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District Court 2 October 2020

R v Watson (No 2)

[2020] NSWDC 582

Sexual offences

Citation: R v Watson (No 2) [2020] NSWDC 582
Court: District Court of New South Wales
Date: 2 October 2020
Judge: Mahony SC DCJ

Background

The offender had originally been sentenced on 18 December 2019 across four counts: two State offences of contravening a Child Protection Prohibition Order (CPPO), and two Commonwealth offences of accessing and transmitting child pornography material using carriage services. Following that sentencing, it emerged that the CPPO underpinning the State offences had been invalidly made. Those convictions were subsequently annulled, and the Court of Criminal Appeal quashed both the State convictions and the aggregate sentence imposed for the Commonwealth offences.

The Commonwealth offences (Counts 3 and 4) were remitted to the District Court for re-sentencing. The Court of Criminal Appeal had allowed the sentence appeal because the judge, in imposing two separate aggregate sentences, had effectively pre-determined individual sentences in a way that could not be treated independently when considering totality.

The re-sentencing hearing proceeded on 27 August 2020. A significant adjustment was required: the original sentencing had proceeded on the basis that the offender was on conditional liberty (parole) at the time of the Commonwealth offending, but because the convictions giving rise to that parole had been annulled, the offender was to be re-sentenced on the basis that she was not on conditional liberty during the offending period.

  • Whether the sentences for Counts 3 and 4 should be restructured now that the related State convictions had been quashed and the offender could no longer be treated as having been on parole during the offending
  • How to correctly approach totality and the sequencing of sentences across the two Commonwealth counts without the error identified by the Court of Criminal Appeal
  • Whether the offender's custodial history, including remand periods and time already served, should be reflected in the commencement dates of the new sentences
  • Whether an order for a pseudonym should be made for the offender

Decision

The District Court proceeded to re-sentence the offender solely on Counts 3 and 4: accessing child pornography material between November 2015 and December 2017 using three devices, and transmitting child pornography material between October 2016 and March 2017. Each offence carried a maximum penalty of 15 years imprisonment. The offender had entered early guilty pleas and was sentenced accordingly.

The court took into account the agreed facts from the original sentence proceedings, which described an ongoing course of conduct involving material categorised at serious levels of the CETS (Child Exploitation Tracking System) scale. The court also applied the then-applicable requirement under the amended Crimes Act 1914 (Cth) to have regard to rehabilitation considerations when sentencing for certain Commonwealth offences.

Because the annulment of the State convictions removed the basis for treating the offender as having been on conditional liberty, the court approached the re-sentencing on a materially different footing from the original sentence. The court carefully traced the offender's custodial history, including remand periods, time served under the original sentences, and the period of parole revocation, to ensure the new sentences accurately reflected time already spent in custody.

On the pseudonym application, the court declined to make such an order. The judge noted that the offender's former name had not been referred to in proceedings, and that section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) already prohibited publication of her name because she had been a child at the time of the offending.

Orders Made

  • The offender was convicted of Count 3 (accessing child pornography material using three carriage services, contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth)) and Count 4 (transmitting child pornography material using a carriage service, contrary to s 474.19(1)(a)(iii) of the Criminal Code (Cth))
  • Count 4: sentenced to 1 year and 6 months imprisonment, commencing 14 December 2017 and terminating 13 June 2019
  • Count 3: sentenced to 1 year and 9 months imprisonment, commencing 14 June 2018 and terminating 13 March 2020
  • Bail dispensed with
  • Pseudonym order declined

Key Takeaways

  • Where related convictions are annulled after sentence, and those convictions formed the basis for treating an offender as having been on conditional liberty during the relevant offending period, re-sentencing must proceed on the footing that no such conditional liberty existed.
  • The Court of Criminal Appeal confirmed in the earlier appeal that imposing two separate aggregate sentences is problematic where the judge has pre-determined individual sentences before considering accumulation and concurrence, as this prevents an independent assessment of totality.
  • A careful accounting of the offender's custodial history, including remand periods, parole revocations, and time already served, is required when structuring the commencement and termination dates of re-imposed sentences.
  • Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits publication of an offender's name where the proceedings relate to that person and the person was a child at the time of the relevant offence, which the District Court held provided sufficient protection without a separate pseudonym order.
  • Under the amended Crimes Act 1914 (Cth), courts sentencing for certain Commonwealth offences are required to have regard to rehabilitation considerations pursuant to s 16A(2AAA), a provision inserted after the original sentencing date and applied on re-sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 474.19(1)(a)(i) and (iii)
- Crimes Act 1914 (Cth), s 16A(2AAA)
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 12(2)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Criminal Procedure Act 1986 (NSW), s 109

Cases:
- Watson v R [2020] NSWCCA 215
- Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
- Refaieh v R [2018] NSWCCA 72