Citation: [2019] NSWDC 892
Court: District Court of New South Wales
Date: 27 September 2019
Judge: Judge W Hunt
Background
The offender, a registered child protection offender, was released on parole in February 2018 after serving a sentence for earlier, more serious offences of a similar kind. Within one week of his release, he began reoffending. He was subject to ongoing reporting obligations under the child protection registration regime, which required him to disclose details of online accounts and aliases to police.
In March 2018, police conducted a routine home visit and, with the offender's consent, examined his mobile phone. The examination revealed undisclosed online accounts, downloaded videos and images of young girls in sexually suggestive poses, and evidence that the offender had asked a family member to create an account on his behalf using her details. The offender unlocked the device for police but was observed deleting items before handing it over.
The offender faced three charges: failing to comply with child protection registration reporting obligations (a State offence), using a carriage service to access child pornography (a Commonwealth offence), and possessing child abuse material (a State offence). All three offences were committed while the offender was on parole.
Legal Issues
- What sentence was appropriate across three offences committed concurrently on parole, spanning both State and Commonwealth legislation?
- How should the objective seriousness of the offending be assessed, particularly where the material fell at the lower end of the classification scale?
- What weight should be given to specific deterrence where the offender reoffended almost immediately after release on parole?
- What mitigating factors were relevant, including the offender's significant physical disability (hydrocephalus rendering him wheelchair-bound), depressive illness, social isolation, early guilty pleas, and co-operation with police?
- Did special circumstances exist to justify a departure from the standard ratio of non-parole period to head sentence?
Decision
Judge Hunt assessed the objective seriousness of the offences as lower than many matters of this type that come before the courts. The images and videos, though depicting prepubescent children in sexually suggestive poses with a focus on genital and anal regions, were clothed and fell within Interpol baseline categories 1 and 2. The number of files was comparatively small, and there was nothing approaching the volume or severity seen in leading cases such as R v Porte. The failing-to-comply offence was treated as falling towards the lower end of the range, though not the very bottom, given some covert conduct in using another person's identity to register an account.
Despite the lower objective seriousness, the court treated specific deterrence as a significant sentencing consideration. The offender had reoffended in substantially the same way as his previous, more serious offending, and had done so within days of being released to parole. That pattern indicated a pressing need to deter the individual offender from further like conduct.
The court accepted several mitigating factors. The offender had pleaded guilty, attracting a 25 per cent utilitarian discount. He had co-operated with police beyond what his pleas alone required, by providing passwords and device access. His severe physical condition (hydrocephalus, requiring a brain shunt, leaving him wheelchair-bound for approximately nine years), diagnosed depressive illness, and social isolation all bore on the sentence. The forensic psychologist's report was taken into account. The court found special circumstances existed, justifying a non-parole period shorter than the statutory norm for the State offences.
For the Commonwealth offence, the court applied section 17A of the Commonwealth Criminal Code, which treats imprisonment as a sentence of last resort, and had regard to all relevant purposes of sentencing under the applicable legislation.
Orders Made
- Sequence 1 (Fail to comply with reporting obligations, State): Convicted; indicative sentence of 9 months imprisonment (pre-discount: 12 months).
- Sequence 3 (Possess child abuse material, State): Convicted; indicative sentence of 14 months imprisonment (pre-discount: approximately 18.5 months).
- Aggregate State sentence (Sequences 1 and 3): 18 months imprisonment, commencing 17 June 2018, expiring 16 December 2019; non-parole period of 12 months (expired 16 June 2019); special circumstances found.
- Sequence 2 (Use carriage service to access child pornography, Commonwealth): Convicted; 12 months imprisonment commencing 17 April 2019; released after serving 6 months (on or around 16 October 2019) upon entering a Recognisance Release Order in the sum of $100 without security, conditional on good behaviour, supervision by Community Corrections including sex offender treatment, and reporting to Community Corrections at Gosford within 3 days of release.
Key Takeaways
- The District Court confirmed that general deterrence is an important consideration in child exploitation material offending, even where the objective seriousness falls at the lower end of the scale.
- Reoffending in a substantially similar manner within days of parole release significantly elevates the weight given to specific deterrence in the sentencing exercise.
- A 25 per cent utilitarian discount applied where the offender entered early guilty pleas; additional co-operation with police (providing passwords and device access) was treated as a mitigating factor beyond the pleas themselves.
- Serious physical disability, debilitating neurological illness, and social isolation were accepted as mitigating circumstances, though they did not displace the need for a custodial sentence given the pattern of reoffending.
- Under section 17A of the Commonwealth Criminal Code, imprisonment is a sentence of last resort for Commonwealth offences; the sentencing court must address this restraint expressly alongside the purposes of sentencing in the relevant State legislation when dealing with mixed State and Commonwealth charges in the same proceeding.
Legislation and Cases Referenced
Legislation
- Child Protection Offenders' Registration Act 2000 (NSW), s 17(1)
- Commonwealth Criminal Code Act 1995 (Cth), ss 474.19, 16A, 17A
- Crimes Act 1900 (NSW), s 91H
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A
Cases
- Callaghan v R [2006] NSWCCA 58
- R v Gray [2018] NSWCCA 241
- R v Porte [2015] NSWCCA 174
- R v Thompson v Houlton (2000) NSWLR 383
- Xiao v R [2018] NSWCCA 4