Citation: R v CR [2019] NSWDC 884
Court: District Court of New South Wales
Date: 3 December 2019
Judge(s): Wilson SC DCJ
Background
The offender, a man aged 53 at the time of sentence, appeared before the District Court on four principal charges relating to child abuse material. He had a prior conviction from 2013 for possessing child pornography, which resulted in a suspended sentence of six months imprisonment coupled with a good behaviour bond under s 12 of the Crimes (Sentencing Procedure) Act 1999.
The current offending arose in two distinct periods. First, police attended the offender's registered address in 2016 for a routine annual inspection under the Child Protection (Offenders Registration) Act 2000 and discovered child abuse material on an external hard drive. Second, separate charges related to offending involving two child victims between 2010 and 2013, during which the offender had used children under 14 years of age to produce child abuse material. Part of this earlier offending occurred while the offender was subject to the 2013 good behaviour bond.
The offender pleaded guilty, and the matter came before the court for sentencing. A Form 1 document attached an additional possession charge to one of the principal counts, requiring the court to take that further offence into account in determining the appropriate penalty.
Legal Issues
- Whether the standard non-parole period of six years for the s 91G(1)(a) offences (using a child under 14 to produce child abuse material) should be applied, given the offender's subjective circumstances and early guilty plea
- How the Form 1 charge should be treated in the sentencing exercise
- The appropriate weight to be given to aggravating factors, including that the offending occurred while the offender was subject to a good behaviour bond
- How the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 applied to serious child sexual abuse material offences
- Whether an aggregate sentence was appropriate, and how indicative sentences should be structured across the multiple charges
Decision
Wilson SC DCJ convicted the offender on all four principal charges and revoked the 2013 good behaviour bond. His Honour applied a 25% discount to each indicative sentence to reflect the early guilty plea.
On the standard non-parole period, the court followed the approach confirmed in Tepania v R and the High Court's guidance in Muldrock v The Queen. The standard non-parole period of six years is a guidepost for offences at the midpoint of objective seriousness, but it does not automatically apply. Taking into account the subjective circumstances and the early plea, His Honour determined the standard non-parole periods should not be mechanically imposed. The sentencing exercise remained intuitive and holistic rather than mathematical.
The court treated the offending while on the bond as a statutory aggravating factor under the Crimes (Sentencing Procedure) Act. The Form 1 possession charge was certified and taken into account by giving additional weight to personal deterrence and retribution in respect of the principal sequence to which it attached.
His Honour imposed an aggregate sentence, providing indicative terms for each matter before arriving at a combined term. The indicative sentences ranged from six months for the revoked bond matter, two years for the 2016 possession offence with the Form 1 charge, three and four years respectively for the two charges involving child victims, and three years for the associated possession charge.
Orders Made
- The offender was convicted of four offences under ss 91G(1)(a) and 91H(2) of the Crimes Act 1900
- The s 12 good behaviour bond (imposed 15 July 2013) was revoked
- An aggregate term of imprisonment of eight years was imposed, commencing 9 March 2017 and expiring 8 March 2025
- An aggregate non-parole period of five years was imposed, commencing 9 March 2017 and expiring 8 March 2022, at which point the offender would be eligible to be considered for release on parole by the Parole Authority
Key Takeaways
- The District Court confirmed that standard non-parole periods for serious child abuse material offences are a guide rather than a mandatory outcome. Even where an offence sits at the midpoint of objective seriousness, subjective factors and an early guilty plea may warrant departing from that benchmark.
- Under the sentencing framework in Muldrock, the process of applying a standard non-parole period is not a percentage calculation. The court must engage in an intuitive, synthesising exercise that weighs both objective and subjective considerations together.
- Offending committed while subject to a court-ordered bond is a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999, and the court treated it as such even though it had not originally been identified in the Crown's sentence summary.
- A Form 1 document attaching an additional charge does not result in a separate sentence. Instead, it increases the penalty for the principal offence by heightening the weight given to personal deterrence and retribution within the overall sentencing exercise.
- Where an offender faces multiple serious charges arising from distinct episodes, an aggregate sentence provides a coherent overall term while indicative sentences for each charge preserve transparency in the court's reasoning.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 91G, 91H
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 12, 21A
- Child Protection (Offenders Registration) Act 2000 (NSW)
Cases
- Muldrock v The Queen (2011) 244 CLR 120
- Markarian v The Queen (2005) 228 CLR 357
- Tepania v R [2018] NSWCCA 247
- Bugmy v The Queen (2013) 249 CLR 571
- R v Henry (1999) 46 NSWLR 346
- R v Hutchinson [2018] NSWCCA 152
- Lee v R [2019] NSWCCA 15
- Minehan v R [2010] NSWCCA 140
- Dipangkear v R [2010] NSWCCA 156
- Benitez v R [2006] NSWCCA 21