Citation: R v Lonergan [2022] NSWDC 423
Court: District Court of New South Wales
Date: 21 September 2022
Judge: Abadee DCJ
Background
The appellant, a 50-year-old mortgage broker, pleaded guilty in Wyong Local Court to two offences arising from a deteriorating personal relationship. The first was intentionally distributing an intimate image without consent, contrary to s 91Q(1) of the Crimes Act 1900 (NSW). The second was intimidating the victim with the intention of causing him to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
The offending occurred on 20 June 2022. After the relationship broke down, the appellant sent an intimate image of the victim (which he had previously sent to her consensually) to a third party, in order to prove the nature of their relationship. She also sent a threatening message to the victim. By chance, the third-party recipient never saw the image, having previously blocked the appellant.
The Local Court sentenced the appellant to an 18-month Community Corrections Order for the image offence and a $500 fine for the intimidation offence. The appellant appealed to the District Court on the ground that those sentences were excessive.
Legal Issues
- Whether the Local Court sentences were excessive, warranting intervention on a severity appeal
- Whether a Conditional Release Order (CRO) discharging the appellant without proceeding to conviction under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was available for the image offence, given its classification as a domestic violence offence
- What weight should be given to the appellant's subjective case, including prior good character, absence of prior convictions, remorse, and potential professional consequences
- What objective seriousness attached to each offence
Decision
Abadee DCJ found the image offence fell at the lower end of the range of objective seriousness. Relevant factors included that the image was sent to only one person, it did not identify the victim by face or other distinguishing features, the recipient was already familiar with the victim's intimate features, and the recipient fortuitously never saw it. The intimidation offence was assessed as below the mid-range.
On the subjective case, the appellant had no prior convictions, presented strong character references, and had a background consistent with a mature professional. The judge accepted she showed genuine remorse and that the offending was out of character. The potential impact on her professional standing as a mortgage broker was also noted.
However, Abadee DCJ concluded that the image offence is a domestic violence offence, and that the statutory scheme for domestic violence matters constrains the court's capacity to deal with such offences under s 10(1)(b), which would discharge an offender without proceeding to conviction. Allowing a s 10 order in relation to a domestic violence offence would undermine the function of external bodies, such as professional or licensing authorities, that may need to consider any conviction. Accordingly, the court imposed a CRO under s 9(1), proceeding to conviction but discharging the appellant without further penalty.
For the intimidation offence, the court took a more sympathetic view. The appellant had been in a volatile period, had apparent cause to feel she had been deceived, and had received abusive communications. The court found it appropriate to impose a CRO under s 10(1)(b), discharging her without proceeding to conviction for that offence.
Orders Made
- Offence 1 (distributing intimate image, H89597828/1): Conditional Release Order under s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), proceeding to conviction, for a term of 18 months. Standard conditions applied: no offence to be committed; appearance before the court if called upon.
- Offence 2 (intimidation, H89597828/2): Conditional Release Order under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), without proceeding to conviction, for a term of 18 months. Standard conditions as above. Wholly concurrent with Order 1.
- The severity appeal was allowed and the Local Court sentences were set aside.
Key Takeaways
- A Conditional Release Order without proceeding to conviction under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is not an available sentencing option for a domestic violence offence, because it would pre-empt or interfere with the legitimate function of external bodies assessing an offender's suitability for professional or licensed roles.
- Fortuitous non-receipt of a distributed intimate image, limited distribution to a single person, and the absence of identifying features in the image are all relevant factors in assessing the objective seriousness of an offence under s 91Q(1) of the Crimes Act 1900 (NSW).
- Strong subjective factors, including no prior convictions, genuine remorse, good character, and the absence of a disabling mental condition, remain significant in severity appeals even where they cannot displace the requirement to record a conviction.
- Under s 4A of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the court must consider whether a sentence remains appropriate when the offence is characterised as a domestic violence offence, even where the sentence is at the lenient end of the range.
- The District Court treated the two offences differently at sentence, applying distinct CRO provisions to each, reflecting that a domestic violence classification attaches different sentencing constraints to otherwise similar conduct arising from the same incident.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) s 91Q
- Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 4A, 13(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 9, 10, 98, 99
Cases
- Einfeld v R (2010) 200 A Crim R 1
- Kearsley v R [2017] NSWCCA 28
- R v Beissel (1996) 89 A Crim R 210
- R v Zerafa (2013) 235 A Crim R 265