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District Court 5 July 2018

R v TD

[2018] NSWDC 180

Sexual offences
POSSESS CHILD ABUSE MATERIAL

Citation: R v TD [2018] NSWDC 180
Court: District Court of New South Wales
Date: 5 July 2018
Judge(s): Mahony SC DCJ

Background

The offender, aged 21 at the time of the offences, initiated contact with a 14-year-old girl via Facebook in mid-March 2017. He was aware of her age from within the first couple of days of communication. Over the following weeks, the communications escalated from romantic messages to highly explicit sexual content, during which the offender pressured the victim into sending him 16 naked photographs of herself and one video, despite her expressing discomfort on multiple occasions.

Police attended the victim's home on 1 May 2017 and located the offender on the premises. The naked photographs were found on his phone, along with 648 pages of Facebook messages spanning approximately 32 days. The offender made full admissions and acknowledged he had intended to have sexual intercourse with the victim. He did not do so only because she was 14, he feared getting into trouble, and they were supervised by her mother during his visit.

Critically, the offender was on parole at the time of the offences, having been sentenced in August 2016 for a series of offences. He also had a prior conviction from 2014 for sexual intercourse with a person aged between 14 and 16 years. While in custody on remand following his arrest, he continued to contact the victim daily and requested she send further photographs and deposit money into his account.

Legal Issues

  • What was the appropriate objective seriousness of the grooming offence under s 66EB(3) of the Crimes Act 1900?
  • What was the appropriate objective seriousness of the child abuse material possession offence under s 91H(2) of the Crimes Act 1900?
  • Whether the offender's childhood mental health diagnoses reduced his moral culpability or lessened the weight to be given to deterrence?
  • Whether the offender's guilty plea, remorse, and youth warranted a reduction in sentence?
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and head sentence?
  • How the totality principle applied to structuring concurrent sentences for the two offences?

Decision

Issue 1: Objective seriousness of the grooming offence

His Honour accepted the Crown's submission that the grooming offence fell within the mid-range of objective seriousness for an offence under s 66EB(3) (at [72]). The key features driving that assessment included the volume of messaging (648 pages of Facebook messages over approximately 32 days), the rapid escalation to highly sexually explicit content, the deliberate manipulation of the victim to obtain nude photographs, the explicit descriptions of intended sexual acts, and the fact that the victim was a real child whose vulnerability was exploited (at [72]).

Issue 2: Objective seriousness of the child abuse material offence

The court found the possession offence fell just below the mid-range of objective seriousness (at [73]). His Honour noted that while the material was classified as Category 2 under the Interpol Baseline Categorisation, and there was no dissemination or network involvement, the absence of those aggravating features did not reduce the gravity of the offence. The material still involved the sexual exploitation of a young child (at [73]).

Issue 3: Mental health diagnoses

The offender had been diagnosed as a child with Asperger's Syndrome, Tourette's Disorder, and ADHD, among other conditions. The court found the evidence tendered was significantly dated and contained no expert opinion on how those conditions affected the offender at the time of the offending or his current moral culpability (at [77]). His participation in pro-social activities, including representative sport and Air Force Cadets, further diminished the weight of those submissions. Accordingly, no finding was made that his moral culpability was reduced. The court accepted the possibility, consistent with DPP (Cth) v De La Rosa, that his conditions might reduce the weight of general deterrence, but concluded this carried limited force on the facts (at [77]).

Issue 4: Guilty plea, remorse, and youth

The offender received a 25 percent discount for his early guilty plea entered in the Local Court (at [76]). No further discount was allowed for remorse. His post-offending conduct of requesting photographs and money from the victim while in custody on remand demonstrated an absence of remorse (at [76]). His belated expression of insight at the sentence hearing, and his sworn evidence that he did not intend to continue the relationship with the victim, carried no weight given he had not communicated that intention to the victim or her mother (at [76]). His youth, at 22 years, was taken into account as a mitigating consideration (at [77]).

Issue 5: Special circumstances

His Honour found special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act (at [78]). The offender's youth and his need for rehabilitation in relation to sexual offending and his mental health issues warranted an extended period of supervised conditional release. The court noted that previous courses addressing anger management and risk of re-offending had been unsuccessful, making a guarded assessment of his rehabilitation prospects necessary (at [78]).

Issue 6: Totality and sentence structure

Applying the totality principle, the court found the child abuse material offence was subsumed within the overall criminality of the grooming offence, as both arose from a single course of unlawful conduct over three months (at [79]). Concurrent sentences were therefore imposed. His Honour was satisfied that no sentence other than full-time imprisonment was appropriate (at [79]).

Orders Made

  • Convicted of grooming a child for unlawful sexual activity under s 66EB(3) of the Crimes Act 1900: sentenced to 3 years imprisonment with a non-parole period of 2 years, commencing 25 August 2017 and terminating 24 August 2019; balance of term of 1 year terminating 24 August 2020.
  • Convicted of possessing child abuse material under s 91H(2) of the Crimes Act 1900: sentenced to a fixed term of 12 months imprisonment commencing 25 August 2017 and terminating 24 August 2018.
  • Both sentences to be served concurrently.
  • Parole eligibility date: 24 August 2019.

Key Takeaways

  • The District Court confirmed that the mid-range of objective seriousness for a grooming offence under s 66EB(3) can be reached where offending involves sustained and manipulative online contact with an actual child, a high volume of explicit communications, and deliberate pressure to obtain nude images, even where no physical sexual contact occurs (at [72]).

  • Category 2 child abuse material under the Interpol Baseline Categorisation does not, of itself, place an offence at the low end of seriousness: the court treated such material as involving real sexual exploitation of a child and assessed the offence just below the mid-range (at [73]).

  • Where mental health evidence tendered at sentencing is significantly dated, lacks any expert opinion on the offender's current condition or its nexus to the offending, and is inconsistent with evidence of active participation in community activities, courts may give it little weight in assessing moral culpability or the relevance of deterrence (at [77]).

  • Post-arrest conduct, including contacting the victim from custody to request further photographs and money, can negate a claim to remorse and preclude any sentencing discount beyond the utilitarian value of a guilty plea (at [76]).

  • Under the totality principle, where possession of child abuse material arises directly from and is subsumed within a grooming offence that forms a single course of criminality, concurrent sentences may be appropriate to reflect the overall criminality without double punishment (at [79]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 Crimes (Sentencing Procedure) Act 1987 Criminal Code 1995 (Cth)

Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194 Efthimiadis v R [2013] NSWCCA 276 R v Asplund [2010] NSWCCA 316 R v Cahyadi [2007] NSWCCA 1 R v De Leeuw [2015] NSWCCA 183 R v Fuller [2010] NSWCCA 192 R v JF [2017] NSWCCA 217 R v MMK (2006) 164 ACrimR 481 R v Porte [2015] NSWCCA 174 R (Cth) v Poynder [2007] NSWCCA 157 R v Wilkinson (No. 5) [2009] NSWSC 432 TM v R [2018] NSWCCA 88