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District Court 19 August 2022

R v Damaso

[2022] NSWDC 473

Sexual offences
SENTENCING

Citation: R v Damaso [2022] NSWDC 473
Court: District Court of New South Wales
Date: 19 August 2022
Judge: Wilson SC DCJ

Background

The offender pleaded guilty to two offences committed on 15 June 2020, the same day he was arrested. The first offence involved recording an intimate image without consent, and the second involved distributing that image without consent, both contrary to the Crimes Act 1900 (NSW).

The offender used his mobile phone to photograph a sexual act involving the victim without her consent. Although he initially deleted the photograph, he subsequently recovered it from his deleted files and uploaded it to a website called "My Naked Selfie" for his own sexual gratification. The photograph received at least five "likes" from other users before police were alerted.

The offender had a prior criminal history involving indecency offences, including two separate incidents of public masturbation in 2014 and 2016. At the time of the current offences he was not subject to conditional liberty, though a separate Community Correction Order for a disclosure breach was imposed shortly after his arrest.

  • The appropriate sentence for recording an intimate image without consent under s 91P(1) of the Crimes Act 1900 (NSW)
  • The appropriate sentence for distributing an intimate image without consent under s 91Q(1) of the Crimes Act 1900 (NSW)
  • Whether a discount should be applied under s 23(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for conduct unlikely to have been detected without the offender's own admissions
  • The objective seriousness of the offending and where it sat on the spectrum of such offences
  • The weight to be given to the offender's subjective circumstances, including a diagnosed borderline personality disorder and admitted pornography addiction

Decision

The District Court rejected the submission that the offences fell at the very lowest end of objective seriousness. His Honour accepted that the conduct caused or was capable of causing shame, embarrassment, and humiliation to the victim, consistent with the legislature's stated rationale when introducing these offences into the Crimes Act in 2017.

The court considered the offender's criminal history of indecency-related conduct. While that history did not operate to aggravate the current offending, it disentitled the offender to any finding of good character or associated leniency.

The Sentencing Assessment Report described the offender as above average risk of re-offending relative to other male sex offenders and suggested a sense of entitlement around sexual gratification. His Honour took into account the offender's diagnosed borderline personality disorder, his admitted pornography addiction, and the availability of community-based treatment programs that might reduce the risk of reoffending.

The court declined to impose a term of imprisonment, instead making Community Correction Orders for both offences. His Honour found that community-based supervision, combined with rehabilitation conditions and community service work, was the appropriate sentencing outcome in the circumstances.

Orders Made

  • Count 1 (recording an intimate image without consent, s 91P(1)): Community Correction Order for two years, commencing 19 August 2022 and expiring 18 August 2024, with standard conditions and a rehabilitation or treatment condition requiring participation in any program directed by Community Corrections.
  • Count 2 (distributing an intimate image without consent, s 91Q(1)): Community Correction Order for three years, commencing 19 August 2022 and expiring 18 August 2025, with standard conditions and a community service work condition requiring 150 hours of community service over the three-year period.
  • The offender was directed to contact Wyong Community Corrections within seven days of the orders being made.
  • A backup charge of assault occasioning actual bodily harm was withdrawn and dismissed.

Key Takeaways

  • The District Court held that offences of recording and distributing intimate images without consent are not automatically to be treated as falling at the lowest end of objective seriousness; the specific facts of each case must be assessed on their own terms.
  • Prior criminal history involving indecency may not aggravate current offending directly, but can disentitle an offender to a finding of good character that might otherwise attract leniency.
  • A diagnosed mental health condition, such as borderline personality disorder, can be a relevant factor in sentencing, particularly where it bears on impulsivity and the availability of treatment in the community.
  • Where prosecution would have been unlikely without the offender's own admissions, this may enliven a discount application under s 23(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The availability of community-based rehabilitation programs for sexual offending is a factor that a sentencing court may weigh in favour of a non-custodial order, particularly where an assessment report identifies those programs as likely to reduce reoffending risk.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 91P(1), 91Q(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 23(2)(b), 166

Cases: No cases were cited in the judgment.