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District Court 6 March 2020

R v Hare

[2020] NSWDC 127

Sexual offences

Citation: R v Hare [2020] NSWDC 127
Court: District Court of New South Wales
Date: 6 March 2020
Judge(s): Grant DCJ

Background

The offender, a man aged 29 to 30 at the time of the offending, pleaded guilty to multiple federal offences of using a carriage service to groom a person under 16 for sexual activity. The communications involved two targets: one (CF) with whom sporadic messaging occurred over approximately six months, and another (PM) with whom there was a single conversation. CF was in fact an undercover police officer posing as a 14-year-old.

The offender sent explicit images of himself to both targets and engaged in sexually explicit messaging. He had no prior criminal record and had been diagnosed with autism spectrum disorder (ASD) without intellectual impairment, a condition that had never previously been formally identified or treated.

The central sentencing dispute concerned how the offender's ASD diagnosis should affect the assessment of his moral culpability, the role of general deterrence, and the appropriate sentence to impose.

Legal Issues

  • Whether the offender's ASD diagnosis reduced his moral culpability for the offending
  • Whether the offender was an appropriate vehicle for general deterrence given his diagnosis
  • The objective seriousness of the offending, including whether the target being an undercover officer affected that assessment
  • The appropriate sentence, including whether a term of imprisonment was warranted and whether the offender could be released on a recognisance order

Decision

Objective seriousness and the undercover officer point:
The court accepted that the offending carried real objective seriousness and was not spontaneous or impulsive (at [24]). The fact that CF was an undercover police officer did not reduce the objective gravity of the offending (at [18]). However, the court distinguished the facts from cases involving determined, predatory, and financially manipulative conduct, finding the messaging with CF was sporadic rather than prolonged and persistent, and that there was only a single conversation with PM (at [21]).

Effect of ASD on moral culpability:
The court accepted Dr Pulman's opinion that the offender's ASD deficits materially contributed to his offending (at [9]). Although the offender was aged 29 to 30, expert and maternal evidence indicated he was emotionally functioning at around 12 years of age (at [23]). The explicit and indecent language he used was consistent with ASD-related deficits in understanding social rules and appropriate sexual conduct (at [21]). The relationship with the target was not manipulative, and the prospect of any physical meeting was, on the court's assessment, fantasy rather than a pursued goal (at [23]). As a result, the offender's moral culpability was reduced, the need for denunciation and punishment was correspondingly reduced, and he was found to be an inappropriate vehicle for general deterrence (at [9]).

Plea and rehabilitation:
The early guilty plea, entered before the Deniliquin Local Court on 10 December 2019, attracted a 25 percent discount (at [28]). The court found genuine contrition and remorse, consistent with the record of interview and the plea (at [27]). The court also found good prospects of rehabilitation, noting the offender had no criminal history, had shown insight, and had not previously had access to ASD-specific therapy despite his condition (at [34]-[37]).

Sentencing outcome:
The court imposed an aggregate sentence of 15 months imprisonment but released the offender immediately on a recognisance order. It was satisfied that the combination of reduced moral culpability, the ASD diagnosis, the early plea, genuine remorse, and good rehabilitation prospects, taken together with the objective seriousness of the offences, produced this outcome. The court was careful to note that subjective circumstances should not overshadow the objective gravity of the conduct (at [38]).

Orders Made

  • Aggregate sentence of 15 months imprisonment imposed
  • Indicative sentence for sequence 2 (sending explicit images to PM): 3 months imprisonment (25% discount applied; pre-discount term was 4 months)
  • Indicative sentence for sequence 3 (grooming conduct with CF): 13 months imprisonment (25% discount applied; pre-discount term was 18 months)
  • Indicative sentence for sequence 4 (sending an explicit image to CF on 10 September 2018): 3 months imprisonment (25% discount applied; pre-discount term was 4 months)
  • Offender released forthwith on a recognisance order, with a security of $500, to be of good behaviour for 2 years
  • Condition imposed requiring the offender to attend for assessment at Autism Spectrum Australia in Sydney and to comply with their lawful directions during the bond period

Key Takeaways

  • A diagnosis of ASD without intellectual impairment can reduce an offender's moral culpability for child grooming offences where expert evidence establishes the condition materially contributed to the conduct, with corresponding reductions in the weight given to denunciation and general deterrence (at [9], [33]).

  • The District Court confirmed that the use of an undercover police officer as the target does not diminish the objective seriousness of a carriage service grooming offence (at [18]).

  • Where an offender is emotionally functioning well below their chronological age due to ASD, and the evidence indicates the prospect of physical contact was fantasy rather than a pursued objective, a court may find the offending lacks the manipulative, predatory character that attracts the heaviest sentences in this category (at [21], [23]).

  • Under the federal sentencing framework, an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 is available for federal offences dealt with on indictment in the District Court, picked up via s 68(1) of the Judiciary Act 1903 (Cth), with indicative sentences required for each component charge (at [45]).

  • Sentencing courts retain a broad discretion: even where imprisonment is warranted for serious federal offending, individualised justice may permit immediate release on a recognisance order where the combination of reduced culpability, ASD-related factors, early plea, and rehabilitation prospects so warrants, provided the sentence is proportionate to the offending (at [40], [44]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914
- Crimes (Sentencing Procedure) Act 1999
- Judiciary Act 1903 (Commonwealth)

Cases
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Director of Public Prosecutions (Cth) v Walls [2014] VSCA 323
- DPP (Commonwealth) v De La Rosa [2010] NSWCCA 94
- Markarian v The Queen 215 ALR 213
- Parente v R [2017] NSWCCA 285
- Pearce v The Queen 194 CLR 610
- R v Asplund [2010] NSWCCA 316
- R v Dood (1991) 57 A Crim R 349
- R v Gajjar (2008) 192 A Crim R 76
- R v Hemsley [2004] NSWCCA 228
- R v Holder; R v Johnson (1983) 3 NSWLR 245 at 260
- R v Moon [2000] NSWCCA 534
- The Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74
- Yardley v Betts (1979) 1 A Crim R 329