Citation: R v Turner [2019] NSWDC 206
Court: District Court of New South Wales
Date: 29 May 2019
Judge: Lerve DCJ
Background
The offender, a 35-year-old man, pleaded guilty to one count of using a carriage service to transmit indecent material to a person under 16 years of age, contrary to s 474.27A(1) of the Crimes Act 1914 (Cth). The offence occurred on 8 September 2018 in Narrandera, New South Wales. The victim was a 15-year-old girl, the daughter of the offender's father's next-door neighbour.
In the early hours of the morning, the offender used Facebook Messenger to send the victim an explicit video file depicting a male masturbating to ejaculation, accompanied by a message asking whether the victim would perform a sexual act. The victim and the offender were not Facebook friends, and the victim was not notified of the contact. The offender was well aware of the victim's age.
The victim did not see the message herself. A classmate at school discovered it approximately ten days later, watched a portion of the video, and then showed it to the victim. Both girls were 15 at the time.
Legal Issues
- What discount, if any, should the offender receive for his early guilty plea to a Commonwealth offence, following the NSW Court of Criminal Appeal's decision in Xiao v R [2018] NSWCCA 4?
- Where on the range of seriousness did this offending fall, having regard to the relevant sentencing factors for this type of offence?
- Whether the sentence should include a component of full-time custody, or whether a non-custodial order was appropriate.
Decision
Guilty plea discount: His Honour applied the approach confirmed in Xiao v R, which held that a sentencing judge is entitled to take the utilitarian value of a guilty plea into account when sentencing for Commonwealth offences under s 16A of the Crimes Act 1914 (Cth). The earlier line of authority in Tyler and Chalmers and related cases, which had restricted this approach, was identified in Xiao as no longer to be followed. Because the offender indicated his plea at the earliest opportunity, a 25% discount was applied.
Seriousness of the offending: The court assessed the offending as falling well within the mid-range of seriousness. Factors weighing in that assessment included the highly explicit nature of the video (depicting masturbation to ejaculation), the offender's deliberate conduct in sourcing and sending the material, his clear awareness of the victim's age, the 20-year age gap between them, and the fact that a second child was inadvertently exposed to the material. The court accepted that the victim being 15 placed the offending towards the upper end of the relevant age range, but noted this made the conduct no less serious. His Honour declined to characterise the communication as grooming behaviour, given it was a single message, but acknowledged an obvious sexual motive.
Custodial component: The court determined that a sentence involving a period of full-time custody was required, citing the nature of the offending and the need for general deterrence. The offender's criminal history, which included convictions for intimidation, assault police, and resist police, as well as the fact that the offending occurred only 15 days after he had been released on bonds following a breach proceeding, meant he was not entitled to particular leniency. His Honour adopted a starting point of 18 months' imprisonment, reduced by 25% to arrive at a total sentence of 12 months.
Orders Made
- The offender was convicted of the offence of using a carriage service to transmit indecent material to a person under 16 years of age.
- Sentenced to a total term of 12 months' imprisonment, commencing 29 May 2019 and expiring 28 May 2020.
- Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), after serving four months in actual custody, the offender was to be released on a recognizance of $500 for the remaining eight months.
- The recognizance was conditioned on the offender being of good behaviour and accepting the supervision and guidance of the NSW Department of Community Corrections.
Key Takeaways
- The District Court confirmed the application of Xiao v R [2018] NSWCCA 4 to Commonwealth sentencing, holding that the utilitarian value of an early guilty plea justifies a numerical discount (here, 25%), regardless of whether contrition or remorse is separately established.
- A conviction under s 474.27A(1) of the Crimes Act 1914 (Cth) carries a maximum of seven years' imprisonment; offending assessed at the mid-range of seriousness resulted in a total sentence of 12 months after discount.
- Relevant factors for assessing the seriousness of this type of offence include the explicitness of the material, the offender's deliberateness, the age differential and the offender's knowledge of the victim's age, the nature of their relationship, the number of communications, and whether the recipient was actually a child.
- The court treated the incidental exposure of a second child to the material as a further aggravating circumstance when assessing the overall gravity of the offending.
- Under s 20(1)(b) of the Crimes Act 1914 (Cth), a sentencing court may structure a Commonwealth imprisonment term so that part is served in custody and the remainder is served on a recognizance release order, allowing for supervision by Community Corrections.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1914 (Cth), ss 16A, 20(1)(b), 474.27A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(j)
Cases:
- Xiao v R [2018] NSWCCA 4
- Cameron v The Queen (2002) 209 CLR 339
- R v Tyler and Chalmers [2007] NSWCCA 247
- R v Lee [2012] NSWCCA 123
- R v Aniezue [2016] ACTSC 82
- R v Jones (unreported, NSWCCA, 30 June 1994)
- R v Wallace [2007] NSWCCA 63
- R v AD [2008] NSWCCA 289
- R v Tuala [2015] NSWCCA 8
- R v De Leeuw [2015] NSWCCA 183
- Kristensen v R [2018] NSWCCA 189
- Whybrow v R [2008] NSWCCA 2
- R v Daetz (2003) 139 A Crim R 398