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District Court 8 October 2021

R v Pedersen

[2021] NSWDC 535

Sexual offences
CRIMINAL LAW SENTENCE 16BA SCHEDULE GROOMING COOPERATIVE WITH POLICE ISOLATED OFFENDING

Citation: R v Pedersen [2021] NSWDC 535
Court: District Court of NSW
Date: 8 October 2021
Judge: Berman SC ADCJ

Background

The offender, a 59-year-old man, pleaded guilty to using a carriage service to groom a person he believed to be a 14-year-old girl for sexual activity, contrary to section 474.27.1 of the Commonwealth Criminal Code. That offence was committed on 14 July 2020 and carried a maximum penalty of 15 years imprisonment. A second offence of using a carriage service to transmit an indecent communication to a person he believed to be under 16, committed on 3 April 2020, was taken into account on a schedule at sentencing.

In both instances, the offender had been communicating not with a child but with an undercover police officer. During the April offence, the offender asked sexual questions and made explicit comments to the person he believed was a 14-year-old girl. The July offence was considerably more serious: the offender, while on a work call, instructed the person he believed to be a child to masturbate, offered to come to her location, and indicated he was simultaneously engaging in sexual self-stimulation.

Because the offences were committed after 23 June 2020, the sentencing proceeded under a Commonwealth legislative framework that presumes offenders convicted of child sex offences will serve actual imprisonment, unless exceptional circumstances are established.

  • Whether exceptional circumstances existed under section 20(1)(b)(ii) and (iii) of the Commonwealth Crimes Act, so as to permit immediate release rather than a mandatory period of actual imprisonment.
  • Whether an Intensive Correction Order (ICO) was available as a sentencing option under section 67 of the NSW Crimes (Sentencing Procedure) Act, given that the actual victims of the communications were adult police officers rather than children under 16.
  • What sentence was appropriate given the limited sentencing options available.

Decision

On the ICO question, the offender argued that because his actual communications were with adult police officers, there was no "victim under the age of 16" within the meaning of the prescribed sexual offence definition in section 67(2), and therefore an ICO was not prohibited. The District Court rejected this submission. Section 67(1)(g) of the Crimes (Sentencing Procedure) Act separately excludes ICOs for offences that include an intention to commit an offence against a victim under 16. Because the offender believed he was communicating with a 14-year-old girl and intended to commit the section 474.27.1 offence against such a person, the exclusion applied. An ICO was therefore unavailable.

On exceptional circumstances, the court considered several factors cumulatively: the offender's cooperation with police, his isolated and contained offending with no evidence of attempts to resume contact, his genuine rehabilitation (supported by psychological evidence), and the significant financial and mental health impact that full-time imprisonment would have on his family. The court did not resolve whether any one of those factors individually would suffice; rather, it held that together they established exceptional circumstances.

The court was candid about the constraints it faced. With an ICO unavailable and exceptional circumstances established, the sentencing choice was between immediate release (acknowledged as inadequate) and full-time imprisonment (which the court considered manifestly excessive). The court stated plainly that had an ICO been available, it would have imposed one with significantly punitive conditions. The legislative gap between the two available options produced, in the court's own words, an inadequate sentence.

Orders Made

  • The offender was sentenced to 2 years imprisonment, with immediate release upon entering into a recognizance of $5,000 (without security).
  • Conditions of the recognizance included:
  • Good behaviour for 4 years
  • Continued psychological treatment for as long as clinically beneficial
  • Supervision by a probation officer and compliance with reasonable directions
  • No interstate or overseas travel without written permission of the supervising officer
  • Participation in treatment or rehabilitation programs as directed
  • Reporting to the Hornsby office of Community Corrections within 7 days

Key Takeaways

  • Under section 20(1)(b)(ii) and (iii) of the Commonwealth Crimes Act, offenders convicted of Commonwealth child sex offences committed after 23 June 2020 face a legislative presumption of actual imprisonment, which can only be displaced by demonstrating exceptional circumstances.
  • Section 67(1)(g) of the NSW Crimes (Sentencing Procedure) Act excludes ICOs not only where a child was an actual victim, but also where the offender intended to commit the relevant offence against a person under 16, even if the actual recipient was an adult police officer.
  • Exceptional circumstances need not be established by any single factor in isolation; the District Court held that a combination of factors, including cooperation with police, genuine rehabilitation, isolated offending, and serious family impact, can collectively satisfy the threshold.
  • The District Court expressly acknowledged that the sentence imposed was inadequate, attributing this outcome to the statutory gap created by the unavailability of an ICO and the binary choice between immediate release and what it regarded as a manifestly excessive period of full-time custody.
  • Where the only available sentencing options are both unsatisfactory, a sentencing court may feel compelled to choose the lesser inadequacy, and the judgment illustrates how the interaction of Commonwealth and State sentencing legislation can produce outcomes the court itself regards as sub-optimal.

Legislation and Cases Referenced

Legislation:
- Commonwealth Crimes Act (Cth), section 20(1)(b)(ii) and (iii)
- Criminal Code Act 1995 (Cth), section 474.27.1 (using a carriage service to groom a child) and the relevant provision on indecent communications
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 67(1)(b), 67(1)(g), and 67(2)

Cases cited: None cited in the judgment text.