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District Court 13 March 2020

R v Purves (No 2)

[2020] NSWDC 211

Sexual offences

Citation: R v Purves (No 2) [2020] NSWDC 211
Court: District Court of New South Wales
Date: 13 March 2020
Judge: M L Williams SC DCJ

Background

The offender, aged 40 at the time of the conduct, communicated over Skype with a woman in the Philippines across a three-week period in January and February 2017. Using the platform, he paid money via Western Union and directed the woman to cause female children aged six, seven, nine, and twelve years to engage in sexual activities on camera. He also received child abuse material in the form of photographs and video depicting those children.

The offender was charged with eight offences under the Criminal Code 1995 (Cth), including causing children to engage in sexual activity outside Australia, attempting to do the same, using a carriage service to solicit child pornography material, and doing an act in preparation for travelling overseas to engage in sexual intercourse with a child. He pleaded guilty to all eight counts at an early opportunity.

This was a re-sentencing hearing. The matter had been remitted by the Court of Criminal Appeal after a procedural error in the original 2018 sentencing: the requirements of s 16BA(1) of the Crimes Act 1914 (Cth), which govern the taking into account of schedule matters, had not been properly observed at that earlier hearing.

  • What aggregate sentence was appropriate across eight serious child sex offences committed via a carriage service against multiple overseas child victims?
  • What discount applied for the early guilty plea under Xiao v R (2018) 96 NSWLR 1?
  • How should the court assess objective seriousness, having regard to the s 16BA schedule matters and the nature of the offending?
  • What weight should the court give to subjective mitigating factors, including mental health, alcoholism, and a deprived childhood?
  • What was the appropriate non-parole period, having regard to rehabilitation prospects and the need for supervision on release?

Decision

The court characterised each offence as falling in the low-to-mid range of objective seriousness, with the exception of count 8 (preparation for overseas child sex offences), which was assessed as below mid-range. The court accepted that the offender's prospects of actually travelling to the Philippines at the relevant time were remote, given that his passport had been stolen and he lacked the funds to travel, which informed the lower assessment of that count.

A 25% discount was applied to each indicative sentence to reflect the utilitarian value of the early guilty plea and the offender's willingness to facilitate the course of justice, in accordance with Xiao v R. The court was guided by the principle in Pearce v The Queen (1998) 194 CLR 610 that no single sentence could comprehend the totality of the criminality across all eight offences, requiring a carefully structured aggregate approach.

On subjective matters, the court acknowledged the offender's deprived childhood, significant alcohol dependency (consuming up to 48 cans of beer per day at the time of the offending), diagnosed psychological difficulties, expressed remorse, and engagement with rehabilitation. The court also received and considered two psychologists' reports, noting that these factors supported a significant period of supervised parole rather than a reduced head sentence. Full-time custody was accepted by both parties as the only appropriate outcome.

The court followed the observation in Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 that sentencing courts do not view the actual recordings and images, which carries a real risk of underestimating the impact on overseas child victims. That caution informed the court's overall assessment of the harm caused.

Orders Made

  • The offender was convicted of all eight offences.
  • Indicative sentences (after 25% discount for guilty plea) were:
  • Count 1 (including s 16BA schedule matters): 4 years, 6 months (from a starting point of 6 years)
  • Counts 2 to 7: 3 years, 7 months each (from a starting point of 4 years, 9 months each)
  • Count 8: 2 years, 11 months (from a starting point of 3 years, 9 months)
  • An aggregate sentence of 7 years imprisonment was imposed, commencing 24 May 2018.
  • A non-parole period of 4 years and 2 months was imposed, expiring 23 July 2022.
  • The court recommended the offender be held in segregation for the duration of his imprisonment.
  • The court recommended that both psychological reports accompany the warrant and be made available to Justice Health to assist with ongoing treatment.

Key Takeaways

  • Under s 16BA of the Crimes Act 1914 (Cth), a court must be satisfied that the schedule of additional matters has been signed by both the Commonwealth Director of Public Prosecutions and the offender, and that it is appropriate in all the circumstances to adopt the procedure. Failure to comply with that requirement is a procedural error warranting re-sentencing.

  • A 25% discount for an early guilty plea to serious Commonwealth child sex offences was held appropriate in this case, consistent with the framework in Xiao v R for assessing the utilitarian value of the plea and the facilitation of justice.

  • The District Court applied the principle from Pearce v The Queen that, where an offender faces multiple serious charges, the sentence for one offence cannot adequately reflect the criminality of all the others, making an aggregate approach necessary.

  • Where an offender charged with preparatory conduct (here, planning to travel overseas to offend against children) had no passport and no funds at the time of offending, this was a relevant factor reducing objective seriousness below mid-range for that particular count.

  • Consistent with Director of Public Prosecutions (Cth) v Beattie, sentencing courts do not view the underlying abuse material, creating a recognised risk that the harm to overseas child victims may be underestimated without conscious vigilance.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), including s 16BA
- Criminal Code 1995 (Cth), including ss 272.9(2), 474.19(1)(a)(iv), and 11.1(1)

Cases:
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Hili v R; Jones v R (2010) 242 CLR 520
- Mouscas v R [2008] NSWCCA 181
- Pearce v The Queen (1998) 194 CLR 610
- R v Booth [2009] NSWCCA 89
- R v Cole [2016] VCC 1748
- R v Gent; Assheton v R [2002] WASCA 209; 132 A Crim R 237
- R v Hawke [2018] VCC 518
- R v Le Gassick [2014] VCC 1288
- R v Porte [2015] NSWCCA 174
- Rivo v The Queen [2012] VSCA 117
- Xiao v R (2018) 96 NSWLR 1