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District Court 1 February 2022

R v Dale

[2022] NSWDC 272

Sexual offences
CRIME PRODUCE CHILD ABUSE MATERIAL POSSESS CHILD ABUSE MATERIAL SENTENCING STATE AND FEDERAL GUILTY PLEA AGE

Citation: R v Dale [2022] NSWDC 272
Court: District Court of New South Wales
Date: 1 February 2022
Judge: Haesler SC DCJ

Background

Following an arrest on unrelated state charges in January 2021, police searched the offender's home and seized four electronic devices. Forensic examination revealed child abuse material across all four devices: two HP laptops, an ASUS laptop, and a Samsung Galaxy mobile phone.

The offender faced five matters for sentence: four Commonwealth offences of using a carriage service to access child abuse material under s 474.221 of the Criminal Code Act 1995 (Cth), and one NSW state offence of producing child abuse material under s 91H(2) of the Crimes Act 1900 (NSW). The production charge arose from the offender photographing or screenshotting material from a separate device and saving those images to his phone. A number of additional offences were taken into account under s 16BA of the Crimes Act 1914 (Cth) and on a Form 1 under NSW law, without separate sentences being imposed.

The offender pleaded guilty in the Local Court. The material spanned multiple devices and covered a course of conduct extending over several years. He was not part of any network and there was no evidence he had distributed the material.

  • What sentences were appropriate across five matters involving both state and Commonwealth child abuse material offences, where additional offences were taken into account on schedules and a Form 1?
  • How should the court apply the 25% guilty plea discount, and what weight should be given to remorse where the evidence of contrition was limited?
  • What role did general and personal deterrence play given the nature and duration of the offending?
  • How should the court account for the offender's age, underlying health conditions, and the conditions of custody during the COVID-19 pandemic?
  • How should the court avoid double-counting where the state production offence and the Commonwealth access offences were closely interrelated?

Decision

Haesler SC DCJ sentenced the offender across all five matters using a synthesis approach to sentencing, consistent with the High Court's guidance in Markarian v The Queen (2005) 228 CLR 357. The additional offences taken into account under the s 16BA schedules and Form 1 did not attract separate penalties but operated to increase the sentences otherwise appropriate, reflecting the persistence and duration of the offending. His Honour was careful not to double-count where the state production offence and the Commonwealth access offences were closely connected.

The court applied a 25% reduction to each sentence for the utilitarian value of the early guilty plea. However, the court found only limited evidence of genuine remorse, noting that the offender appeared to lack the capacity to fully appreciate the impact of his conduct on the real children exploited in producing the material. The court emphasised the principle that every viewing of such material reinforces the original exploitation and abuse, drawing on R v Booth [2009] NSWCCA 89.

General deterrence was identified as a significant sentencing consideration, consistent with the appellate guidance in Minehan v R [2010] NSWCCA 140 and Hutchinson v R [2018] NSWCCA 152. Factors going to objective seriousness included that real children were depicted, that some category 1 material showed adults engaging in sexual intercourse with children, and that the offending persisted over many years. Mitigating features included that all material took the form of still images rather than videos, the total volume was relatively modest compared with other matters before the court, there was no distribution, and the offender was not part of any organised network.

The court took account of the offender's age, underlying health conditions, and the particular hardship of serving a sentence during the COVID-19 pandemic, including the risk of quarantine in custody without adequate medical treatment. Because the offender was serving Commonwealth sentences, he would not qualify for any early release scheme applying to state prisoners, which the court treated as an additional hardship warranting some moderation of the overall sentence.

Orders Made

NSW State Offence (Sequence 23, production of child abuse material):
- Sentence of 1 year and 1 month, commencing 26 January 2022
- Non-parole period of 7 months, expiring 25 August 2022
- Form 1 matter (Sequence 17, possess child abuse material) taken into account

Commonwealth Offences (commencing 26 May 2022):
- Sequence 11: 1 year and 6 months
- Sequence 13 (taking into account s 16BA Schedule, Sequence 18): 9 months
- Sequence 15 (taking into account s 16BA Schedule, Sequence 19): 9 months
- Sequence 22 (taking into account s 16BA Schedules, Sequences 20 and 21): 11 months

Aggregate Commonwealth sentence: 2 years and 2 months from 26 May 2022

Release on recognizance: Direction to release after 1 year (25 May 2023) upon entering a recognizance of $400 under s 20(1)(b) Crimes Act 1914 (Cth), subject to conditions including:
- Good behaviour for 1 year and 2 months
- Supervision and compliance with directions from Community Corrections NSW, including participation in sex offender rehabilitation programs
- Reporting to Community Services NSW within 7 days of release
- No interstate or overseas travel without written permission from a Probation officer

Overall cumulative effect: Total sentence of 2 years and 6 months; minimum term of 1 year and 4 months to be served in custody; earliest release date 25 May 2023.

Forfeiture order under s 23ZD Crimes Act 1914 (Cth): Silver HP laptop, black HP laptop, ASUS laptop, and Samsung Galaxy A520F mobile phone forfeited to the Commonwealth.

Key Takeaways

  • The District Court confirmed that offences taken into account on s 16BA schedules (Commonwealth) or a Form 1 (NSW) do not attract separate sentences, but operate through the synthesis approach to increase the sentence otherwise appropriate, particularly to reflect persistence and course of conduct.
  • Where state and Commonwealth offences are closely interrelated on the same facts, a sentencing court must guard against double-counting, and the Form 1 mechanism serves to clear the slate for those offences without diminishing the overall seriousness of the conduct.
  • General deterrence carries significant weight in child abuse material sentencing, reflecting both the maximum penalties prescribed by Parliament and appellate authority stressing that such offending warrants condemnation and punishment severe enough to deter others.
  • An offender's underlying health conditions and the particularities of custodial conditions, including COVID-19 risks and ineligibility for early release schemes by reason of Commonwealth offences, are recognised sentencing factors that may moderate the sentence imposed.
  • A 25% reduction for an early guilty plea applies on utilitarian grounds regardless of the strength of the prosecution case, though limited evidence of genuine remorse may reduce the additional mitigatory weight accorded to the plea beyond that utilitarian discount.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth), ss 16BA, 20(1)(b), 23ZD
- Criminal Code Act 1995 (Cth), ss 474.191, 474.221

Cases:
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Hoare v The Queen (1989) 167 CLR 348
- Hutchinson v R [2018] NSWCCA 152
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Minehan v R [2010] NSWCCA 140
- R v Booth [2009] NSWCCA 89
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Woods v R [2020] NSWCCA 219
- Xiao v The Queen (2018) 96 NSWLR