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District Court 15 February 2021

R v Darke

[2021] NSWDC 377

Sexual offences
CRIMINAL LAW SENTENCE 16BA SCHEDULE CHILD INTERNET EXPLOITATION UNIT PERSISTENT DEPRESSIVE DISORDER ALCOHOL USE DISORDER

Citation: R v Darke [2021] NSWDC 377
Court: District Court of New South Wales
Date: 15 February 2021 (sentence correction; original sentence 11 December 2020)
Judge(s): M Adams ADCJ

Background

The offender faced sentence for attempting to procure a child to engage in sexual activity with another person outside Australia, contrary to s 272.14(1) of the Criminal Code (Cth). Two connected offences of using a carriage service to solicit and transmit child pornography material were also before the court, to be taken into account under a Schedule pursuant to s 16BA of the Crimes Act 1914 (Cth). All offending occurred between 5 August and 11 September 2016.

The offending involved a prolonged series of Facebook Messenger exchanges, photographs, and video calls between the offender, located in New South Wales, and a mother in Canada whose daughter was aged approximately nine to eleven at the time. The offender persistently coached the mother toward facilitating sexual access to her daughter, solicited sexual images of the girl, and caused the mother to show him her sleeping daughter's naked behind during a video call. The child herself had no awareness of the sexual nature of the communications. The mother ultimately ended the contact and reported the matter to Canadian authorities; she was subsequently convicted of a related offence in Canada and received a non-custodial sentence.

The offender was arrested in February 2018 following an investigation by the Child Internet Exploitation Unit of the NSW Police. He remained largely in custody from arrest through to sentencing, with a brief period on bail in late 2019. A plea of guilty to the index offence was entered on 11 February 2020, the day after the listed trial date.

  • What utilitarian discount applied to a guilty plea entered the day after the listed trial date, where earlier negotiations had failed and a legal argument about the scope of s 272.14 had been raised
  • Whether the scope of s 272.14 of the Criminal Code (Cth) extended to conduct directed at a parent rather than directly at the child
  • What sentence was appropriate, having regard to the objective seriousness of the offending, the offender's personal circumstances (including acquired brain injury, depressive disorder, alcohol use disorder, and personality disorder), and his conditions in custody
  • Whether parity with the sentence imposed on the Canadian mother warranted any reduction in the sentence

Decision

The court held that a utilitarian discount of 10% was appropriate. The plea was entered on the day following the listed trial date, and although civilian witnesses from Canada had been excused, the court was not persuaded that this generated significant utilitarian value. The court also rejected the proposition that a genuine legal dispute about the reach of s 272.14 explained the timing, finding the provision clearly covered conduct directed at a parent with the aim of procuring sexual activity involving the child.

On objective seriousness, the court characterised the offending as serious. The conduct involved persistent and calculated attempts over several days to persuade a vulnerable mother to facilitate sexual abuse of her young daughter, including explicit coaching and the solicitation and receipt of sexualised imagery. The single image received, while offensive in context, was assessed as being at the lowest level of indecency, and there was no evidence the offender distributed it to others.

The court gave weight to the offender's significant personal circumstances, including a Persistent Neurocognitive Disorder arising from an acquired brain injury, Persistent Depressive Disorder, Alcohol Use Disorder, and a Personality Disorder. The offender was held in strict protection in custody, a circumstance the court accepted made his conditions of imprisonment harder than those of an ordinary prisoner. These factors mitigated the sentence to a degree, though they did not displace the need for a meaningful term.

The court declined to apply any parity reduction by reference to the sentence imposed on the Canadian mother. The court identified four material distinctions: the offender had instigated the conduct and persisted with it; the mother had brought the communications to an end; the Canadian offence of which she was convicted was substantially less serious; and the detrimental effect on her daughter of a custodial sentence had been a relevant factor in her own sentencing. No principled basis for parity arose from those differences.

Orders Made

  • The offender sentenced to 3 years imprisonment, commencing 15 January 2020 and expiring 14 January 2023
  • Non-parole period of 2 years, with eligibility for release on parole on 14 January 2022
  • Released after serving 2 years on a recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), on the following conditions: security of $1 without sureties; and good behaviour for 3 years upon release
  • Forfeiture order made in respect of the computer and mobile telephone seized by police
  • Sealed envelope not to be opened without further order

Key Takeaways

  • The District Court confirmed that s 272.14(1) of the Criminal Code (Cth) covers attempted procurement of a child for sexual activity directed through an intermediary (here, the child's parent) rather than through direct contact with the child.
  • A guilty plea entered the day after the listed trial date attracted only a 10% utilitarian discount, even where arrangements had been made to limit the number of witnesses required at trial.
  • Parity with a co-offender's sentence does not automatically reduce a sentence where the co-offender's role, culpability, and personal circumstances differ materially from those of the person being sentenced.
  • Conditions of custody, including placement in strict protection, can be taken into account as a mitigating factor at sentence, reflecting that imprisonment is experienced more harshly in those circumstances.
  • Serious neurocognitive and psychiatric conditions, while relevant mitigating factors, do not displace the need for a meaningful custodial term for offending of this nature.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 272.14(1), 474.19(1)(a)(iii) and (iv)
- Crimes Act 1914 (Cth), ss 16BA, 19AHA, 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Criminal Code of Canada, s 172

Cases: No cases were cited in the text provided.