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District Court 30 January 2020

R v NF

[2020] NSWDC 352

Sexual offences
SENTENCING CHILD SEX OFFENCES

Citation: R v NF [2020] NSWDC 352
Court: District Court of New South Wales
Date: 30 January 2020
Judge: Payne DCJ

Background

The offender, an adult male, was charged with one offence of using a carriage service to transmit indecent material to a person he believed was under 16 years of age, contrary to s 474.27A(1) of the Criminal Code 1995 (Cth). The maximum penalty for this offence is seven years' imprisonment. The conduct occurred between October 2018 and February 2019, when the offender sent sexually suggestive messages and nude photographs of himself to what was in fact a police assumed online identity posing as a 14-year-old girl.

The conversations took place across two social media platforms. The offender was aware from early in the exchange that the person he was communicating with was represented as a 14-year-old female, yet he continued to engage in sexually explicit dialogue and transmitted the images over several weeks.

The matter was initially intended to be dealt with summarily, but the Crown later elected to proceed on indictment in the District Court. A psychiatric report had been obtained that raised the possibility of a mental health diversion, but this was not pursued after the matter was elevated. A prior representation by the Commonwealth Director of Public Prosecutions (CDPP) that it would not oppose a non-custodial sentence was subsequently resiled from following a change of prosecutor.

  • Whether a term of immediate imprisonment was required for a single offence under s 474.27A(1) of the Criminal Code 1995 (Cth)
  • The weight to be given to the offender's early guilty plea, genuine remorse, and cooperation with authorities
  • Whether the offender's mental health, depression, and treatment history were relevant to specific deterrence
  • The appropriate reduction for the utilitarian value of the guilty plea
  • Whether a recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Cth) was appropriate

Decision

Payne DCJ convicted the offender and sentenced him to a term of imprisonment, but ordered his immediate release on a recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Cth). The court identified an indicative pre-discount sentence of 22 months, reduced by 25 percent for the utilitarian value of the guilty plea, producing a term of 16 months (one year and four months).

The court accepted that the offender was genuinely remorseful, had taken full responsibility for his conduct, and understood the harm his behaviour would have caused had the recipient been a real child rather than a police operative. Psychological and forensic reports confirmed he held no attitudes condoning child sexual abuse and that his offending was connected to a period of depression.

On the question of specific deterrence, the court found that the charging process itself, the unsettled progression of the proceedings (including the change in prosecutorial stance), and the treatment the offender had obtained for his depression had collectively reduced the need for specific deterrence. The court was also satisfied the offending was isolated and out of character.

Some limited weight was given to the procedural difficulties the offender experienced, including the impact of the CDPP resiling from its earlier position. The court did not suggest the Crown had acted improperly, but acknowledged the matter had added to the offender's anxiety.

Orders Made

  • Offender convicted of one offence contrary to s 474.27A(1) of the Criminal Code 1995 (Cth)
  • Sentenced to imprisonment for one year and four months, commencing 30 January 2020 and expiring 29 May 2021
  • Released forthwith upon entering a recognizance in the amount of $500, with the following conditions:
  • To be of good behaviour for two years, expiring 29 January 2022
  • To continue to receive psychological counselling
  • To take any medication prescribed by his general practitioner, as directed

Key Takeaways

  • A conviction under s 474.27A(1) of the Criminal Code 1995 (Cth) applies where an offender transmits indecent material to a person he believes to be under 16, regardless of whether that person is in fact a minor. The use of a police assumed identity does not negate the offence.

  • The District Court applied a 25 percent reduction to the indicative sentence solely for the utilitarian value of the guilty plea, consistent with the approach under the Crimes Act 1914 (Cth).

  • Where an offender has engaged meaningfully with psychological treatment, and that treatment addresses identified triggers for offending behaviour, those circumstances may reduce the weight given to specific deterrence at sentencing.

  • A recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Cth) remains available for Commonwealth offences and can result in immediate release even where a term of imprisonment is formally imposed.

  • Procedural irregularities and changes in prosecutorial position during proceedings, while not necessarily constituting improper conduct, may attract limited mitigatory weight when assessing the overall impact of the process on an offender.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 474.27A(1)
- Crimes Act 1914 (Cth), s 16A, s 20(1)(b), s 20B(2)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases: No cases were cited in the judgment.