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District Court 24 June 2021

R v Amson

[2021] NSWDC 280

Sexual offences
CRIMINAL LAW SENTENCE FEDERAL OFFENCE OBJECTIVE GRAVITY WHETHER OFFENDER GENUINELY REMORSEFUL APPROPRIATE DISCOUNT FOR GUILTY PLEA ­

Citation: R v Amson [2021] NSWDC 280
Court: District Court of New South Wales
Date: 24 June 2021
Judge: Abadee DCJ

Background

The offender pleaded guilty to using a carriage service to groom a person believed to be under 16 years of age, contrary to s 474.27(1) of the Criminal Code (Cth). The offence carries a maximum penalty of 12 years' imprisonment. The plea was entered on the first day of the scheduled trial in May 2021.

The offending occurred between March and May 2020, during the COVID-19 pandemic. NSW Police conducted a covert online investigation through the Child Exploitation Internet Unit, using a fictitious online identity presenting as a 13 to 14 year old female. It was the fictitious persona, not the offender, who initiated the first contact via Facebook.

Over approximately seven weeks, the conversations escalated from general contact to explicit sexual discussion, including questions about the child's sexual experience, requests that she delete their message history, discussion of a prospective meeting, and the sending of links to underwear items. The offender repeatedly acknowledged the child was underage and stated sexual activity would have to wait until she was older.

  • What was the objective seriousness of the offending, given that the "child" was a fictitious police operative rather than a real child?
  • What weight, if any, attached to the fact that the fictitious child initiated contact rather than the offender?
  • Whether the offender's mental health conditions affected his moral culpability.
  • Whether the offender was genuinely remorseful.
  • What discount was appropriate for the guilty plea, entered on the first day of the trial?
  • What were the offender's prospects of rehabilitation, and what was his risk of reoffending?
  • Whether the offender had been subjected to extra-curial punishment (informal punishment outside the court system) that warranted a reduction in sentence.
  • What was the appropriate balance between punishment, denunciation, deterrence, and the possibility of rehabilitation, given the offender was a registered sex offender?

Decision

Objective seriousness. Abadee DCJ found the offending was of significant objective gravity. The fact that no real child was involved did not substantially reduce culpability, because the offence is directed at protecting children as a class. The conduct escalated considerably over the period and included explicit sexual discussion and steps to arrange a meeting. The court treated these features as aggravating.

Initiation by fictitious child. The judge acknowledged that the fictitious persona initiated first contact, and accepted this was a relevant (though not determinative) consideration. It was not treated as an excuse, but as one contextual factor among many.

Mental health and moral culpability. Psychological and psychiatric evidence was before the court. Abadee DCJ accepted that some mental health conditions were present, but found they did not substantially diminish the offender's moral culpability for this offending, particularly given his awareness throughout the conversations that the conduct was wrong and illegal.

Remorse and guilty plea. The court found the offender's remorse was limited rather than genuine. The guilty plea was entered late, on the first day of the scheduled trial, which attracted only a modest discount. The court also noted the offender was a registered sex offender at the time of the offending, which was treated as an aggravating circumstance. Prospects of rehabilitation were assessed as poor, though not non-existent, and the sentencing judge noted the desirability of the offender receiving appropriate treatment and being subject to parole supervision on release. The submission that time already served (485 days) was sufficient punishment was rejected.

Orders Made

  • The offender was convicted of using a carriage service to groom a person believed to be under 16 years of age between 17 March 2020 and 4 May 2020.
  • Sentenced to 3 years and 2 months' imprisonment, commencing 6 May 2020 and expiring 5 July 2023.
  • Non-parole period of 2 years, 2 months and 19 days, expiring 24 July 2022.
  • The court directed that the psychological and pre-sentence reports be provided to those responsible for supervising the offender, to assist in identifying appropriate treatment.

Key Takeaways

  • Under s 474.27(1) of the Criminal Code (Cth), the fact that the "child" is a fictitious police operative rather than a real child does not substantially reduce the objective seriousness of a grooming offence, because the provision is directed at protecting children as a class.
  • Where contact is initiated by an undercover operative rather than the offender, a sentencing court may treat this as a relevant contextual factor, but it does not operate as a significant mitigant where the conduct subsequently escalated over an extended period.
  • A guilty plea entered on the first day of a scheduled trial attracts only a limited discount; the District Court treated the late timing as bearing directly on the weight given to that plea.
  • Committing a grooming offence while on the sex offenders register is an aggravating factor under the federal sentencing framework.
  • The sentencing court balanced the poor prospects of rehabilitation and the need to protect the community against the value of structured parole supervision, concluding that a period of incarceration beyond time already served was necessary to meet the goals of denunciation, general deterrence, and specific deterrence.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth) s 474.27(1)
- Crimes Act 1914 (Cth) ss 16A, 17A
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Hili v R (2010) 242 CLR 520
- R v Pham (2015) 256 CLR 550
- Xiao v R (2018) 96 NSWLR 1
- Small v R [2020] NSWCCA 216
- DPP v Watson (2016) 259 A Crim R 327
- Meadows v R [2017] VSCA 290
- R v Nahlous (2013) 273 FLR 232
- R v Fuller [2010] NSWCCA 192
- Rampley v R [2010] NSWCCA 293