Citation: R v Tippett [2020] NSWDC 576
Court: District Court of New South Wales
Date: 10 July 2020
Judge: M L Williams SC DCJ
Background
The offender, a 35-year-old man residing in Sydney, pleaded guilty to two offences. The first was a Commonwealth offence of using a carriage service to send indecent material to a person under the age of 16, contrary to s 474.27A of the Criminal Code 1995 (Cth). The second was a State offence of possessing child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW).
The Commonwealth offence arose from events in 2018, when South Australian Police operated an assumed online identity (AOI) of a 14-year-old female on a social networking platform. The offender initiated contact, was told the AOI was 14, and over several days sent an explicit image of himself and repeatedly requested photographs from her. When police executed a search warrant at his home in June 2018, they found child abuse images on his mobile phone, including one depicting a five-year-old child.
Significantly, the offender had prior convictions from 2014 for near-identical conduct: transmitting images of his erect penis to a 14-year-old AOI and possessing child pornography. On that occasion he received a two-year good behaviour bond and a recognisance release order. The current offending therefore represented a second episode of similar behaviour.
Legal Issues
- Whether full-time imprisonment was the appropriate sentencing disposition for both the Commonwealth and State offences
- What weight to give the offender's plea of guilty, remorse, and rehabilitative prospects
- How to structure the sentences (including totality) having regard to the purposes and principles of sentencing for both Commonwealth and State offences
- What significance to attach to the prior similar convictions and the assessed high risk of reoffending
Decision
His Honour found that full-time custody was plainly appropriate and that no alternatives to imprisonment required consideration. Both parties had agreed on this point, and there was no contest of substance between the Crown and defence submissions. The judge noted that the parties had not dissented from the sentences proposed during submissions, allowing for brief sentencing remarks.
On the Commonwealth offence, the court treated the matter as objectively serious. The explicit nature of the image sent, the sustained online grooming over several days, and the fact that the victim was an AOI (which the court emphasised did not make the conduct any less reprehensible) all weighed heavily. The prior 2014 convictions for substantially identical conduct were a significant aggravating feature, with the Community Corrections officer concluding the offender was either unaware of or indifferent to the harm caused by his conduct.
On the State possession offence, the court accepted it was objectively serious, while noting some limiting features: the images were held for personal use, there was no dissemination or involvement in any collaborative network, the material was not at risk of being seen by vulnerable persons, and only a small number of images were involved.
A 10 percent discount was applied to each sentence for the timeliness of the plea of guilty. The court identified specific and general deterrence as important considerations. The forensic psychologist assessed the offender as having a high risk of sexual reoffending, though the court noted that with appropriate psychological treatment his prospects of rehabilitation could be reasonable. He had been offered a place in a group treatment program for sexual offenders in December 2019.
Orders Made
- Commonwealth offence (s 474.27A Criminal Code 1995 (Cth)): convicted; fixed sentence of six months imprisonment commencing 28 June 2020
- State offence (s 91H(2) Crimes Act 1900 (NSW)): convicted; fixed sentence of eight months imprisonment commencing 28 August 2020, expiring 27 April 2021
- The sentences were structured to run consecutively, producing an effective total custodial period of approximately ten months from 28 June 2020
- Forfeiture order: Apple iPhone mobile telephone forfeited to the Commonwealth
Key Takeaways
- The District Court confirmed that the use of an assumed online identity by police does not diminish the seriousness of an offence involving the transmission of indecent material to a person believed by the offender to be under 16.
- Prior convictions for near-identical conduct constituted a significant aggravating factor, contributing to findings of high reoffending risk and a conclusion that full-time custody was the only appropriate disposition.
- A 10 percent discount on sentence was applied for a timely guilty plea, consistent with the principle that an early plea warrants a reduction even where the facts are largely agreed and the outcome was not in serious dispute.
- Where a forensic psychologist and Community Corrections both assess an offender as high-risk for sexual reoffending, the sentencing court will give substantial weight to specific deterrence and the need for treatment, while leaving some room for rehabilitation if structured intervention occurs.
- Under both Commonwealth and State sentencing frameworks, possession of child abuse material for personal use, without dissemination or involvement in a wider network, may be treated as a limiting feature in assessing objective seriousness, though it does not remove the offending from the serious category.
Legislation and Cases Referenced
Legislation
- Criminal Code 1995 (Cth), s 474.27A (using a carriage service to send indecent material to a person under 16)
- Crimes Act 1900 (NSW), s 91H(2) (possession of child abuse material)
Cases
- Kristensen v R [2018] NSWCCA 189
- DPP (Cth) v Walls [2014] VSCA 323
- R v Engeln [2014] QCA 313