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District Court 29 September 2021

DPP (Cth) v ELLIS

[2021] NSWDC 517

Sexual offencesPublic order & justice offences
CRIME APPEALS PLEA OF GUILTY MULTIPLE ONLINE “PERSONALITIES” THREATS MADE TO PUBLISH IMAGES CYBERBULLYING

Citation: DPP (Cth) v Ellis [2021] NSWDC 517
Court: District Court of New South Wales
Date: 29 September 2021
Judge: Lerve DCJ

Background

The offender, born in March 1998, was sentenced following guilty pleas to three offences of using a carriage service to solicit and transmit child pornography, contrary to s 474.19(1) of the Criminal Code 1995 (Cth). A fourth charge of using a carriage service to menace, harass, or offend (s 474.17(1)) was placed on a Form 1 under s 16BA of the Crimes Act 1914 (Cth) and taken into account on sentence.

The offending arose from the offender's extensive use of fictitious online identities. Over a period from early 2018 to January 2019, he created female personas named "Kaitlyn" and "Jessica" on Xbox, Instagram, and Facebook Messenger, using these identities to interact with two juvenile complainants, MA and JS, who knew the offender in real life. Through both his own accounts and the fictitious personas, the offender solicited and obtained child pornography from the complainants.

The Form 1 offending was particularly serious. The offender threatened to publish intimate images, claimed to be a computer hacker and demonstrated knowledge of private information including home addresses, fabricated the deaths of his fictional personas and blamed the complainants, and on one occasion caused a complainant to fear for his life by falsely suggesting people were outside his home to kill him. Police executed a search warrant in January 2019, seizing 14 electronic devices, and the offender was ultimately charged in January 2020.

  • What sentence was appropriate for three substantive child pornography offences under the Criminal Code 1995 (Cth), each carrying a maximum of 15 years imprisonment?
  • What weight should be given to general deterrence, given the seriousness of the offending and the cyberbullying conduct on the Form 1?
  • How should the offender's diagnosis of Autism Spectrum Disorder (ASD) bear on the sentencing exercise?
  • Was a suspended sentence an appropriate disposition in the circumstances?
  • What discount was warranted for early guilty pleas entered in the Local Court?

Decision

His Honour allowed a 25% discount on the sentence to reflect the early guilty pleas entered in the Local Court and the utilitarian value those pleas provided in facilitating the course of justice.

The court treated general deterrence as a significant sentencing consideration but did not regard it as paramount, given the offender's ASD diagnosis. The diagnosis was relevant to the weight to be given to general deterrence and to the offender's prospects of rehabilitation, which His Honour identified as requiring ongoing support, supervision, and therapeutic intervention.

Having considered the applicable principles from Dinsdale v The Queen and Zamagias, the court determined that an aggregate sentence of three years imprisonment, suspended under s 20(1)(b) of the Crimes Act 1914 (Cth), was appropriate. The court noted expressly that the Form 1 conduct was a very serious example of its type and that, had the s 474.17(1) charge been dealt with as a substantive matter rather than placed on the Form 1, the total sentence would have exceeded three years and suspension would not have been available or appropriate.

Orders Made

  • The offender was convicted on each charge to which he pleaded guilty.
  • Sentenced to a term of imprisonment of three years, the operation of which was suspended on the offender entering a recognizance of $2,000 to be of good behaviour for four years, with the following conditions:
  • Not commit any further offences.
  • Appear for sentence if called upon during the recognizance period for any breach.
  • Submit to supervision by the Department of Community Corrections for two years and comply with all reasonable directions, including participation in any assessment, counselling, treatment, or therapeutic programmes.
  • Not travel outside New South Wales or Australia without written permission from the supervising officer while under supervision.
  • Abstain from all illicit substances.
  • Notify the Registrar of the court of any change of address.

Key Takeaways

  • The District Court confirmed that the Form 1 mechanism under s 16BA of the Crimes Act 1914 (Cth) requires the taking into account of additional offending to have a "real and meaningful" impact on the ultimate sentence, though that impact cannot be equivalent to sentencing on the charge as a substantive count.
  • A diagnosis of Autism Spectrum Disorder is a relevant consideration at sentencing under federal law, capable of moderating the weight given to general deterrence and informing the need for rehabilitation-focused orders.
  • General deterrence remains a significant factor in child pornography and cyberbullying cases, even where an ASD diagnosis is established, but the court held it is not automatically paramount in every such case.
  • Where an offender creates multiple fictitious online identities to manipulate and threaten child victims, courts treating associated conduct on a Form 1 will scrutinise that conduct carefully, and the overall sentence may have been materially heavier had the harassment charge been prosecuted substantively.
  • Early guilty pleas entered at the Local Court stage attracted a 25% numerical discount, reflecting both utilitarian value and the offender's facilitation of the course of justice under s 16A(2)(g) of the Crimes Act 1914 (Cth).

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 474.17(1), 474.19(1)
- Crimes Act 1914 (Cth), ss 3LA, 16A(2)(g), 16BA, 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Betts v R [2015] NSWCCA 39
- Blackett v R [2021] NSWCCA 210
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Brown v R [2014] NSWCCA 215
- Bugmy v The Queen [2013] HCA 37
- Clarke-Jeffries v R [2019] NSWCCA 56
- De Leeuw [2015] NSWCCA 183
- Dinsdale v The Queen (2000) 202 CLR 321
- DPP (Cth) v Beattie [2017] NSWCCA 301
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- DPP (Cth) v Halbisch [2021] NSWDC 306
- DPP (Cth) v Pratten (No. 2) (2017) 94 NSWLR 194
- EG v R [2015] NSWCCA 21
- Greenwood v R [2014] NSWCCA 64
- Hili & Jones v The Queen [2010] HCA 45
- Imbornone v R [2017] NSWCCA 144
- Karout v R [2019] NSWCCA 253; [2020] HCASL 56
- Locke v R (2010) 207 A Crim R 34
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 (Guideline Judgment on Form 1) (2002) 56 NSWLR 146