Citation: R v Cameron Cameron [2018] NSWDC 389
Court: District Court of New South Wales
Date: 13 December 2018
Judge(s): Mahony SC DCJ
Background
The offender, born in November 1976, was sentenced for one count of attempting to act as a client with a child in prostitution, contrary to s 91D(1)(b) of the Crimes Act 1900. The offending occurred between November 2017 and January 2018, when the offender used Facebook Messenger to send repeated messages to a 16-year-old girl in a government-run group home, offering her money and drugs in exchange for sexual services. A forensic examination of his mobile phone confirmed the nature and extent of those communications.
The victim had known the offender since she was aged 14 or 15. The offender was approximately 25 years her senior and was aware she was under 18. He admitted to police that he had engaged in oral sex with the victim in the preceding months, though he denied any exchange of money or drugs.
At the time of the offending, the offender was serving two Community Service Orders. Those orders were revoked following his arrest, and he was sentenced to 15 months imprisonment with an eight-month non-parole period commencing 26 January 2018. The present sentencing proceeded on 11 December 2018 at Nowra.
Legal Issues
- What was the appropriate level of objective seriousness for an attempted s 91D(1)(b) offence involving no physical contact and a 16-year-old victim?
- Whether a full-time custodial sentence was required, or whether a Community Corrections Order was available?
- How the principles of totality and proportionality should apply to fix the commencement date of any new sentence, given the existing custodial term?
- Whether special circumstances existed to vary the standard ratio between the head sentence and the non-parole period?
- How the offender's mental health diagnoses, substance abuse history, and plea of guilty bore on sentence?
Decision
Objective seriousness: The court assessed the offending as falling towards the lower end of the range for s 91D(1)(b) offences, noting that the conduct was an attempt only, involved no physical contact, and the victim was 16 years old at the relevant time. That said, the court emphasised the conduct still constituted serious offending (at [28]).
Emotional harm and remorse: The court rejected the submission that the emotional harm caused by the offence was not substantial. It observed that courts have long recognised the lasting emotional harm sexual offences cause to child victims, and that the absence of a Victim Impact Statement does not permit an inference of minimal impact under s 29(3) of the Crimes (Sentencing Procedure) Act 1999 (at [29]). The court also treated expressions of remorse relayed through a clinical psychologist, without sworn evidence from the offender, with caution (at [29]).
Custodial threshold and general deterrence: The court was satisfied the threshold for full-time custody under s 5 of the Crimes (Sentencing Procedure) Act 1999 had been crossed, rejecting the submission that a Community Corrections Order was appropriate (at [33]). However, the offender's diagnoses of Attention Deficit Disorder and Borderline Personality Disorder meant he was an inappropriate vehicle for general deterrence, consistent with the approach in DPP (Cth) v De La Rosa (at [30]).
Totality, special circumstances, and backdating: Applying the principles of totality and proportionality from Pearce v R, the court backdated the new sentence by two months to achieve a degree of concurrency with the existing term (at [33]). Special circumstances were found based on the offender's mental health and substance abuse history, warranting an equal split between the non-parole period and the balance of term (at [33]).
Orders Made
- The offender was convicted of attempt act as client with child in prostitution pursuant to s 91D(1)(b) of the Crimes Act 1900.
- Sentenced to 18 months imprisonment, comprising a non-parole period of 9 months commencing 25 July 2018 and expiring 24 April 2019, with a balance of term of 9 months commencing 25 April 2019 and expiring 24 January 2020.
- Parole eligibility date fixed at 24 April 2019.
- The court recommended that upon release to parole, Community Corrections implement the supervision plan outlined in the Sentencing Assessment Report, with a copy forwarded to the Department of Corrective Services.
Key Takeaways
- The District Court confirmed that an attempt under s 91D(1)(b) involving no physical contact and a 16-year-old victim may fall at the lower end of objective seriousness for that offence, though it remains serious offending warranting full-time custody (at [28], [33]).
- Absence of a Victim Impact Statement does not support any inference that an offence had little or no impact on a child victim, by operation of s 29(3) of the Crimes (Sentencing Procedure) Act 1999 (at [29]).
- Where an offender carries diagnosed mental health conditions such as Attention Deficit Disorder and Borderline Personality Disorder, the sentencing court may treat general deterrence as a reduced consideration in fixing the sentence, following DPP (Cth) v De La Rosa (at [30]).
- Expressions of remorse conveyed through a forensic psychologist's report, unsupported by sworn evidence from the offender, are to be approached with caution by the sentencing court (at [29]).
- Under the totality principle, an existing custodial sentence imposed on revocation of community orders is a relevant factor in fixing the commencement date and structure of a new sentence for related offending (at [32]-[33]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900
- Crimes (Sentencing Procedure) Act 1999
Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610