AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 4 June 2021

DPP(Cth) v COLAIACOVO

[2021] NSWDC 218

Sexual offences
CRIME SENTENCING GENERAL DETERRENCE

Citation: DPP(Cth) v Colaiacovo [2021] NSWDC 218
Court: District Court of New South Wales
Date: 4 June 2021
Judge: Lerve DCJ

Background

The offender, an adult male from Wagga Wagga, pleaded guilty to two federal offences arising from online communications he conducted in September 2019. He initiated contact on the messaging application Kik with what he believed to be a 14-year-old girl, but was in fact a police-operated Assumed Online Identity (AOI). The AOI told the offender on multiple occasions during their conversations that she was 14 years old.

The first offence involved the offender transmitting indecent material, including two photographs of his erect penis and a video of himself masturbating, to the AOI via Kik. The second offence involved the offender soliciting child abuse material by pressuring and instructing the AOI to masturbate and send him images or video of herself doing so. Communication later migrated from Kik to WhatsApp, where contact continued until 29 September 2019.

The offender was arrested in May 2020 when police executed a search warrant at his residence. He pleaded guilty before a Magistrate at Wagga Wagga Local Court on 1 February 2021, and the matter was committed to the District Court for sentencing.

  • What was the objective seriousness of each offence, having regard to the nature of the conduct and the applicable maximum penalties?
  • What weight should general deterrence receive in the sentencing exercise?
  • Whether the sentence should be served by way of full-time custody rather than a non-custodial or suspended alternative.
  • What discount should apply for the utilitarian value of the early guilty pleas?
  • How should the two sentences be structured, including the degree of accumulation and the non-parole period?

Decision

His Honour found that both offences were serious. The transmission offence carried a maximum of 7 years imprisonment and the solicit offence carried a maximum of 15 years. The court assessed the objective seriousness of the conduct having regard to the explicitly sexual nature of the material transmitted, the age of the person the offender believed he was communicating with, the persistent and escalating character of the conduct, and the offender's attempts to manipulate the AOI into producing child abuse material.

General deterrence was treated as a significant sentencing consideration. The court cited the prevalence of this type of offending, conducted through the relative anonymity of internet-based platforms, as a matter warranting particular emphasis. His Honour adopted the formulation from Karout v R [2019] NSWCCA 253, holding that the objective seriousness of the offending and the principle of general deterrence overwhelmed other considerations in play.

The court applied a 25 per cent discount to the starting-point sentences to reflect the utilitarian value of the guilty pleas, which had been entered in the Local Court. After that discount, the starting point of 16 months for the transmission offence reduced to 12 months, and the starting point of 2 years 9 months for the solicit offence reduced to 2 years. His Honour found that no sentence other than full-time imprisonment was appropriate.

The two sentences were partly accumulated rather than made fully concurrent, to reflect that the offences involved distinct conduct. The total head sentence was 2 years and 6 months, with the offender directed to be released after serving 15 months upon entering a recognizance.

Orders Made

  • The offender was convicted of both offences.
  • For the offence of using a carriage service to send indecent material to a person believed to be under 16 years: 12 months imprisonment, commencing 4 June 2021.
  • For the offence of using a carriage service to solicit child abuse material: 2 years imprisonment, commencing 4 December 2021.
  • Total head sentence of 2 years and 6 months, commencing 4 June 2021 and expiring 3 December 2023.
  • The offender to be released after serving 15 months (on 3 September 2022) upon entering into a recognizance in the sum of $1,000 to be of good behaviour for 2 years, pursuant to ss 20(1)(b) and 19AC of the Crimes Act 1914 (Cth).

Key Takeaways

  • The District Court treated general deterrence as a dominant sentencing consideration for carriage-service offences involving sexual communications and the solicitation of child abuse material from a person believed to be a child, particularly where the offending exploited the anonymity of social networking platforms.
  • A 25 per cent discount for guilty pleas was applied where the pleas were entered at the Local Court stage, reflecting the utilitarian value recognised under s 16A(2)(g) of the Crimes Act 1914 (Cth).
  • Where two distinct offences arise from a course of conduct that involves different criminal acts, partial accumulation of sentences, rather than full concurrency, is appropriate to reflect the separate nature of each offence.
  • Full-time custody was considered the only appropriate sentencing option where the objective seriousness of the offending and the need for general deterrence together outweighed mitigating factors.
  • The use of a police-operated Assumed Online Identity did not diminish the objective gravity of the offending, since the offender's culpability turned on his own belief and intentions, not on the actual identity of the person he was communicating with.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 474.22(1), 474.27A(1)
- Crimes Act 1914 (Cth), ss 16A(2)(g), 19AC, 20(1)(b)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Butters v R [2010] NSWCCA 1
- Dinsdale v The Queen (2000) 202 CLR 321
- DPP (Cth) v Garside [2016] VSCA 74
- DPP v Walls [2014] VSCA 323
- EG v R [2015] NSWCCA 21
- Hili & Jones v The Queen (2010) 242 CLR 520
- Huggett v R [2021] NSWCCA 62
- Imbornone v R [2017] NSWCCA 144
- Karout v R [2019] NSWCCA 253
- MC v R [2017] NSWCCA 316
- McNiece v The Queen [2018] VSCA 186
- R v Asplund [2010] NSWCCA 316
- R v Blackman & Walters [2001] NSWCCA 121
- R v Clarke [2017] QCA 226
- R v Conway [2017] ACTSC 275
- R v De Leeuw [2015] NSWCCA 183
- R v Gajjar (2008) 192 A Crim R 76