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District Court 7 October 2021

R v Jones

[2021] NSWDC 713

Sexual offences

Citation: R v Jones [2021] NSWDC 713
Court: District Court of New South Wales
Date: 7 October 2021
Judge: M L Williams SC DCJ

Background

The offender, a man born in 1963, was charged with using a carriage service to procure a person under 16 years for sexual activity, contrary to s 472.26 of the Criminal Code (Cth). The maximum penalty for that offence is 15 years imprisonment. He had no prior criminal history before his arrest on 23 July 2020.

Police from the NSW State Crime Command Child Exploitation Intervention Unit conducted a covert online operation using an assumed online identity (AOI) of a 14-year-old girl. The offender had posted an advertisement online and, after being repeatedly told he was communicating with a 14-year-old, exchanged over 100 messages across multiple platforms over approximately one month. Six of seven communication sessions were initiated by him. A related schedule offence under s 16BA of the Crimes Act 1914 (Cth) covered an earlier period of communications in which he sent an explicit image, discussed sexual acts in detail, and offered money for sexual activity.

At the time of his arrest, the offender was found with a Viagra tablet and $100 in his wallet. He was arrested, participated in a police interview, made admissions, and was subsequently charged. He spent 141 days in pre-sentence custody before being released on strict bail conditions.

  • What was the appropriate sentence for the principal offence under s 472.26 of the Criminal Code (Cth), taking into account the s 16BA schedule offence?
  • Whether the offender's mental health condition, and its potential contribution to the offending, should mitigate the sentence imposed.
  • Whether the time already served in pre-sentence custody was sufficient, such that the offender should be released on a recognisance order rather than serve further fulltime imprisonment.
  • What conditions should attach to any recognisance release order under s 20(1)(b) of the Crimes Act 1914 (Cth)?

Decision

The court accepted the submission by counsel for the offender that the approximately four months already served in pre-sentence custody constituted an appropriate term of fulltime imprisonment, and that the offender should be released on a recognisance order. The court gave significant weight to the offender's previously unblemished character, his guilty plea, his genuine remorse, his low likelihood of re-offending, and his rehabilitative progress.

On the question of mental health, the offender's treating psychologist gave evidence that the offender's decision-making was impaired at the time of the offending. The Crown challenged the diagnosis, but the court applied the approach set out in Luque v R [2017] NSWCCA 226 and related authorities. Under that approach, a sentencing court should not treat evidence of mental health conditions in an unduly technical or restrictive way, and need not find a direct causal link between the condition and the offending for the condition to operate as a mitigating factor. The court found the psychologist's evidence, along with corroborating medical records dating back to 2014, supported treating the offender's mental health as a mitigating consideration.

The court also took into account the particularly harsh nature of the offender's pre-sentence custody, which occurred during the COVID-19 pandemic. The offender gave evidence that the court accepted without hesitation, describing it as heartfelt and compelling, and the court was satisfied that he displayed genuine remorse and an appreciation of the gravity of his conduct. Comparable cases and sentencing statistics were considered as a broad guide, noting that approximately 19% of comparable cases resulted in no term of imprisonment at all.

Orders Made

  • The offender was convicted of the principal offence.
  • Taking into account the s 16BA schedule offence, a sentence of 12 months imprisonment was imposed, commencing 7 June 2021.
  • Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the offender was released forthwith on a recognisance in the sum of $100, with the following conditions:
  • Good behaviour for 8 months.
  • Supervision and guidance by Community Corrective Services for the duration of the order, including compliance with all reasonable directions such as treatment, counselling, or urinalysis.
  • No interstate or overseas travel without the permission of a Community Corrections Officer.
  • Participation in the mental health treatment plan outlined by the treating psychologist or as directed by Community Corrections.
  • Reporting by telephone to the Officer in Charge at Gosford CCS by 5pm on 14 October 2021.
  • The offender's Apple iPhone 11 was forfeited to the Commonwealth pursuant to s 23ZD of the Crimes Act 1914 (Cth).

Key Takeaways

  • Under the sentencing framework confirmed in Luque v R and related authorities, a sentencing court does not need to establish a direct causal link between an offender's mental health condition and the offending before that condition can operate as a mitigating factor. The condition may, for example, reduce moral culpability or indicate that the offender is not an appropriate vehicle for a heavy deterrence-based sentence.
  • A psychologist's expert opinion should not be discounted merely because the Crown challenges the diagnosis, particularly where corroborating medical records support the broader history of mental health difficulties.
  • The conditions of pre-sentence custody, including those arising from the COVID-19 pandemic, are relevant sentencing considerations and may increase the weight given to time already served.
  • Sentencing statistics in comparable cases serve only as a broad guide or yardstick rather than a determinative benchmark. In this case, the District Court noted that approximately 19% of comparable proceedings resulted in release without any term of imprisonment.
  • Where an offender demonstrates genuine remorse, good character, a low risk of re-offending, and meaningful rehabilitative progress, a court may find that pre-sentence custody already served represents sufficient fulltime imprisonment, with ongoing supervision conditions attached to a recognisance order.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 472.26
- Crimes Act 1914 (Cth), ss 16BA, 20(1)(b), 23ZD
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)

Cases:
- Luque v R [2017] NSWCCA 226
- Barbieri v R [2016] NSWCCA 295
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Devaney v R [2012] NSWCCA 285
- DPP (Cth) v Singh [2017] VSCA 146
- R v Fuller [2010] NSWCCA 192