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District Court 26 November 2020

R v Wilkinson

[2020] NSWDC 914

Sexual offencesPublic order & justice offences
CRIME SENTENCE BREACH OF BOND BREACH CALL UP SIMILAR OFFENCES OFFENDER ON CHILD PROTECTION REGISTER

Citation: R v Wilkinson [2020] NSWDC 914
Court: District Court of New South Wales
Date: 26 November 2020
Judge: Wilson SC DCJ

Background

The offender, a 25-year-old man, appeared for sentencing on multiple charges arising from conduct between 1 and 27 August 2019. He had prior convictions relating to child sexual offences and was, as a result, a registered offender on the Child Protection Register for life.

The primary charge concerned the offender's conduct towards a child (then aged 14) whom he had met at an ice skating rink in Erina. Over a period of months the relationship shifted from casual conversation to sexualised messaging, during which the offender solicited the child to produce and send nude photographs and videos in exchange for money, and offered to perform sexual acts on him for payment. The child added the offender on Snapchat, through which the offender continued this conduct, ultimately procuring the child for the production and dissemination of child abuse material.

The offender was also charged with failing to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000, specifically by not disclosing his use of chatroom, instant messaging, and social networking services when he reported to police on 2 July 2019. This was not his first failure to comply with those obligations. At the time of all this offending, the offender was already subject to a three-year Community Corrections Order imposed for earlier similar conduct.

  • The appropriate head sentence and non-parole period for the principal offence of procuring a child under 14 years for unlawful sexual activity (production and dissemination of child abuse material) under s 66EB(2) of the Crimes Act 1900 (NSW)
  • Sentencing for the associated possession of child abuse material charge (taken into account on a Form 1 alongside the principal charge)
  • Sentencing for failure to comply with reporting obligations under s 17(1) of the Child Protection (Offenders Registration) Act 2000, noting this was a second detected breach
  • Whether special circumstances existed justifying a departure from the standard ratio of non-parole period to head sentence
  • How to structure the aggregate sentence given the breach call-up on the existing Community Corrections Order

Decision

Wilson SC DCJ identified the offending as serious across all counts. The principal offence carried a maximum of 12 years' imprisonment with a standard non-parole period of six years, reflecting parliament's assessment of its gravity. The offender's commission of these offences while on conditional liberty (the Community Corrections Order) constituted a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999.

On the reporting obligations charge, the court noted that the offender had signed an acknowledgment on 2 July 2019 confirming he understood his obligations, yet deliberately omitted details of his online accounts. This was the second occasion on which he had been detected breaching those obligations, which the court treated as a significant aggravating feature.

The court found special circumstances warranting a reduction in the non-parole period relative to the head sentence. Expert evidence from Professor Woods about the offender's prospects of rehabilitation was considered, and the court recorded some encouragement that rehabilitation remained possible given the offender's age. The indicative term for the principal procuring charge was three years with a non-parole period of 18 months, while the reporting failure attracted an indicative two years. The breach call-up on the Community Corrections Order attracted an indicative 18 months.

The court imposed an aggregate sentence of four years, commencing from the date of the offender's remand into custody on 28 August 2019. A non-parole period of two years was fixed, reflecting the finding of special circumstances.

Orders Made

  • The offender was convicted of procuring a child under 14 years for unlawful sexual activity (production and dissemination of child abuse material) contrary to s 66EB(2) of the Crimes Act 1900 (NSW)
  • The offender was convicted of failing to comply with reporting obligations contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW)
  • An aggregate sentence of four years' imprisonment was imposed, commencing 28 August 2019 and expiring 27 August 2023
  • A non-parole period of two years was set, expiring 27 August 2021, at which date the offender became eligible for parole consideration
  • The existing Community Corrections Order was revoked

Key Takeaways

  • Being on conditional liberty (such as a Community Corrections Order) at the time of offending is a statutory aggravating factor under the Crimes (Sentencing Procedure) Act 1999, and the District Court gave it express weight in this sentencing exercise.
  • Repeated failures to comply with Child Protection Register reporting obligations, including omitting details of online accounts, were treated cumulatively: the second detected breach attracted an indicative sentence of two years, compared to the Community Corrections Order imposed for the first.
  • Under s 66EB(2) of the Crimes Act 1900, procuring a child under 14 for the production and dissemination of child abuse material carries a maximum of 12 years with a six-year standard non-parole period, which the court described as a guidepost reflecting parliament's assessment of the offence's seriousness.
  • Special circumstances can justify a non-parole period shorter than the standard ratio, and here the court accepted evidence about the offender's rehabilitation prospects as relevant to that finding.
  • An aggregate sentencing approach was available where multiple charges and a breach call-up arose from overlapping offending, with the court fixing a single head sentence and non-parole period across all matters.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66EB(2) (procuring a child under 14 for unlawful sexual activity) and s 91H(2) (possession of child abuse material)
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1) (failure to comply with reporting obligations)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5 and 21A

Cases:
No cases were cited in the judgment.