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District Court 5 June 2020

R v Bezuidenhout

[2020] NSWDC 509

Sexual offences
CRIME SENTENCE COMMONWEALTH AND STATE OFFENCES POSSESS CHILD ABUSE MATERIAL TRANSMIT CHILD PORNOGRAPHY

Citation: R v Bezuidenhout [2020] NSWDC 509
Court: District Court of New South Wales
Date: 5 June 2020
Judge: Bourke SC DCJ

Background

The offender was sentenced in relation to three offences arising from conduct between February and April 2019. He had placed an advertisement on a classified website seeking sexual contact with underage girls, which prompted proactive investigations by the Child Exploitation Internet Unit (CEIU).

Two undercover police operatives responded to the advertisement. In the course of communications with those operatives, the offender transmitted child abuse material including images and videos, and engaged in detailed discussions about planned sexual activity involving a child. On 18 April 2019, police executed a search warrant and located additional child abuse material on the offender's devices.

The offender faced one State offence under the Crimes Act 1900 (NSW) for possession of child abuse material, and two Commonwealth offences: transmission of child pornography and using a carriage service to prepare or plan to engage in sexual activity with a child under 16. He pleaded guilty at the earliest opportunity.

  • What sentences were appropriate for each of the three offences, taking into account the applicable maximum penalties and the need for consistency across State and Commonwealth matters
  • What discount should apply to each offence for the early guilty plea, noting that a 25% utilitarian discount applies as a standard for the NSW offence but not by statute for the Commonwealth offences
  • How the sentences should be structured, including whether to apply a recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Cth) in respect of the Commonwealth offences
  • What non-custodial conditions, including supervision and travel restrictions, were appropriate upon release

Decision

Bourke SC DCJ applied a 25% discount for the early guilty plea to the NSW offence as required, and applied the same discount to the Commonwealth offences on account of the utilitarian value of avoiding a contested trial. The judge noted the offender's early plea spared witnesses from having to give evidence.

The court sentenced the offender to full-time custody across all three matters, with sentences structured so they ran cumulatively over a staggered period. The transmit offence attracted the longest head sentence, reflecting the higher maximum penalty of 15 years and the repeated, deliberate nature of the transmissions, which included both images and videos categorised under the Interpol Baseline Categorisation scale.

For the two Commonwealth offences, the court made a recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Cth), requiring release after serving one year and two months. Conditions included good behaviour for three years, supervision by a probation officer, compliance with reasonable directions, and a prohibition on interstate or overseas travel without written permission from a probation officer. The court noted the offender's first time in custody and the desirability of post-release supervision in fixing the length of that order.

A forfeiture order was also made by consent in relation to the offender's Acer laptop.

Orders Made

  • Sequence 10 (NSW possession offence): Fixed term of 9 months' imprisonment, commencing 12 December 2019, expiring 11 September 2020
  • Sequence 11 (Commonwealth prepare or plan offence): Head sentence of 1 year 6 months, commencing 12 February 2020, expiring 11 August 2021
  • Sequence 2 (Commonwealth transmit child pornography offence): Head sentence of 1 year 8 months, commencing 12 March 2020, expiring 11 November 2021
  • Recognizance release order (Commonwealth offences): Release after serving 1 year 2 months from 12 February 2020 (eligible from 11 April 2021), subject to good behaviour bond for 3 years, probation supervision, compliance with probation officer's directions, and no interstate or overseas travel without written permission from a probation officer; bond expires 10 April 2024
  • Forfeiture order: Acer laptop forfeited by consent
  • Conviction recorded for each offence

Key Takeaways

  • The District Court applied a 25% guilty plea discount to Commonwealth offences on the same utilitarian basis as the NSW standard discount, even though no statutory requirement mandated an equivalent reduction for those Commonwealth matters.
  • Where a defendant faces both State and Commonwealth child exploitation offences arising from the same course of conduct, the court structures sentences to run cumulatively but staggers commencement dates to achieve an overall proportionate result.
  • The Interpol Baseline Categorisation scale, which distinguishes between category 1 material (depicting real prepubescent children in sexual acts or focused on genital or anal regions) and category 2 material (other offensive depictions of children), was used as a framework for assessing the gravity of the transmitted material.
  • Under s 20(1)(b) of the Crimes Act 1914 (Cth), a recognizance release order can attach conditions including probation supervision and travel restrictions, and the length of custody to be served before release may be calibrated to reflect that it is the offender's first time in custody and the importance of post-release oversight.
  • A forfeiture order over digital devices used in connection with child exploitation offences was made by consent, reflecting the established practice of removing instrumentalities of such offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), s 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Minehan v R [2010] NSWCCA 140
- Qutami [2001] NSWCCA 353
- R v Hutchinson [2018] NSWCCA 152