AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 16 November 2020

The Queen v Dalwood

[2020] NSWDC 841

Sexual offences
CRIME SENTENCE 6 CHARGES CHILD SEXUAL OFFENDING VICTIMS OUTSIDE AUSTRALIA CHILD PORNOGRAPHY OFFENCES

Citation: The Queen v Dalwood [2020] NSWDC 841
Court: District Court of New South Wales
Date: 16 November 2020
Judge: Wilson SC DCJ

Background

The offender, an adult male, appeared for sentencing on six charges arising from conduct between August 2018 and April 2019. During that period, he used Facebook Messenger to communicate with an adult woman believed to be located in the Philippines, who had three daughters aged approximately 3 to 4, 8 to 9, and 13 to 14 years old at the time. The offender and the woman purported to be in a relationship, and the children referred to him as "dad."

Over more than ten hours of recorded video chat logs, the offender repeatedly directed the woman to have her daughters undress on camera, pose naked, and engage in sexual activity for the camera. He also communicated directly with the two older children, soliciting sexual images from them and procuring them to engage in sexual activity by offering money and gifts. He made explicit statements about his intention to engage in sexual acts with the children, including a child of approximately three years of age.

The offender was arrested in April 2019, re-arrested for breach of bail in May 2019, and remained in custody from 28 May 2019 onwards. He pleaded guilty to all six charges in March 2020 and maintained those pleas when the matter was committed to the District Court for sentence.

  • What aggregate sentence was appropriate across six discrete charges involving child sexual offending, possession of child abuse material, and carriage service offences?
  • How should the principles of totality, concurrency, and accumulation apply when sentencing for multiple offences occurring over an extended period?
  • What weight should be given to the offender's guilty pleas, personal circumstances, and any other mitigating or aggravating factors?
  • How should the indicative sentences for each individual count be structured before arriving at an aggregate term?

Decision

Wilson SC DCJ noted that the maximum penalties of 10 and 15 years' imprisonment for the respective charges reflect the seriousness with which Parliament and the community view this type of offending, and serve as a guidepost for the sentencing judge. His Honour considered the objective seriousness of the conduct, which involved deliberate, sustained exploitation of very young victims overseas, including direct communications with the children and financial inducement.

The offending was treated as comprising discrete events across six counts, calling for some accumulation of sentences. At the same time, his Honour recognised that imposing a sentence equal to the sum of all indicative terms would be excessive and would offend the totality principle. A high degree of concurrency was therefore struck to ensure the aggregate sentence reflected the total criminality without being disproportionate.

Mitigating factors, including the guilty pleas entered at an early stage, were taken into account in arriving at the final terms. His Honour then imposed an aggregate sentence with a non-parole period of three years and a head sentence of six years, commencing from the date the offender was taken into custody on 28 May 2019.

Orders Made

  • The offender was convicted of all six charges:
  • Count 1: Possess child abuse material (s 91H(2), Crimes Act 1900 (NSW))
  • Count 2: Use a carriage service to solicit child pornography material (s 474.19(1), Criminal Code (Cth))
  • Count 3: Use a carriage service to plan a sexual act with a person under 16 years (s 474.25C, Criminal Code (Cth))
  • Count 4: Procure a child for sexual activity outside Australia (s 272.14(1), Criminal Code (Cth))
  • Count 5: Procure a child for sexual activity outside Australia (s 272.14(1), Criminal Code (Cth))
  • Count 6: Use a carriage service to transmit child pornography material (s 474.19(1), Criminal Code (Cth))
  • Aggregate sentence imposed: non-parole period of 3 years commencing 28 May 2019, with a head sentence of 6 years
  • Parole eligibility date: 27 May 2022

Key Takeaways

  • The District Court applied the totality principle by fixing a high degree of concurrency across the six counts, recognising that imposing the aggregate sum of each indicative term would have been excessive given the overall criminality involved.
  • Where multiple child sexual offences are charged as discrete events over an extended period, some accumulation of sentences remains appropriate to reflect the separate nature of each instance of offending.
  • Maximum penalties for child sexual offences under both New South Wales and Commonwealth legislation are treated as meaningful guideposts for sentencing courts, not merely theoretical upper limits.
  • An early guilty plea to all charges was a relevant mitigating consideration in arriving at the aggregate sentence.
  • Offending involving the exploitation of overseas child victims through online platforms, including the use of financial inducement and coercion directed at both an adult intermediary and the children themselves, was treated as reflecting serious objective criminality across all counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 91H(2)
- Crimes Act 1914 (Cth) ss 16A, 17A
- Criminal Code (Cth) ss 272.14, 474.19, 474.25C
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5

Cases:
- Baden v R [2020] NSWCCA 23
- Director of Public Prosecutions v Beattie [2017] NSWCCA 301
- Minehan v R [2010] NSWCCA 140
- Pearce v The Queen (1998) 194 CLR 610
- Ryan v The Queen [2001] HCA 21
- Qutami [2001] NSWCCA 353