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District Court 7 June 2021

R v Wood

[2021] NSWDC 520

Sexual offences

Citation: R v Wood [2021] NSWDC 520
Court: NSW District Court
Date: 7 June 2021
Judge: M L Williams SC DCJ

Background

The offender, a man in his early sixties with no prior criminal record, was charged with one count of using a carriage service to transmit communications to a person under the age of 16 with the intent of procuring that person to engage in sexual activity, contrary to s 474.26(1) of the Criminal Code (Cth). The offence carries a maximum penalty of 15 years imprisonment.

The offender had placed an advertisement on a classifieds website seeking a relationship with a teenage boy. Officers from the NSW Police Child Exploitation and Internet Unit responded using an assumed online identity (AOI) that stated it was 14 years old. Over a period of approximately 27 days in October and November 2020, the offender engaged in sexualised online communications with the AOI and made concrete plans to meet, including booking a hotel room and preparing items to give to the intended victim. He was arrested when he attended the arranged meeting location.

The offender pleaded guilty, attracting a 25% discount on sentence. He had been in continuous custody since his arrest on 4 November 2020. His defence submitted that a term equivalent to time already served, combined with supervised release on a recognisance, was the appropriate outcome.

  • What sentence was appropriate for a Commonwealth child procurement offence, having regard to the objective seriousness of the conduct, the offender's subjective circumstances, and the relevant sentencing principles under s 16A of the Crimes Act 1914 (Cth)?
  • What weight should be given to general and specific deterrence, the guilty plea, the absence of a prior criminal record, the offender's rehabilitation prospects, and the fact that the "victim" was a police-operated assumed identity rather than an actual child?
  • Was immediate release on a recognisance, after serving approximately seven months in custody, an appropriate sentencing outcome in the circumstances?

Decision

Williams SC DCJ accepted that the offending was objectively serious. The offender was told at the outset that the AOI was 14 years old, persisted in contact over 27 days, introduced sexual content into the communications, sought to establish a relationship of trust, and took active steps to transition from online contact to a physical meeting. The court noted, by reference to R v Gajjar [2008] VSCA 268, that the absence of a real child victim does not diminish the reprehensibility of the conduct.

The court recognised general deterrence as a primary sentencing consideration for offences of this kind, given the prevalence of the internet as a vehicle for predatory conduct toward children. A sentence of immediate imprisonment was described as ordinarily required for such offences, and the court noted that evidence of prior good character carries limited weight in child sexual offending matters.

On the subjective side, the court took into account the offender's age (61 at the time of sentencing), absence of prior convictions, guilty plea, low assessed risk of re-offending, favourable references, and his willingness to engage with therapeutic intervention. A clinical psychologist's report identified an impulsive personality profile and a complex personal history affecting his psychosexual development. The court also noted that the offender had been threatened and assaulted during his time in custody.

Accepting the defence submission, the court imposed a total term of two years and three months imprisonment, with release after seven months on a recognisance, subject to supervision by Community Corrections Services and conditions including a prohibition on interstate or overseas travel without written permission.

Orders Made

  • The offender was convicted of the offence.
  • A sentence of imprisonment of two years and three months was imposed, commencing 4 November 2020 and expiring 3 February 2023.
  • The offender was to be released after seven months (expiring 3 June 2021) pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), on condition that he enter into a recognisance in the sum of $100, subject to the following conditions:
  • Good behaviour for one year and eight months.
  • Placement under the supervision and guidance of Community Corrections Services for as long as that Service deemed necessary or desirable (not exceeding the term of the order), with an obligation to obey all reasonable directions, including directions to undertake assessment, therapy, treatment, counselling, or urinalysis.
  • No travel interstate or overseas without the written permission of Community Corrections Services.
  • Forfeiture orders were made by consent under s 23ZD of the Crimes Act 1914 (Cth), forfeiting to the Commonwealth: one Nokia mobile phone with memory card; and one HP laptop.

Key Takeaways

  • The District Court confirmed that the absence of a real child victim does not reduce the seriousness of a procurement offence under s 474.26(1) of the Criminal Code (Cth), where the offender communicated with a police-operated assumed identity believing it to be a 14-year-old.
  • General deterrence is a primary sentencing consideration for online child procurement offences, reflecting the legislature's recognition of the internet's role in facilitating predatory conduct and the difficulty of detecting such offending.
  • Prior good character carries limited weight in sentencing for child sexual offences, even where the offender has no criminal record and is otherwise positively regarded.
  • A sentence structured to combine a period of full-time custody with release on a supervised recognisance under s 20(1)(b) of the Crimes Act 1914 (Cth) was available and was applied here, reflecting the offender's low assessed risk of re-offending, guilty plea, and rehabilitation prospects.
  • Subjective factors including age, the psychological profile of impulsivity, a complex personal history, and the experience of being threatened and assaulted in custody were all taken into account, though they did not displace the primacy of deterrence in the sentencing calculus.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 474.26(1)
- Crimes Act 1914 (Cth), ss 16A, 20(1)(b), 23ZD

Cases:
- R v Gajjar [2008] VSCA 268
- Gifford v R [2016] NSWCCA 302
- Moore v R [2018] NSWCCA 26
- R v Fuller [2010] NSWCCA 192
- R v Hizhnikov (2008) 192 A Crim R 69
- Rampley v The Queen [2010] NSWCCA 293