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District Court 5 April 2019

R v Forrest

[2019] NSWDC 949

Sexual offences
CRIME SENTENCE BREACH CALL COMMONWEALTH AND STATE OFFENCES POSSESS CHILD ABUSE MATERIAL INTELLECTUAL COGNITIVE DISABILITY

Citation: R v Forrest [2019] NSWDC 949
Court: District Court of New South Wales
Date: 5 April 2019
Judge: Norrish QC DCJ

Background

The offender had originally been sentenced on 7 April 2017 for multiple Commonwealth offences and one State offence, all involving child abuse and child pornography material. Those offences included using a carriage service to transmit indecent and child pornography material, using a carriage service to procure a person under 16 for sexual activity, and possession of child abuse material under the Crimes Act 1900 (NSW). At the original sentencing, the court substantially reduced the weight given to general deterrence on account of the offender's intellectual and cognitive disability, placing him on various forms of conditional liberty including recognizances, recognizance release orders, and Intensive Correction Orders (ICOs) rather than immediate full-time custody.

In October 2017, while still subject to those orders, the offender was arrested at Jannali after police found child abuse material on his mobile phone. A subsequent electronic download of the phone revealed the offender had been using a messenger application to join and host chat groups for sharing links to cloud-based child abuse material. The material included images and videos categorised under the INTERPOL Baseline classification system, including content depicting sexual acts involving young boys.

The matter returned before Norrish QC DCJ for resentencing following the revocation of the original conditional liberty orders by the Parole Authority. The court was required to resentence across all counts, taking into account the time the offender had already spent on ICOs and in custody from 12 November 2018.

  • Whether the various forms of conditional liberty imposed in 2017 should be formally revoked and replaced with terms of imprisonment.
  • How to structure the new sentences to give appropriate credit for time already served under the original ICOs and in custody.
  • What weight to give to the offender's intellectual and cognitive disability in resentencing following a breach involving similar offending.
  • How to balance the protection of the community against the prospect of rehabilitation through intensive treatment in the community.

Decision

Norrish QC DCJ revoked all outstanding recognizances and ICOs and imposed terms of imprisonment across the seven counts. The sentences were structured to run partly concurrently, with several terms commencing from 12 November 2018 (the operative date of the Parole Authority's order) and the balance commencing from 11 May 2019. The court fixed non-parole periods designed to produce a prospective release date of approximately 11 November 2019.

The court acknowledged the difficulty of giving precise credit for time served under the original ICOs, but drew on the Parole Authority's own calculations as a guide. The judge noted that, read together, the Parole Authority appeared to have credited approximately 12 months for time spent serving the ICOs, and the court proceeded on that basis when fixing the new terms.

In maintaining its totality principle approach from the original sentencing, the court confirmed that, having regard to all counts together and to the offender's disabilities, no aggregate sentence greater than two years imprisonment was appropriate. The court noted this was a substantially reduced penalty compared to what would ordinarily follow from offending of this kind, and that the reduction was directly attributable to the offender's intellectual and cognitive disability.

The court expressed concern about the ongoing risk the offender presented to the community, particularly given his failure to acknowledge his paraphilic disorder and his commission of similar offences while on conditional liberty. The court structured the non-parole period to allow an earlier transition to the community so the offender could access an intensive treatment program, as recommended in a report by psychiatrist Dr O'Dea.

Orders Made

  • Count 1 (Commonwealth recognizance): recognizance revoked; six months imprisonment from 12 November 2018.
  • Count 2 (Commonwealth recognizance release order, original 18-month term): 18 months imprisonment from 12 November 2018, with release to coincide with the non-parole period applicable to other counts.
  • Count 3 (Commonwealth ICO, 18 months): ICO revoked; eight months imprisonment from 12 November 2018.
  • Counts 4 and 5 (Commonwealth recognizance release orders): orders revoked; 18 months imprisonment from 11 May 2019, with release on recognizance after six months (prospective release approximately 11 November 2019).
  • Count 6 (Commonwealth ICO): treated on the same terms as Count 3.
  • Count 7 (State ICO, possession of child abuse material): addressed as part of the overall resentencing structure.
  • Overall: non-parole periods fixed to permit release to the community on or about 11 November 2019, earlier than might otherwise apply, to facilitate access to an appropriate treatment regime.

Key Takeaways

  • The District Court confirmed that an offender's intellectual and cognitive disability can justify a substantial reduction in the weight given to general deterrence, but that this consideration carries progressively less force where the offender reoffends in a similar manner while on conditional liberty.
  • Where an offender has served part of an Intensive Correction Order before being returned to custody, the sentencing court must give appropriate credit for that time, even where precise records are not available, and may draw on the Parole Authority's own calculations as a practical guide.
  • Under the totality principle, the court reassessed all counts together and maintained its original view that no aggregate sentence exceeding two years was warranted, reflecting the continued relevance of the offender's disabilities to the overall sentencing exercise.
  • Failing to acknowledge a paraphilic disorder was identified as a factor bearing on the risk the offender presents to the community, and the court structured the non-parole period specifically to facilitate earlier access to intensive community-based treatment.
  • Norrish QC DCJ's exchange with the offender on the record illustrates the court's approach to personal deterrence in cases involving cognitive disability: the court acknowledged the offender's difficulties while making plain that escalating custodial consequences would follow further offending, regardless of those difficulties, once community protection demands it.

Legislation and Cases Referenced

Legislation:
- Commonwealth Crimes Act 1914 (Cth), including ss 20(1)(b) and 20AB
- Crimes Act 1900 (NSW)

Cases:
- DPP (Cth) v De La Rosa [2010] NSWCCA 19
- R v Engert (1995) 84 A Crim R