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District Court 4 June 2020

R v Chick

[2020] NSWDC 650

Sexual offences
CRIME RELEVANT FACTORS ON SENTENCE EARLY GUILTY PLEA

Citation: R v Chick [2020] NSWDC 650
Court: District Court of New South Wales
Date: 4 June 2020
Judge: Haesler SC DCJ

Background

The offender, a man born in 1975 with no prior criminal history, engaged in online communications over six days across August and September 2019 with a person he believed to be a 14-year-old girl. He sent highly sexualised messages and images, including explicit photographs and video of himself, and repeatedly solicited the supposed child to send images in return. He declined an offer to meet in person.

The person he was communicating with was in fact an undercover police officer operating a sting identity. The offender was subsequently arrested and entered early guilty pleas to two offences under the Criminal Code 1995 (Cth).

The sentencing proceedings concerned how to balance the serious public interest in deterring online child exploitation against the offender's personal circumstances, psychological profile, and the fact that no actual child was harmed.

  • What was the appropriate objective seriousness of the offences, given that the "victim" was a police officer rather than a real child?
  • How should moral culpability be assessed where the offender believed he was communicating with a minor?
  • What weight should be given to general deterrence, personal deterrence, and rehabilitation in fixing the sentence?
  • Whether a non-custodial sentence was appropriate in light of the offender's psychological treatment, personal circumstances, and early guilty plea?

Decision

Haesler SC DCJ convicted the offender on both counts and imposed non-custodial sentences, with strict conditions. The court found that, while the absence of a real child victim reduced the objective seriousness of the offending compared with cases involving actual harm to a child, the offender's moral culpability was not reduced simply because a police officer was involved. The offender believed he was communicating with a 14-year-old, and his conduct was deliberately exploitative and directed toward his own sexual gratification.

The court identified general deterrence as a critical sentencing factor, noting the difficulty in detecting this type of offending and the need to protect children from online predators. The offender's persistence across multiple communications demonstrated at least some premeditation, and the court rejected rationalisations he offered about his state of mind.

The offender's subjective case was assisted by his early guilty pleas, absence of prior criminal history, strong family support, and engagement with a treating psychologist. The psychologist reported that the offender did not fit the typical profile associated with sex offenders, was responding to treatment, and that a custodial sentence would impede his progress. A Sentence Assessment Report reached similar conclusions. The court accepted that continued community-based treatment offered the best prospects for reducing the risk of reoffending.

Weighing all factors, the court determined that a suspended sentence and recognisance orders, coupled with intensive supervision and conditions including registration of all devices with NSW Police, struck the appropriate balance. The court was explicit that any breach would result in imprisonment.

Orders Made

Offence 1: Use a carriage service to send indecent material to a person less than 16 years old (s 474.27A(1), Criminal Code 1995 (Cth))
- Convicted
- Sentenced to one year and ten months imprisonment, suspended on entering a recognisance (good behaviour bond) for two years
- Conditions include:
- Supervision and compliance with directions of Community Corrections NSW for two years, including participation in sex offender programs
- Reporting to Wollongong Community Corrections within seven days
- Registration of all computers, phones, and other devices with NSW Police for two years

Offence 2: Use a carriage service to solicit child pornography material (s 474.19(1), Criminal Code 1995 (Cth))
- Convicted
- Sentence deferred; recognisance entered pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) in the sum of $400, to be of good behaviour for three years
- Same conditions as Offence 1 apply for the two-year period

The court noted that NSW Police would separately register the offender under the Child Protection (Offender's Registration) Act 2000 (NSW) and impose their own conditions, breach of which would itself constitute a criminal offence and a breach of good behaviour.

Key Takeaways

  • Where an offender believes he is communicating with a child, moral culpability is not diminished by the fact that the "victim" was actually an undercover police officer. The District Court applied this principle from Gajjar v R [2008] VSCA 268.
  • Objective seriousness is nonetheless affected by the absence of an actual child victim, since the harm caused by the conduct is assessed as less severe than where a real child is directly involved.
  • General deterrence carries particular weight in online child exploitation offences, given the inherent difficulty in detection and the significant public interest in protecting children from predatory online conduct.
  • A non-custodial outcome remains available for these offences where the combination of early guilty pleas, genuine engagement with psychological treatment, absence of prior offending, and favourable clinical assessment supports a finding that community-based supervision better serves the sentencing purposes than imprisonment.
  • Suspended sentences in this context are accompanied by conditions that function as substantial restrictions on liberty, including device registration requirements, mandatory supervision by Community Corrections, and participation in sex offender programs. Non-compliance carries the immediate prospect of the suspended term being imposed.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 474.19(1), 474.27A(1)
- Crimes Act 1914 (Cth), ss 16A, 17A, 20(1)(a)
- Child Protection (Offender's Registration) Act 2000 (NSW)

Cases
- R v Asplund; Asplund v R [2010] NSWCCA 316
- Tector v R [2008] NSWCCA 151; 186 A Crim R 133
- Gajjar v R [2008] VSCA 268
- Minehan v R [2014] NSWCCA 140
- Hutchinson v R [2018] NSWCCA 152
- Kristensen v R [2018] NSWCCA 189
- Nahlous v R [2013] NSWCCA 90