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District Court 14 June 2022

R v LL

[2022] NSWDC 208

Sexual offences
SENTENCE COMMONWEALTH OFFENDING FEMALE OFFENDER MALE VICTIM PROCURING NUMEROUS TEXT MESSAGES

Citation: R v LL [2022] NSWDC 208
Court: District Court of New South Wales
Date: 14 June 2022
Judge(s): Lerve DCJ

Background

The offender, a woman aged 49 at the time of the offending, was charged with three counts arising from her conduct toward a 15-year-old male victim in a small rural community in southern New South Wales. The offender had known the victim and his family through local community activities, and her daughter had previously been in a relationship with the victim.

Between late December 2019 and early January 2020, the offender engaged in a sustained and escalating series of sexually explicit communications with the victim over Facebook Messenger and SMS, totalling thousands of messages. Those communications formed the basis of Count 1: using a carriage service to procure a person under 16 to engage in sexual activity, contrary to s 474.26(1) of the Criminal Code 1995 (Cth). Count 2 charged her with using a carriage service to transmit child abuse material, contrary to s 474.22(1) of the Criminal Code 1995 (Cth). Count 3 charged intentional sexual touching of a person aged between 10 and 16, contrary to s 66DB(a) of the Crimes Act 1900 (NSW).

The offender pleaded not guilty to Counts 1 and 3, and guilty to Count 2 on the first day of trial. A jury returned verdicts of guilty on all three counts on 7 December 2021. The matter then proceeded to sentencing.

  • What factual findings should be made for sentencing purposes where the matter proceeded to trial?
  • What weight should be given to the guilty plea entered on the day of trial (Count 2), including its utilitarian value?
  • What is the appropriate sentence across three counts, having regard to the applicable Commonwealth and NSW sentencing frameworks?
  • How should hardship to third parties (the offender's daughters) and the offender's personal circumstances be weighed in sentencing?
  • What is the correct approach to totality and the structure of an aggregate sentence across Commonwealth and State offences?

Decision

Fact-finding at sentence: Because the matter proceeded to trial, Lerve DCJ was required to determine the facts for sentencing. Applying the principles in R v Olbrich and Filippou v The Queen, the court could only take facts adverse to the offender into account if established beyond reasonable doubt, while facts in the offender's favour needed to be proved on the balance of probabilities. The court accepted the Commonwealth's submissions on the facts but did not accept its characterisation of the overall seriousness of the offending.

The guilty plea discount: The plea of guilty to Count 2 was entered on the day of trial, though the prosecution had been given advance notice. Because evidence was still placed before the jury on that count, the court assessed the utilitarian value of the plea as warranting a discount of only 5%, consistent with the positions advanced by both parties.

Hardship to third parties: The court took the hardship to the offender's daughters into account when determining the length of the overall sentence. However, it declined to give that consideration further weight when determining the ratio of actual custody to the total sentence, on the basis that doing so would amount to double-counting.

Sentencing structure: For the State offence (Count 3, intentional sexual touching), the court imposed a Community Corrections Order of 15 months, noting that supervision was unnecessary given the concurrent period of actual custody. For the two Commonwealth counts, the court imposed an aggregate sentence of 3 years, with the offender directed to be released after serving 18 months upon entering a recognizance to be of good behaviour for 3 years. The recognizance was subject to conditions including supervision, participation in treatment programmes, and restrictions on travel.

Orders Made

  • Count 3: Convicted; released on a Community Corrections Order for 15 months, conditioned on committing no further offences and appearing for sentence on any breach. No supervision order imposed (subsumed by the period of actual custody).
  • Counts 1 and 2: Convicted; sentenced to an aggregate sentence of 3 years imprisonment.
  • Directed to be released after serving 18 months (14 June 2022 to 13 December 2023) upon entering a recognizance of $1,000 to be of good behaviour for 3 years, subject to conditions including:
  • Good behaviour
  • Supervision by the Department of Community Corrections for up to 2 years, with compliance with all reasonable directions
  • No interstate or overseas travel without written permission of the supervising officer
  • Participation in treatment or rehabilitation programmes as recommended
  • Notification to the Court Registrar of any change of address
  • The offender's black Samsung mobile phone forfeited to the Commonwealth pursuant to s 23ZD of the Crimes Act 1914 (Cth), on application by the Director of Public Prosecutions.

Key Takeaways

  • Where a matter proceeds to trial, the sentencing court must determine facts for itself: facts adverse to the offender require proof beyond reasonable doubt, while matters advanced in the offender's favour must be established on the balance of probabilities, following Olbrich and Filippou.
  • A guilty plea entered on the first day of trial, even where notice was provided to the prosecution in advance, attracted only a 5% utilitarian discount where the evidence was still placed before the jury and a verdict was still required.
  • Hardship to third parties (here, the offender's children) is a legitimate sentencing consideration going to the length of the overall sentence, but the District Court held it would constitute double-counting to give that factor additional weight when calculating the non-parole or release period ratio.
  • Commonwealth and State offences sentenced together require the court to apply both the Commonwealth framework (including s 16A of the Crimes Act 1914 (Cth)) and the NSW framework, with careful attention to the totality principle.
  • Using a carriage service to send thousands of sexually explicit messages to a 15-year-old victim over a sustained period, by an adult in a position of familiarity and community trust, was treated as serious offending warranting a custodial sentence, notwithstanding mitigating personal circumstances.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 474.22(1), 474.26(1)
- Crimes Act 1914 (Cth), ss 16A, 19AC, 20(1)(b), 23ZD
- Crimes Act 1900 (NSW), s 66DB(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8

Cases:
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Barbaro & Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Hili & Jones v The Queen [2010] HCA 45
- Dinsdale v The Queen (2000) 202 CLR 321
- DPP (Cth) v Beattie [2017] NSWCCA 301
- Mbele v R [2021] NSWCCA 182
- Karout v R [2019] NSWCCA 253
- R v Delzotto [2022] NSWCCA 117
- R v De Leeuw [2015] NSWCCA 183
- Brown v R [2014] NSWCCA 215
- Gifford v R [2016] NSWCCA 302
- Adamson v R [2015] VSCA 194
- Clarkson v The Queen; E J A v The Queen (2011) 32 VR 361; [2011] VSCA 157
- DPP (Cth) v Halbisch [2021] NSWDC 306
- R v Gajjar (2008) 192 A Crim R 76
- R v Asplund [2010] NSWCCA 316
- R v Fuller [2010] NSWCCA 192
- Martin v R [