Citation: R v Danielle Pana (a pseudonym) [2021] NSWDC 798
Court: District Court of New South Wales
Date: 19 October 2021
Judge: Judge Sutherland SC
Background
The offender (referred to by the pseudonym Danielle Pana) was 28 years old at the time of her offending. She was the mother and primary carer of three young children aged 4, 5 and 8. After meeting a man (referred to as Robert Sloan) online in early 2018 and entering an intimate relationship with him, she began a course of conduct directed at grooming her own children for sexual purposes and producing child abuse material involving them.
The offending took place over a comparatively short period in late 2019, primarily in Sydney. The offender photographed and filmed her children in sexual circumstances, transmitted that material to Sloan in Melbourne, and ultimately committed acts of sexual intercourse and sexual touching against at least one of her children. Text messages exchanged between the offender and Sloan formed a significant part of the agreed facts before the court.
The offender pleaded guilty to 14 substantive charges, spanning grooming, production and dissemination of child abuse material, possession of child abuse material, and sexual intercourse with a child under 10. The victims were her three biological children.
Legal Issues
- The appropriate individual and aggregate sentences for 14 offences of varying objective seriousness involving three child victims
- The weight to be given to the offender's subjective circumstances, including evidence of domestic violence suffered at the hands of the co-offender (applying the principle in R v Bugmy)
- Whether the offender's moral culpability was reduced by any factor, including the influence of the co-offender
- How to apply the parity principle given that the co-offender Sloan had been sentenced separately in the Victorian County Court
- The objective seriousness of each category of offence, including the most serious charge of sexual intercourse with a child under 10
Decision
Judge Sutherland SC assessed the offending as extremely serious across all categories. The grooming offences involved deliberate steps to normalise sexual conduct in the presence of very young children, including exposing an 8-year-old to explicit sexual videos. The production and dissemination offences involved the creation and sharing of child abuse material depicting the offender's own children, transmitted to Sloan for mutual sexual gratification. The charge of sexual intercourse with a child under 10 was identified as among the most gravely serious offences in the criminal calendar.
The court considered the offender's subjective circumstances carefully. Evidence indicated she had experienced domestic violence at the hands of Sloan. Applying Bugmy, the court acknowledged that background disadvantage and exposure to violence can reduce moral culpability to some degree, but found these factors did not substantially diminish the gravity of the conduct. The court noted the offender was not a passive participant: the text messages disclosed that she actively initiated discussion about the children and expressed her own interest in the activity.
On parity, the court examined the sentence imposed on Sloan in the Victorian County Court and was satisfied that the sentences it proposed were not inconsistent with that outcome, given the differing roles of each offender and the different charges each faced.
The court imposed an aggregate sentence, reflecting the totality principle, of 10 years imprisonment with a non-parole period of 6 years, commencing from 7 January 2020, the date the offender entered custody.
Orders Made
- Aggregate sentence of 10 years imprisonment
- Non-parole period of 6 years
- Sentence to commence 7 January 2020
- Non-parole period to expire 6 January 2026
- Head sentence to expire 6 January 2030
Key Takeaways
- The District Court treated sexual intercourse with a child under 10 as one of the gravest offences in the criminal law, attracting a maximum penalty of life imprisonment, and imposed a substantial sentence reflecting the profound breach of trust involved when the perpetrator is the child's own parent.
- Grooming offences under s 66EB(3) of the Crimes Act 1900 (NSW), which carry a maximum of 12 years and a standard non-parole period of 5 years, encompassed deliberate acts such as exposing a child to explicit sexual material as a precursor to further sexual activity.
- A co-offender's influence, including coercive or violent conduct, may be considered in assessing moral culpability under the Bugmy principle, but will not necessarily result in significant mitigation where the evidence shows the offender was an active and willing participant.
- In applying the parity principle, sentencing courts examine the relative roles and charges of co-offenders tried in different jurisdictions; sentences need not be identical but must not produce an unjustifiable disparity.
- Pseudonymisation of the offender's name was ordered not to protect the offender, but to prevent the indirect identification of the child victims, who were her biological children, in accordance with statutory publication restrictions.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 66A(1), 66DA, 66EB(3), 91G(1)(a), 91H(2)
- Criminal Code Act 1995 (Cth): s 474.22(1)(a)(iv)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- R v Bugmy (2013) 249 CLR 571
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- DPP v Robert Sloan (a pseudonym) [2021] VCC 209
- Ibbs v R (1987) 163 CLR 447
- R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
- R v Gavel (2014) 239 A Crim R 469
- R v Imbornone [2017] NSWCCA 144
- Minehan v R (2010) 201 A Crim R 243
- BJW v R [2000] NSWCCA 60
- R v Brown [2014] NSWCCA 335
- R v Nelson [2016] NSWCCA 130
- R v Gent [2005] NSWCCA 370
- R v JAH [2006] NSWCCA 250
- R v Davis [1999] NSWCCA 15
- R v Holder & Johnston (1983) 3 NSWLR 245
- R v JS [2018] NSWDC 342
- R v AGR (NSWCCA, unreported, 24 July 1998)
- R v Hudson (NSWCCA, unreported, 30 July 1998)
- R v Dent (NSWCCA, unreported, 14 March 1991)