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5
District Court 23 March 2022

R (Commonwealth) v Nafarette

[2022] NSWDC 225

Sexual offences
CRIME CHILD SEX OFFENCES CHILD ABUSE MATERIAL PENALTIES RECOGNISANCE

Citation: R (Commonwealth) v Nafarette [2022] NSWDC 225
Court: District Court of New South Wales
Date: 23 March 2022
Judge: Buscombe DCJ

Background

The offender pleaded guilty to four Commonwealth offences arising from his possession, solicitation, distribution, and access of child abuse material using a carriage service. Australian Federal Police executed a search warrant at his Blacktown residence on 1 October 2020 and seized a USB device, an iPhone, and a laptop computer. The offender cooperated with police at the time, identifying the location of the material on his phone.

Examination of the seized devices revealed hundreds of images and videos of child abuse material, categorised under the Interpol Baseline Categorisation System. The material depicted prepubescent children, including very young children, subjected to serious sexual abuse. The offender had also used the encrypted messaging application Wickr Me to exchange and solicit child abuse material with other users via Mega.nz and Dropbox links.

Each of the four offences carried a maximum penalty of 15 years' imprisonment. The sentencing proceeded under Part 1B of the Crimes Act 1914 (Cth), which governs the sentencing of Commonwealth offenders.

  • What aggregate sentence was appropriate having regard to the nature and circumstances of four child abuse material offences under the Criminal Code (Cth)?
  • Whether "exceptional circumstances" existed under s 20(1)(b)(ii) of the Crimes Act 1914 (Cth) to warrant releasing the offender immediately on a recognisance, notwithstanding an aggregate term of imprisonment being imposed.
  • What conditions should attach to any recognisance order?

Decision

The court imposed an aggregate sentence of two years and six months' imprisonment, with indicative sentences recorded for each individual offence: 16 months for possession and control using a carriage service (sequence one), 9 months for soliciting child abuse material (sequence two), 12 months for making child abuse material available (sequence three), and 8 months for accessing child abuse material (sequence five).

Despite imposing a term of imprisonment, the court found that exceptional circumstances existed under s 20(1)(b)(ii) of the Crimes Act 1914 (Cth), which is the threshold required to release a Commonwealth offender on a recognisance rather than requiring them to serve the sentence in custody. Section 20 of the Commonwealth Act provides a mechanism distinct from the NSW sentencing regime, allowing immediate release on recognisance where such circumstances are established.

The court's finding of exceptional circumstances appears to have been informed by considerations personal to the offender, including the nature and timing of his cooperation with police, his guilty plea, and other factors relevant under s 16A of the Crimes Act 1914 (Cth). The judgment does not set out those factors in the excerpt provided, but the court's ultimate disposition reflects a conclusion that full-time custody was not warranted in the particular circumstances of this case.

Orders Made

  • Aggregate sentence of 2 years and 6 months' imprisonment imposed, commencing 21 March 2022 and expiring 20 September 2024.
  • Order under s 20 of the Crimes Act 1914 (Cth) that the offender be immediately released on a recognisance of $500 (without surety), on the following conditions:
  • Good behaviour for a period of 3 years.
  • Supervision by a Probation Officer, with compliance with all reasonable directions.
  • No interstate or overseas travel without written permission from the Probation Officer.
  • Participation in treatment or rehabilitation programs as directed, including programs specifically designed for sex offenders.
  • The offender to report to Blacktown Community Corrections within 7 days of the date of sentence.

Key Takeaways

  • The District Court confirmed that s 20(1)(b)(ii) of the Crimes Act 1914 (Cth) permits immediate release on recognisance even where a term of imprisonment is imposed, provided "exceptional circumstances" are established, a threshold that requires a case-specific assessment.
  • Under Part 1B of the Crimes Act 1914 (Cth), NSW District Court sentencing of Commonwealth offenders involves distinct statutory machinery from the NSW sentencing regime, including the s 16A factors and the s 20 recognisance power.
  • An aggregate sentence of two and a half years was imposed across four offences involving the possession, solicitation, distribution, and accessing of child abuse material, each carrying a maximum of 15 years' imprisonment.
  • The Interpol Baseline Categorisation System featured in the agreed facts as the framework for classifying the severity of child abuse material, with Category 1 covering material involving prepubescent children under 13 years of age.
  • Conditions attached to the recognisance included mandatory participation in sex offender treatment programs and supervision by Community Corrections, reflecting the court's approach to managing ongoing risk alongside the rehabilitative purpose of the sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.22A
- Crimes Act 1914 (Cth), ss 16A, 16A(2)(f), 16A(2)(h), 16A(2)(j), 16A(2AAA), s 17A, ss 19(1)-(5), s 20, s 20(1)(b)(ii)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 67

Cases:
- Bullock v The Queen [2016] NSWCCA 131
- BP v The Queen [2010] NSWCCA 159
- Dark v The Queen [2022] NSWCCA 52
- DPP v Beatie [2017] NSWCA 301
- DPP v Joner-Collins [2021] VCC 2046
- DPP v De La Rosa [2010] NSWCCA 194
- R v Dregmans [2022] NSWDC 55
- R v Pederson [2021] NSWDC 535
- R v Tootel [2012] QCA 273