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District Court 28 February 2020

R v Huggett

[2020] NSWDC 117

Sexual offences

Citation: R v Huggett [2020] NSWDC 117
Court: District Court of New South Wales
Date: 28 February 2020
Judge(s): Bennett SC DCJ

Background

The offender faced three charges arising from the discovery of child exploitation material on his personal devices. The Commonwealth charge was using a carriage service to access child pornography, contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth). The two state charges were possession of child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), dealt with as related summary offences under s 166 of the Criminal Procedure Act 1986.

The proceedings had a prolonged and troubled history spanning approximately three years from the offender's first appearance in early 2017. The offender was at various points unrepresented, failed to appear, had his bail revoked, and repeatedly moved toward withdrawing his guilty pleas before ultimately abandoning those efforts. He finally re-entered guilty pleas to all charges on 5 February 2020.

The Crown submitted that the guilty pleas carried little utility given the extensive history of vacillation. The sentencing judge agreed, though he acknowledged the offender had ultimately adhered to the pleas and had entered fresh guilty pleas to the NSW charges on the final occasion.

  • What discount, if any, should apply to the guilty pleas given the offender's repeated vacillation and the protracted history of the proceedings?
  • How should the sentences for the Commonwealth and state offences be structured, including non-parole periods and aggregate sentencing for the NSW charges?
  • Whether forfeiture orders should be made in respect of the devices on which the material was found.

Decision

Bennett SC DCJ held that the pleas of guilty carried reduced utility. The offender had initially pleaded guilty in the Local Court in 2017, then repeatedly signalled an intention to withdraw those pleas in the District Court before abandoning that course. The sentencing judge applied a discount of only 10% to reflect the limited utility of the eventual pleas, drawing on the approach endorsed by the NSW Court of Criminal Appeal in Xiao v The Queen [2018] 96 NSWLR 1.

For the two NSW possession offences, the judge imposed an aggregate fixed term of two years' imprisonment commencing 20 February 2020 and expiring 19 February 2022. The individual component sentences, after the 10% discount, were 1 year, 9 months and 18 days for the material found on the mobile phone, and 1 year, 11 months and 10 days for the material found on the laptop.

For the Commonwealth offence, the judge imposed a sentence with a non-parole period of two years commencing 20 August 2020 and expiring 19 August 2022, followed by an eligible parole period of one year and four months expiring 19 December 2023. The Commonwealth sentence was structured to commence after the expiry of the NSW aggregate term, reflecting partial accumulation.

The overall custodial period across all sentences ran from 20 February 2020 to 19 August 2022, with the parole eligibility period extending to 19 December 2023. The total period of imprisonment was three years and ten months, including a custodial component of two years and six months. The judge also found special circumstances warranted a longer-than-usual parole period given the offender's rehabilitation needs.

Orders Made

  • Aggregate fixed term of two years' imprisonment for the two NSW possession offences, commencing 20 February 2020 and expiring 19 February 2022.
  • Sentence of imprisonment for the Commonwealth offence with a non-parole period of two years commencing 20 August 2020 and expiring 19 August 2022, with a parole eligibility period of one year and four months expiring 19 December 2023.
  • Forfeiture orders made pursuant to s 23ZD of the Crimes Act 1914 (Cth) in respect of the offender's Huawei mobile phone and Hewlett Packard laptop computer.

Key Takeaways

  • A guilty plea discount of only 10% was applied where an offender had engaged in repeated vacillation over several years, including failed attempts to withdraw pleas, even though the offender ultimately re-entered guilty pleas on the final occasion.
  • Under the approach confirmed in Xiao v The Queen, the sentencing court assessed the practical utility of a guilty plea against the full history of proceedings, not merely the fact that a plea was ultimately entered.
  • The District Court applied the aggregate sentencing provisions of the Crimes (Sentencing Procedure) Act 1999 to the two NSW summary-related offences, imposing a single fixed term rather than individual cumulative or concurrent sentences.
  • Where a state court sentences a federal offender alongside related state offences, the two sentencing regimes operate distinctly: the Commonwealth sentence required specification of a non-parole period separately from the NSW aggregate term.
  • Findings of contrition and remorse, and the identification of special circumstances, can support an extended parole period even where the discount for the guilty plea itself is substantially reduced.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(i)
- Crimes Act 1914 (Cth), s 23ZD
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Xiao v The Queen [2018] 96 NSWLR 1
- R v Henry [1999] NSWCCA 107
- R v Porte [2015] NSWCCA 174