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District Court 22 November 2019

R v BH

[2019] NSWDC 924

Sexual offences
SENTENCING CHILD SEX OFFENCES COMMONWEALTH AND STATE OFFENCES

Citation: R v BH [2019] NSWDC 924
Court: District Court of New South Wales
Date: 22 November 2019
Judge(s): Payne DCJ

Background

The offender, a man aged 34 at the time of the offending and 38 at sentencing, faced two charges arising from conduct in late 2015. The first was a Commonwealth offence of using a carriage service to solicit child pornography material, contrary to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth), which carries a maximum penalty of 15 years imprisonment. The second was a State offence of possessing child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW), which carries a maximum of 10 years.

Police executed a search warrant at the offender's home in December 2015 and seized a laptop and mobile phone. Examination of those devices revealed conversations in which the offender solicited child pornography from another user and, separately, from an assumed online identity operated by police. Two category 1 images of a prepubescent girl were also found on the laptop.

The offender entered guilty pleas, but not at the earliest opportunity. The pleas were entered on the second occasion the matter was listed for trial, in August 2019, almost four years after the offending.

  • What utilitarian discount, if any, should be applied to reflect the guilty pleas given they were not entered at the earliest opportunity?
  • How should the objective seriousness of each offence be assessed?
  • What weight should be given to the offender's subjective circumstances, including the psychological report and the absence of a prior criminal record?
  • What sentences were appropriate for the Commonwealth offence and the State offence, including whether full-time custody was warranted?

Decision

Payne DCJ assessed the utilitarian value of the late guilty pleas at 10 percent, consistent with the approach in R v Thomson and Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1. The pleas were not entered at the first opportunity and the discount was limited accordingly.

On objective seriousness, the Court treated the Commonwealth offence as the more serious of the two, consistent with its higher maximum penalty. The solicitation involved multiple requests made to both a separate user and an assumed online identity operated by police. The State possession offence was assessed at the lower end of objective seriousness: two category 1 images depicting a clothed child with no sexual activity.

The offender had no prior criminal record in New South Wales and this favoured some leniency. However, the Court expressed concern that from the time of the offending in late 2015 until shortly before sentencing in late 2019, the offender had not sought any treatment or counselling. The only psychological assessment obtained was for the purpose of preparing a report for the sentencing proceedings. Payne DCJ accepted the diagnoses in the report on the balance of probabilities but found they did not significantly reduce the offender's moral culpability, and that general deterrence remained an important consideration.

For the Commonwealth offence, the Court arrived at a notional term of two years and ten months, reduced by 10 percent to approximately 30.6 months, rounded to two and a half years. Rather than impose full-time custody, the Court applied s 20(1)(b) of the Crimes Act 1914 (Cth) and released the offender on a recognizance, subject to conditions including two years of supervision by Community Corrections, psychological treatment, and five years of good behaviour. For the State offence, the Court imposed a two-year community correction order in lieu of imprisonment under s 8(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), including 300 hours of community service work, rehabilitation and treatment conditions, and supervision.

Orders Made

Commonwealth offence (s 474.19(1)(a)(iv) Criminal Code 1995 (Cth)):
- Convicted and sentenced to two and a half years imprisonment, with the offender released forthwith on a recognizance of $500 under s 20(1)(b) of the Crimes Act 1914 (Cth), subject to:
- Attendance at Community Corrections before the following Tuesday and acceptance of supervision for two years, including psychological counselling and treatment in accordance with the mental health care plan in the psychologist's report
- Good behaviour for five years from the date of sentence (expiring 21 November 2024)

State offence (s 91H(2) Crimes Act 1900 (NSW)):
- Community correction order for two years under s 8(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), with standard conditions and the following additional conditions:
- 300 hours of community service work
- Participation in a rehabilitation program or receipt of treatment as directed
- Supervision by a Community Corrections officer

Forfeiture orders (pursuant to s 23ZD Crimes Act 1914 (Cth)):
- HP Pavilion Laptop Computer (Police Exhibit X0002768332) forfeited to the Commonwealth
- HTC Mobile Phone (Police Exhibit X0002768331) forfeited to the Commonwealth

A copy of the psychological report was directed to be provided to Community Corrections.

Key Takeaways

  • A guilty plea entered on the second occasion a trial is listed, rather than at the earliest opportunity, attracted only a 10 percent utilitarian discount, consistent with established NSW sentencing principles from Thomson and Houlton and Borkowski.
  • Where an offender charged with child sex offences had taken no steps to seek treatment or counselling from the time of the offending until shortly before sentencing, the District Court treated this as a significant consideration weighing against any substantial reduction for rehabilitation prospects.
  • Accepted psychological diagnoses do not automatically translate into a meaningful reduction in moral culpability; Payne DCJ found the diagnoses relevant but insufficient to substantially diminish the objective seriousness of the offending.
  • The Commonwealth carriage service offence was treated as more serious than the State possession offence, reflecting the higher statutory maximum, the nature of the solicitation conduct, and the fact that the solicitation was not limited to the single interaction with an assumed online identity.
  • Under s 20(1)(b) of the Crimes Act 1914 (Cth), a court may decline to impose full-time custody for a Commonwealth offence even where the notional sentence exceeds two years, where appropriate conditions can be imposed by way of recognizance.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 474.19(1)(a)(iv)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), s 20(1)(b); s 23ZD
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8(1)

Cases:
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Borkowski (2009) 195 A Crim R 1