Crim R 29
- R v Minehan [2010] NSWCCA 140
- R v Guest [2014] VSCA 29
- R v Blackman and Walters [2001] NSWCCA 121