Citation: R v Donald [2021] NSWDC 246
Court: District Court of New South Wales
Date: 4 June 2021
Judge: Coleman SC DCJ
Background
The offender, a man in his mid-twenties from North Queensland, had developed an online relationship with the victim (referred to by the pseudonym "TB") through Facebook from November 2014. Over a 12-month period, both parties exchanged sexually explicit photographs and videos via Facebook and Snapchat. The offender became increasingly demanding about the frequency and content of material sent to him.
On 30 October 2016, the offender travelled to Sydney without notifying the victim and messaged her seeking to meet for sex. When the victim's response was delayed, the offender escalated rapidly into threatening conduct. Over a period of approximately 82 minutes, he repeatedly threatened to post explicit images and videos of the victim online and to send them to her workplace, having already created a mock Facebook status page referencing those images and identifying her workplace.
The victim, who received the messages while at work, was terrified and, fearing the threats would be carried out, sent further explicit images and agreed to meet the offender. She later reported the matter to Campbelltown Police in March 2017. The offender was arrested in Cairns in March 2019, extradited to New South Wales, and spent nine months and two days in pre-sentence custody before being released on bail. He pleaded guilty on the first day of trial in May 2021.
Legal Issues
- Whether the conduct constituted a serious example of an offence under s 474.17(1) of the Criminal Code Act 1995 (Cth), which prohibits using a carriage service in a way that a reasonable person would regard as menacing, harassing or offensive
- What discount, if any, was warranted for the guilty plea given its timing on the first day of trial
- Whether the offender had shown genuine remorse or contrition
- What sentence was appropriate having regard to the mandatory sentencing considerations under s 16A of the Crimes Act 1914 (Cth), including the requirement under s 19AC governing short sentences for federal offenders
Decision
Coleman SC DCJ assessed the objective seriousness of the offending as very serious, placing it just above the mid-range. The threats were sustained, escalating, and directed at a victim who was visibly distressed throughout the exchange. The judge found that the offender's closing message claiming he had been "just fucking with" the victim did not significantly reduce the gravity of the conduct. The court drew the equally open inference that the offender had already achieved his objective by that point, since the victim had agreed to meet him.
On the question of remorse, the judge found none. A letter written by the offender after his plea spoke generally about expressing emotion through social media without referring to this specific offending, its impact on the victim, or showing any real insight. The court agreed with the Crown's submission that no genuine contrition had been demonstrated.
A guilty plea discount of 10 per cent was applied, reflecting the limited utilitarian value of a plea entered only on the first day of trial. This reduced a starting sentence of 12 months' imprisonment to 10 months. Under s 19AC of the Crimes Act 1914 (Cth), where a federal sentence does not exceed three years, the court must not impose a non-parole period and must instead make a release recognizance order. The court set a pre-release period of six months.
Because the offender had already served nine months and two days in pre-sentence custody, and the court backdated the sentence to 1 September 2020, the offender was ordered to be released immediately on his own recognizance.
Orders Made
- The offender was convicted of one count of using a carriage service in a manner that was menacing, harassing or offensive, contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth)
- Sentenced to 10 months' imprisonment commencing 1 September 2020, expiring 30 June 2021
- Pre-release period set at 6 months under s 19AC of the Crimes Act 1914 (Cth)
- Immediate release ordered under s 20(1)(b) of the Crimes Act 1914 (Cth), having regard to the 9 months and 2 days already served
- Released on own recognizance with security of $200 (no surety), on condition of good behaviour for 12 months until 3 June 2022
- Exhibits returned to the parties
Key Takeaways
- The District Court treated sustained, escalating threats to disseminate intimate images as a very serious example of an offence under s 474.17(1) of the Criminal Code Act 1995 (Cth), placing the conduct just above the mid-range even without a formal low-to-high scale requirement for Commonwealth offences.
- A guilty plea entered on the first day of trial attracted only a 10 per cent discount, consistent with the principle in Xiao v R [2018] NSWCCA 2 that courts should generally specify the discount applied when sentencing federal offenders and should calibrate it to the timing and utility of the plea.
- No remorse was found where the offender's letter addressed only general emotional conduct rather than the specific offending or its impact on the victim.
- Under s 19AC of the Crimes Act 1914 (Cth), a federal sentence not exceeding three years must not include a formal non-parole period; the court must instead impose a release recognizance order, which the District Court distinguished from a non-parole period when structuring the sentence.
- Following Assafiri v R [2007] NSWCCA 159, the court backdated the sentence to account for pre-sentence custody, resulting in immediate release despite a custodial term being imposed.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), s 474.17(1)
- Crimes Act 1914 (Cth), ss 16A, 16E, 17A, 19AC, 20(1)(b)
Cases
- Xiao v R [2018] NSWCCA 2
- Assafiri v R [2007] NSWCCA 159
- R v Hastings & Frederickson (No 1) [2015] NSWDC 114