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District Court 28 September 2018

R v Saville

[2018] NSWDC 448

Sexual offences
CRIME SENTENCE GUILTY PLEA USING CARRIAGE SERVICE TO GROOM POSSESS CHILD ABUSE MATERIAL

Citation: R v Saville [2018] NSWDC 448
Court: District Court of New South Wales
Date: 28 September 2018
Judge: Wilson SC DCJ

Background

The offender, a 38-year-old man, appeared before the District Court for sentencing after pleading guilty to two offences. The first was using a carriage service (KIK Messenger) to groom a person identifying as a 14-year-old female for sexual activity, contrary to the Criminal Code 1995 (Cth). The second was possessing child abuse material, a State offence under the Crimes Act 1900 (NSW).

The conduct occurred over a period from 4 January to 25 February 2016. The offender engaged in explicit sexual conversations with the online account, repeatedly requested intimate photographs, and persistently sought to arrange an in-person meeting. Police arrested him on 26 February 2016 and forensically examined two mobile phones that confirmed the extent of the conduct.

The offender had been on bail for most of the period since his arrest, apart from an initial brief weekend in custody. He pleaded guilty on 14 March 2017 when committed to the District Court, which the sentencing judge treated as an early plea.

  • What sentence appropriately reflected the objective seriousness of online grooming of a person under 16 under the Criminal Code 1995 (Cth)?
  • What weight should be given to the early guilty plea in calculating discounts on each charge?
  • How should the Commonwealth and State sentences be structured, including the degree of concurrency?
  • Whether the statutory ratio for the non-parole period on the State charge required adjustment.

Decision

Wilson SC DCJ treated the maximum penalties (12 years for the Commonwealth grooming offence, 10 years for the State child abuse material offence) as the relevant legislative benchmark for assessing objective seriousness. The Court reached sentences it regarded as just in the particular circumstances, having regard to the agreed facts, expert psychological and psychiatric reports, and comparable cases tendered by the Crown.

A discount of 20% was applied to the Commonwealth charge and 25% to the State charge, both reflecting the utilitarian value of the early guilty plea. The slightly higher discount on the State charge appears to have reflected the stage at which that plea was entered in those proceedings.

The Court declined to impose an aggregate sentence but ordered partial concurrency between the two sentences to avoid a result that would be crushing or disproportionate overall. The non-parole period on the State charge was adjusted from the otherwise applicable statutory ratio.

Both sentences were backdated to commence on 25 September 2018, with the total effective period of imprisonment calculated at 24 months and a non-parole period of 17 months. The Court directed that expert reports accompany the offender's warrant of commitment to the correctional facility.

Orders Made

  • Charge 1 (Commonwealth): Use carriage service to groom person under 16. Head sentence of 30 months, reduced by 20% discount to 24 months. Non-recognisance release period of 16 months, with the offender to enter a recognisance of $100 to be of good behaviour for 12 months. Sentence commenced 25 September 2018; entitlement to release on 24 January 2020; head sentence expires 24 September 2020.
  • Charge 2 (State): Possess child abuse material. Head sentence of 28 months, reduced by 25% discount to 21 months. Non-parole period (adjusted from statutory ratio) of 14 months. Sentence to commence 25 December 2018; non-parole period expires 24 February 2020; head sentence expires 24 September 2020.
  • Total effective sentence: 24 months imprisonment with a non-parole period of 17 months.
  • Expert reports of Dr Ahmed and Dr Nisbet directed to accompany the offender's warrant of commitment.

Key Takeaways

  • The District Court applied separate guilty plea discounts to each charge (20% for the Commonwealth offence, 25% for the State offence), reflecting an assessment of the utilitarian value of each plea at the stage at which it was entered.
  • Partial concurrency between Commonwealth and State sentences was ordered to ensure the total custodial outcome remained proportionate, even though the Court declined to impose an aggregate sentence.
  • Where the statutory non-parole period ratio would produce a disproportionate result, the sentencing court has discretion to adjust it, as occurred here with the State charge.
  • Persistent online contact with a person identifying as 14 years old, combined with repeated requests for sexual images and attempts to arrange a physical meeting, constituted conduct of sufficient seriousness to warrant immediate full-time custody.
  • Expert psychological and psychiatric material was considered in mitigation and the Court ordered those reports to accompany the offender's custodial paperwork, reflecting their ongoing relevance to his management in custody.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 474.27(1) (using carriage service to groom a person under 16)
- Crimes Act 1900 (NSW), s 91H(2) (possessing child abuse material)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Asplund [2010] NSWCCA 316
- R v Henry (1999) 46 NSWLR 346
- R v Valentini (1989) 46 A Crim R 23