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District Court 9 July 2021

DPP (Cth) v HALBISCH

[2021] NSWDC 306

Sexual offences
COMMONWEALTH OFFENDING PROCURE MANNER FORM TAKEN INTO ACCOUNT IMPORTANCE OF GENERAL DETERRENCE

Citation: DPP (Cth) v Halbisch [2021] NSWDC 306
Court: District Court of New South Wales
Date: 9 July 2021
Judge: Lerve DCJ

Background

The offender, a man aged 27 to 28 at the time of offending, used gaming and social media platforms to contact a girl who was 7 years old. He communicated with the victim through the "BigO" and "Discord" applications in March 2019, concealing his identity using online aliases. Over the course of one afternoon, he solicited photographs of the victim in states of undress and directed her to engage in an act of digital self-penetration during a video call.

The matter proceeded to sentence in the Wagga Wagga District Court on two charges. The first, a procuring offence contrary to s 474.26(1) of the Criminal Code 1995 (Cth), was the substantive charge for sentence. The second, a soliciting offence, was placed on a Form pursuant to s 16BA of the Crimes Act 1914 (Cth) and taken into account in the sentencing exercise. Both offences carried a maximum penalty of 15 years imprisonment and/or 900 penalty units.

The offender pleaded guilty in the Local Court, cooperated with police in a second interview, and was assessed by a psychologist. At the sentence hearing he gave evidence expressing remorse and accepting the inevitability of imprisonment.

Legal Issues

  • What was the appropriate objective seriousness of the procuring offence and the soliciting offence on the Form?
  • What weight should be given to the offender's guilty plea, cooperation with police, remorse, prior good character, and personal background?
  • Whether the victim's mother could provide a victim impact statement and, if so, the extent to which that statement could be used in sentencing?
  • What role does general deterrence play in sentencing for online child sexual offending?
  • What was the appropriate total sentence and non-parole period, including the ratio of parole to actual custody?

Decision

Objective seriousness of the procuring offence

The court assessed the procuring offence as sitting at the mid-range of seriousness, but in the lower half of that range (at [37]). The victim was a real child aged 7, and the offender must have been aware of her young age from photographs she had sent him (at [29]). The communications involved sexually explicit instructions to the child to engage in digital self-penetration, delivered over approximately 20 minutes (at [31]). Aggravating features included the use of online aliases to conceal identity and the grossly indecent nature of the requests. Mitigating features included limited planning, no inducements, no prior relationship, and the conduct being confined to a single day with no evidence of intent to proceed further (at [35]).

The soliciting offence on the Form

The soliciting offence was found to be a quite serious example of that type of offending, given the victim's age and the nature of the material sought (at [30]). The material actually obtained was limited, but the offender also requested images depicting the victim's genital area without underwear. The victim being a real child, rather than an assumed identity, made the matter more serious (at [30]).

Victim impact statements

The court granted leave for the victim's mother's victim impact statement to be received, principally because of the victim's very young age (at [52]). However, the court limited the use of both statements to the principles stated in R v Tuala [2015] NSWCCA 8, finding that without a report from a medical or mental health professional, the statements could not be used to establish clinical harm beyond what the court could accept from the statements themselves (at [53]-[56]). The court accepted that the offending had long-lasting and significant adverse effects on the victim, including hyper-vigilance, and noted that the victim has Autism Spectrum Disorder, of which the offender was unaware (at [56]).

Subjective factors and general deterrence

The offender's prior good character was given limited weight given the nature of the offending (at [42]). The court found genuine remorse and contrition based on the offender's own evidence at the sentence hearing (at [59]), and found on balance that the offender is unlikely to re-offend and has good prospects of rehabilitation, despite psychologists assessing him at average risk (at [89]-[90]). Emotional abuse witnessed in childhood enlivened the Bugmy principles, but only to a limited extent (at [66]). Intoxication at the time of offending was not a mitigating factor (at [100]). General deterrence was identified as having a significant, if not primary, role in sentencing for this type of offending, with the overriding public policy being the protection of children (at [43]-[46]).

Sentence

Starting from 5 years imprisonment, the court applied a 25% discount for the guilty pleas and cooperation, producing a total sentence of 3 years and 9 months (at [114]). The non-parole period was set at 2 years and 3 months, representing 60% of the total sentence in actual custody, to allow a meaningful parole period for supervision and treatment as recommended by the psychologist (at [74], [114]-[117]).

Orders Made

  • Total term of imprisonment of 3 years and 9 months, commencing 24 June 2021.
  • Non-parole period of 2 years and 3 months, expiring 23 September 2023.
  • Parole period from 24 September 2023 to 23 March 2025.
  • Recommendation that release on parole be subject to supervision by the Department of Community Corrections.
  • Recommendation that the offender undertake appropriate sex offender programmes while in custody.
  • Direction that a copy of the psychologist's report be annexed to the warrant forwarded to the Department of Corrective Services.
  • Recommendation, if possible, that the offender be detained at Junee Correctional Centre.

Key Takeaways

  • The District Court confirmed that a parent or guardian's victim impact statement may be received under s 16AAAA of the Crimes Act 1914 (Cth) where the primary victim is very young, but the use of such statements remains limited by the principles in R v Tuala: without a supporting report from a qualified medical or mental health professional, the court cannot use the statements to establish clinical harm beyond what the documents themselves disclose (at [52]-[56]).

  • General deterrence carries a significant, if not primary, weight in sentencing for online child sexual offending, with the overriding public policy rationale being the protection of children, regardless of the individual offender's subjective circumstances (at [43]-[46]).

  • Prior good character attracts only limited weight in sentencing for child sexual offending of this kind, a proposition accepted by both parties and supported by established appellate authority (at [42]).

  • Where a victim is a real child rather than an assumed identity, that feature increases the objective seriousness of both procuring and soliciting offences under the Criminal Code 1995 (Cth) (at [30]-[31]).

  • A meaningful parole period is appropriate where the offender is a first-time prisoner requiring post-release supervision and treatment, and the sentencing court should provide adequate reasons for the ratio it selects between the non-parole period and the total sentence, consistent with R v Lamella [2014] NSWCCA 122 (at [74]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act , 1999
- Criminal Code 1995 (Cth)
- Criminal Code 1995 ( Cth)
- Crimes Act 1914 (Cth)

Cases
- Barbaro & Zirilli v The Queen [2014] HCA 2
- Bourke v R [2010] NSWCCA 22
- Bugmy v The Queen [2013] HCA 37
- DPP (Cth) v Colaiocovo [2021] NSWDC 218
- EG v R [2015] NSWCCA 21
- Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hinton [2002] NSWCCA 405
- McNeice v The Queen [2018] VSCA 186
- R v Alou [2018] NSWSC 221
- R v Asplund [2010] NSWCCA 316
- R v De Leeuw [2015] NSWCCA
- R v Fuller [2010] NSWCCA 192
- R v Gajjar (2008) 192 A Crim R 76
- R v Hiznikov (2008) 192 A Crim R 69
- R v Kebriti [2019] VSCA 275
- R v Khan [2019] NSWSC 594
- R v Lamella [2014] NSWCCA 122
- R v McKeay [2020] NSWDC 408
- R v Porte [2015] NSWCCA 174
- R v Poynder (2007) 171 A Crim R 544
- R v Tuala [2015] NSWCCA 8
- R v Zerafa [2013] NSWCCA 222
- The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146
- Valentine v R [2020] NSWCCA 116
- The Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No. 1 of 2002 (2002) 56 NSWLR 146
- R v Lamella [2014] NSWCCA 122