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District Court 8 February 2019

R v Oliver Sunley

[2019] NSWDC 477

Sexual offences
CRIMINAL LAW SENTENCE

Citation: R v Oliver Sunley [2019] NSWDC 477
Court: District Court of New South Wales
Date: 8 February 2019
Judge: Judge W Hunt

Background

The offender appeared before the District Court for sentencing on two Commonwealth offences. The first was using a carriage service to solicit child pornography material, contrary to s 474.19(1) of the Commonwealth Criminal Code, which carries a maximum penalty of 15 years imprisonment. The second was using a carriage service to send indecent material to a person under 16 years of age, contrary to s 474.27A(1), which carries a maximum of seven years.

The offending occurred between November 2017 and March 2018. The offender communicated via Facebook with a police officer using an assumed online identity as a 13-year-old girl. Over four months, in four separate episodes, the offender sent graphic images and videos of himself, including explicit sexual content, despite the assumed online identity repeatedly indicating she was only 13. He also solicited naked photographs from the supposed child, though no images were ever returned.

The offender had entered an early guilty plea in the Wollongong Local Court and was committed to the District Court for sentence. He had not spent any time in custody prior to sentencing.

  • Whether the s 17A threshold under the Commonwealth Crimes Act was crossed, requiring the court to consider whether imprisonment was the only appropriate penalty
  • What weight to give the offender's early guilty plea by way of sentencing discount
  • How to assess the objective seriousness of each offence, including the absence of a real child victim
  • Whether, accepting that imprisonment was warranted, a recognizance release order was an appropriate disposition
  • What weight to give the offender's personal circumstances, psychological profile, and prospects for rehabilitation

Decision

Both parties agreed that the s 17A threshold had been crossed, meaning the court was satisfied that no non-custodial penalty adequately served all the purposes of sentencing. The court accepted that some period of imprisonment was inevitable. However, the prosecution also conceded that a recognizance release order (in effect, a supervised release arrangement) was an available and appropriate disposition in the circumstances.

The court assessed the objective seriousness of count 1 (solicitation) as towards the lower end of the range. There was no coercion, the request was unsuccessful, and the relevant conduct occurred on a single day over a matter of minutes. Count 2 (sending indecent material) was treated as a course of conduct over approximately four months, involving graphic content sent repeatedly without any affirmative response from the assumed online identity, and without any apparent request or perceived consent from her.

The court gave a 25% discount on sentence for the early guilty plea, consistent with the approach in Xiao v R [2018] NSWCCA 4. On the offender's personal circumstances, the court noted he was a young man who was psychologically isolated and had a history of drug use at the time of the offending. Psychological reports described him as a low to medium actuarial risk of reoffending, and the court accepted that his submission to treatment and stable employment and family circumstances indicated good prospects for rehabilitation.

The absence of a real child victim did not mitigate the offending. The court reaffirmed that offences of this type are designed to degrade and exploit children, and that intermediate appellate courts have emphasised the need for penalties that reflect harm to children and deter this class of conduct.

Orders Made

  • The offender was convicted of both offences
  • Imprisoned for 13 months commencing 8 February 2019, expiring 7 March 2020
  • Released forthwith on a recognizance release order under s 20(1)(b) of the Commonwealth Crimes Act
  • Conditions of the recognizance release order:
  • Personal undertaking in the sum of $1,000 (no surety required)
  • Good behaviour for a period of two years
  • Report to Wollongong Community Corrections within seven days of sentencing
  • Submit to all supervision and treatment as directed, which may include ongoing treatment by an identified treating psychologist or other appropriate professionals
  • The Registrar directed to provide copies of the psychological reports to Wollongong Community Corrections

Key Takeaways

  • The District Court confirmed that a recognizance release order remains an available sentencing disposition for Commonwealth child exploitation offences, even where the s 17A imprisonment threshold has been crossed, provided the objective seriousness and the offender's personal circumstances together support such a result.
  • Where an online sting operation involves a police officer posing as a minor, the absence of an actual child victim does not reduce the seriousness of the offending or operate as a mitigating factor.
  • A 25% discount for an early guilty plea was applied in accordance with the approach in Xiao v R [2018] NSWCCA 4, reflecting the assistance the plea gave to the administration of justice.
  • Objective seriousness for solicitation-type offending may be assessed at the lower end of the range where there is no coercion, the solicitation is unsuccessful, and the conduct is brief and isolated.
  • Offending driven by a desire for sexual gratification in the context of drug intoxication and psychological isolation, combined with low to medium actuarial reoffending risk and engagement with treatment, can support a finding of good rehabilitation prospects.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code, s 474.19(1) (use carriage service to solicit child pornography material)
- Commonwealth Criminal Code, s 474.27A(1) (use carriage service to send indecent material to a person under 16)
- Commonwealth Crimes Act, Pt 1B (sentencing framework for Commonwealth offenders)
- Commonwealth Crimes Act, s 16A(1), s 16A(2)(a), s 16A(2)(k), s 16A(12) (sentencing considerations)
- Commonwealth Crimes Act, s 17A (imprisonment as last resort for Commonwealth offenders)
- Commonwealth Crimes Act, s 20(1)(b) (recognizance release orders)

Cases
- Xiao v R [2018] NSWCCA 4 (guilty plea discounts)