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District Court 13 August 2020

R v Paterson

[2020] NSWDC 416

Sexual offencesPublic order & justice offences
CRIME SENTENCING MONEY SENT TO VICTIM’S ACCOUNTS SEXUALLY EXPLICIT TEXTS INTELLECTUAL IMPAIRMENT OF OFFENDER REDUCED MORAL CULPABILITY

Citation: R v Paterson [2020] NSWDC 416
Court: District Court of NSW
Date: 13 August 2020
Judge: Lerve DCJ

Background

The offender, a 51-year-old man with a mild-to-moderate intellectual disability, pleaded guilty to three charges in the Wagga Wagga District Court: one count of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000, and two counts of grooming a child for unlawful sexual activity under s 66EB(3) of the Crimes Act 1900. Two further failure-to-report charges were listed on a Form 1 document (charges taken into account at sentencing without a separate penalty being imposed).

The offending arose from a pattern of conduct in mid-July 2019 in which the offender used a false Facebook profile presenting as a teenage female to befriend two girls, both aged 15. He transferred money totalling over $1,800 to the victims and, in exchange, sent sexually explicit text messages seeking sexual acts from one of the victims. He had previously been convicted in 2014 for using a carriage service to send indecent material to a person under 16, and was a registered person subject to ongoing reporting obligations at the time of this offending.

The offender had been released from custody in October 2014 and completed registration under the Child Protection register at that time. His failure to comply with his reporting obligations formed a separate strand of the offending alongside the grooming conduct.

  • What sentences were appropriate for one count of failing to comply with reporting obligations and two counts of child grooming, having regard to the maximum penalties and the standard non-parole period of four years for grooming offences?
  • To what extent did the offender's mild-to-moderate intellectual disability reduce his moral culpability and affect the weight to be given to general deterrence?
  • Was an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 appropriate, and how should partial accumulation be applied given the distinct character of the offences?
  • Was a finding of special circumstances warranted to extend the balance of term beyond the statutory default, and if so, by how much?

Decision

Lerve DCJ convicted the offender on all three charges and imposed an aggregate sentence, noting that the grooming offences plainly required a term of imprisonment. His Honour applied the one-step instinctive synthesis process, treating the maximum penalties and the four-year standard non-parole period for grooming as principal guideposts.

The offender's intellectual disability was a central sentencing consideration. A substantial body of expert material was tendered on his behalf, and the court accepted that his mild-to-moderate intellectual disability reduced his moral culpability. Consistent with the principles in cases such as Taitoko v R and Ngati v R, the court also gave reduced weight to general deterrence on account of that disability, while acknowledging that the protection of children remained a significant sentencing objective.

The court found special circumstances warranting a substantial departure from the statutory ratio between non-parole period and balance of term. The extended balance of term was designed to support the offender's rehabilitation upon release, including participation in a supervised sex offenders programme. His Honour took into account the full 25 per cent discount for the utilitarian value of early guilty pleas entered in the Local Court.

Individual notional sentences were identified to allow for the aggregate approach: 12 months for the reporting failure, two years (non-parole period of 12 months) for the first grooming charge involving OA, and 15 months (non-parole period of 8 months) for the second grooming charge involving ME. Partial accumulation was applied across the individual sentences to arrive at the aggregate term.

Orders Made

  • The offender was convicted of all three offences.
  • An aggregate sentence of 2 years and 10 months was imposed, with a non-parole period of 1 year and 3 months.
  • The non-parole period commenced 26 October 2019 and expires 25 January 2021.
  • The balance of term commences 26 January 2021 and expires 25 August 2022.
  • A substantial finding of special circumstances was made.
  • The offender is to be released to statutory parole at the expiration of the non-parole period.
  • Parole is to be supervised by the Department of Community Corrections and conditioned on the offender obeying all reasonable directions relating to participation in a sex offenders programme.
  • Expert reports (Ms Howell's report and the Queenscliff Centre report) are to be annexed to the warrant forwarded to the Department of Corrective Services.

Key Takeaways

  • A mild-to-moderate intellectual disability can reduce an offender's moral culpability and diminish the weight given to general deterrence in sentencing, even for serious child exploitation offences where protection of children remains a paramount concern.
  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, a court imposing an aggregate sentence must still identify the notional individual sentences to make transparent the reasoning behind the overall term.
  • Special circumstances permitting an extended balance of term (beyond the one-third default) may be found where the offender's cognitive limitations make structured post-release supervision and rehabilitation particularly important.
  • The standard non-parole period of four years for grooming offences under s 66EB(3) operates as a guidepost within the one-step instinctive synthesis, not a mandatory minimum, and can be departed from where the individual circumstances of the offender and offending warrant.
  • Grooming conduct involving the use of false online identities, money transfers, and sexually explicit communications with children aged 15 was treated by the District Court as conduct plainly requiring imprisonment, notwithstanding the offender's cognitive impairment.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
- Crimes Act 1900 (NSW), s 66EB(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 37, 53A

Cases
- The Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999, No. 1 of 2002 (2002) 56 NSWLR 146 (Guideline Judgment on Form 1 matters)
- Muldrock v The Queen [2011] HCA 39
- Taitoko v R [2020] NSWCCA 43
- Ngati v R [2014] NSWCCA 125
- Tepania v R [2018] NSWCCA 247
- Aslan v R [2014] NSWCCA 114
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Boney [2008] NSWCCA 313
- R v Despotovski [2020] NSWDC 110
- R v MW [2019] NSWDC 307