Citation: R v WB [2019] NSWDC 898
Court: District Court of New South Wales
Date: 28 November 2019
Judge(s): Wilson SC DCJ
Background
The offender was a registered person under the Child Protection (Offenders Registration) Act 2000 (NSW), having been placed on the register in December 2012 following earlier offending involving children. Between March and June 2018, he used his mobile phone to access a Russian-based image-sharing website containing child pornography material, accessing approximately 26 files depicting an estimated 20 to 30 individual victims. The material fell within category 2 of the Interpol Baseline Categorisation System, depicting children in sexual poses, including images of genital and breast areas.
On two separate occasions, the offender failed to report his internet usage details to police as required by the registration regime, signing a declaration that he had no internet usage to report. When police attended his home for a compliance inspection in March 2018, they observed a child pornography image open on his phone's browser. He was arrested in June 2018 and has been in custody for approximately 391 days at the time of sentencing.
The offender pleaded guilty at an early stage in the Central Local Court and was committed for sentence. He gave evidence before the District Court at the sentencing hearing, which the sentencing judge expressly noted as a factor that influenced the shape of the final sentence.
Legal Issues
- What sentence was appropriate for two counts of failing to comply with reporting obligations under s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW), each carrying a maximum of five years' imprisonment.
- What sentence was appropriate for one count of using a carriage service to access child pornography under s 474.19(1) of the Criminal Code Act 1995 (Cth), carrying a maximum of 15 years' imprisonment.
- What discount should be applied to reflect the utilitarian value of the early guilty pleas.
- What conditions should attach to any recognisance release order, including treatment obligations.
Decision
Wilson SC DCJ imposed a sentence structured around a recognisance release order under s 20(1)(b) of the Crimes Act 1914 (Cth), with the offender to be released on strict supervision on 27 December 2019. The judge applied a 25 percent reduction to the otherwise intended sentence to reflect the dual utilitarian benefits of the early guilty pleas, namely avoiding a contested hearing and facilitating the administration of justice.
The judge expressly acknowledged that the offender's decision to give evidence and engage honestly with the Court was a further mitigating factor. The judgment states that, absent that evidence, a harsher sentence would have been imposed. The sentencing remarks reflect an attempt to craft conditions that would give the offender the best prospect of not reoffending.
The offender's pre-sentence custody of approximately 391 days was taken into account. Strict conditions were imposed on release, including supervision for the duration of the recognisance release order, mandatory engagement with community-based sex offender treatment programs, and participation in maintenance groups for offenders who had completed such programs.
Orders Made
- The offender was sentenced and ordered to be released on a recognisance release order under s 20(1)(b) of the Crimes Act 1914 (Cth) on 27 December 2019, subject to strict supervision conditions.
- Conditions attached to the release order included: reporting to Community Corrections; not committing any offence; attending court if called upon; engaging with community-based sex offender treatment programs (low-moderate and moderate-high risk) through Community Services NSW; engaging in maintenance groups for offenders who have completed sex offender programs; obeying all treatment and therapy directions provided by Community Services NSW; and remaining subject to supervision for the duration of the order.
- Pursuant to s 23ZD of the Crimes Act 1914 (Cth), on the application of the Director of Public Prosecutions and with the offender's consent, a forfeiture order was made requiring the following item to be forfeited to the Commonwealth: a black Alcatel smart phone (exhibit X0003054058).
Key Takeaways
- A 25 percent sentence reduction was applied to reflect the utilitarian value of early guilty pleas in proceedings involving both State and Commonwealth offences, consistent with the dual benefits of avoiding a contested hearing and facilitating the administration of justice.
- Under the Child Protection (Offenders Registration) Act 2000 (NSW), a registered person's failure to disclose internet usage details to police constitutes a distinct breach of reporting obligations, separate from the underlying substantive offending.
- Giving evidence and engaging honestly with the sentencing court was treated as a meaningful mitigating factor, with the judge explicitly stating a harsher sentence would have followed had the offender not done so.
- Material falling within category 2 of the Interpol Baseline Categorisation System (or uncategorised material) can still satisfy the definition of child pornography under the Criminal Code Act 1995 (Cth) where it depicts persons under 18 in sexual poses that a reasonable person would regard as offensive.
- The District Court structured the sentence to include mandatory participation in community-based sex offender treatment and maintenance programs, reflecting the psychologist's recommendations and a focus on reducing the risk of further offending.
Legislation and Cases Referenced
Legislation:
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
- Criminal Code Act 1995 (Cth), s 474.19(1)
- Crimes Act 1914 (Cth), ss 16A, 20(1)(b), 23ZD
Cases:
- Minehan v R [2010] NSWCCA 140
- R v Hutchinson [2018] NSWCCA 152
- R v Porte [2015] NSWCCA 174