Citation: R v Frewin [2021] NSWDC 114
Court: District Court of New South Wales
Date: 5 March 2021
Judge(s): Buscombe DCJ
Background
The offender, a 48-year-old man from Moruya, pleaded guilty to five Commonwealth offences arising from online contact with a 13-year-old girl (referred to as JH) and a police officer operating an undercover online identity purporting to be a 14-year-old girl. The conduct occurred between June and November 2019.
Using two Facebook accounts, the offender sent JH sexually explicit text messages, made repeated voice calls via Facebook Messenger, and, after being told by her father to cease all contact, continued to communicate with her. His conduct escalated to a threatening phone call in which he demonstrated detailed knowledge of the child's personal circumstances and warned her against involving police.
The fifth offence arose from a separate police operation. An undercover officer operating a fictitious Facebook profile of a 14-year-old girl received explicit messages from the offender, including pornographic images and requests for naked photographs, along with invitations to engage in sexual activity accompanied by offers of illicit drugs.
Legal Issues
- What sentence was appropriate for five Commonwealth carriage service offences, including transmitting indecent communications to a person under 16, using a carriage service to facilitate grooming, using a carriage service in a menacing way, and using a carriage service to procure a person believed to be under 16?
- What weight should the court give to the offender's significant physical disabilities in moderating the sentence?
- What discount applied for the offender's early guilty plea?
- How should the aggregate sentence and non-parole period be structured across five related offences involving one real child victim and one undercover police operation?
Decision
Objective seriousness:
The court assessed all five offences as falling below the notional mid-range of objective seriousness, though each was treated as serious in context (at [33]-[35]). The first two charges, each involving a small number of sexually explicit text messages to JH, were assessed as below mid-range, partly because the messages were not specifically targeted and were limited in number (at [33]). The grooming charge was also assessed as below mid-range, although the court noted it needed to be viewed alongside the first two charges (at [33]). The menacing phone call to the 13-year-old was described as particularly serious and assessed as just below mid-range (at [34]). The fifth offence, involving the undercover police identity, was assessed as slightly below mid-range. The court confirmed that the absence of a real child victim for that count did not mitigate its seriousness (at [35]).
Aggravating factors:
The court found the offender's continued contact with JH after her father had clearly told him to stop, and after he had promised to block her number, added to the seriousness of each relevant offence (at [31]). The court rejected the offender's explanation that he dialled JH's number by mistake as not plausible (at [32]). The menacing call, during which the offender demonstrated specific knowledge of the child's school, year level, bus route and birthday, was found to have caused understandable fear (at [17]).
Subjective case and mitigating factors:
The offender had a prior criminal history, including stalking and domestic violence order breaches, but no prior sexual offences, meaning he was entitled to little leniency on that basis (at [37]). The court accepted his remorse and guilty plea as genuine, and allowed a 25 per cent discount for the utilitarian value of the plea entered in the Local Court (at [47]-[49]). His prospects for rehabilitation were assessed as no better than guarded, given the absence of a professional risk assessment and his prior record (at [48]).
Impact of medical conditions:
The offender sustained a spinal cord injury in 2005 resulting in incomplete paraplegia. He requires self-catheterisation three times daily and manual bowel evacuation, carries a higher risk of infection, and needs an ankle-foot orthosis to prevent falls (at [41]). The court found these conditions made his time in custody considerably more onerous than for other prisoners, and significantly moderated the sentence it would otherwise have imposed (at [44]). The court also emphasised that general deterrence must always feature strongly in sentencing for offences directed at young adolescent children, noting such offences are prevalent and often difficult to detect (at [51]).
Aggregate sentence:
Applying the State aggregate sentencing provisions, which the High Court confirmed are available when sentencing for Commonwealth offences, the court imposed an aggregate sentence of four and a half years imprisonment with a non-parole period of two years. The sentence was backdated to the date of arrest, 20 May 2020 (at [50], [56]).
Orders Made
- The offender was convicted of all five offences to which he pleaded guilty.
- An aggregate sentence of four years and six months imprisonment was imposed, with a non-parole period of two years.
- The sentence commences 20 May 2020 and expires 19 November 2024.
- The non-parole period expires 19 May 2022.
Key Takeaways
- A sentencing court may significantly moderate an otherwise more severe sentence where an offender's serious physical disabilities will make custodial conditions considerably more onerous than they would be for prisoners without those conditions (at [44]).
- General deterrence carries significant weight in sentencing for carriage service offences targeting adolescent children. The District Court emphasised these offences are prevalent, difficult to detect, and warrant stern punishment (at [51]).
- Continued contact with a child victim after a parent has expressly directed the offender to stop, and after the offender promised to cease contact, constitutes an aggravating factor going to the seriousness of each relevant offence (at [31]).
- State aggregate sentencing provisions are available to a court sentencing an offender for Commonwealth offences, consistent with the High Court's confirmation in R v Pham [2015] HCA 39 (at [50]).
- The absence of a real child victim in an offence involving an undercover police identity does not operate as a mitigating factor (at [35]).
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth) ss 474.27A(1), 474.27(1), 474.17(1), 474.26(1)
Cases
- R v Pham [2015] HCA 39