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District Court 21 April 2022

R v Pilsbury

[2022] NSWDC 484

Sexual offencesPublic order & justice offences
CRIME RELEVANT FACTORS ON SENTENCE OFFENDING ON ONE NIGHT EARLY GUILTY PLEA ABERRANT BEHAVIOUR OFFENDER OTHERWISE HAS NO CONVICTIONS

Citation: R v Pilsbury [2022] NSWDC 484
Court: District Court of New South Wales
Date: 21 April 2022
Judge(s): Haesler SC DCJ

Background

The offender pleaded guilty to a single charge under s 474.27A(1) of the Criminal Code Act 1995 (Cth) of using a carriage service to transmit indecent communications to a child under 16. The offending occurred over one night, 27 to 28 December 2013. The offender sent 30 messages via Facebook Messenger to a 15-year-old girl, attaching 37 images of adult pornography.

The victim was the daughter of the offender's former partner. She regarded him as her stepfather. The court described the communications as "personal, targeted and intense," and emphasised that the offending constituted a serious breach of trust in an established quasi-parental relationship.

The matter came before the District Court after considerable delay. The victim reported the offending to police in 2019, more than five years after it occurred. When the offender became aware of an arrest warrant, he surrendered to police voluntarily. He entered his guilty plea at the Local Court stage, and the matter was committed to the District Court for sentencing.

  • What was the appropriate sentence for a single, isolated carriage service indecency offence committed against a child by a person in a position of trust?
  • How should a lengthy delay between offending and sentencing affect the sentence?
  • Whether the offender's drug-affected state at the time of the offending could mitigate the sentence.
  • Whether the offending was sufficiently aberrant, and the prospects of rehabilitation sufficiently strong, to justify a non-custodial (or suspended) outcome.
  • How the offender's good character, early guilty plea, and cooperation with authorities should be weighed against the objective seriousness of the offence.

Decision

Objective seriousness. Haesler SC DCJ confirmed the established principle that every act of sexual exploitation of a child using a carriage service is serious. Although the offending was confined to a single night and the victim was 15 (close to the upper age limit of the provision), the 32-year age gap, the quasi-parental relationship, the volume of material transmitted, and the breach of trust all elevated the seriousness of the conduct.

Drug use. The offender claimed he was acutely disinhibited by methylamphetamine at the time of the offending. The court held that drug use provides no excuse and cannot mitigate a crime. At best, it helped explain the behaviour and supported the characterisation of the offending as aberrant, given the offender had no prior or subsequent criminal history.

Delay. The court acknowledged that sentencing for a "stale crime" calls for considerable understanding and flexibility, citing R v Todd [1982] 2 NSWLR 517. The delay here worked in both directions: it allowed the offender to demonstrate sustained prosocial behaviour and reduced the need for specific deterrence, but it also meant he had avoided the consequences of his conduct for nearly a decade.

Sentence. Taking into account the offender's early guilty plea, voluntary surrender, cooperation, absence of prior convictions, steps toward rehabilitation, the effect of delay, and the conditions in custody during the COVID-19 period, the court concluded that a fully suspended sentence was appropriate. It found no additional utility in requiring a short period of actual imprisonment, while noting that any breach of the recognisance conditions could result in custody.

Orders Made

  • The offender was convicted.
  • A sentence of imprisonment of one year and ten months was imposed, suspended under s 20(1)(b) of the Crimes Act 1914 (Cth).
  • The offender was released forthwith upon entering a recognisance of $400, subject to the following conditions:
  • To be of good behaviour for two years and six months from the date of sentence.
  • To appear to receive sentence if called upon during that period for any breach.
  • To accept supervision and guidance from a Community Corrections officer for as long as deemed necessary, and to obey all reasonable directions.
  • To report to Hornsby Community Corrections within seven days.
  • To engage in programmes as directed.
  • Not to travel interstate or overseas without written permission from a probation officer.
  • The psychological report of Graeme Randall was ordered to be forwarded to Hornsby Community Corrections.

Key Takeaways

  • Every carriage service offence involving the sexual exploitation of a child is treated as serious, regardless of whether it involves physical contact. The District Court reaffirmed this principle expressly, citing Adamson v R and Kannis v R.
  • A breach of trust in a quasi-parental relationship is a significant aggravating factor in sentencing for child-targeted carriage service offences, capable of elevating the gravity of what might otherwise appear to be a lower-level example of the offence type.
  • Drug-induced disinhibition does not mitigate criminal conduct. The sentencing court treated the offender's methamphetamine use as relevant only to explaining the conduct and to assessing whether it was out of character, not as a factor reducing culpability.
  • Lengthy delay between offending and sentencing requires an individualised assessment. No general principle dictates that delay automatically produces leniency; it must be weighed against the fact that the offender avoided consequences for the intervening period.
  • Where offending is genuinely isolated and aberrant, the offender has cooperated fully, entered an early guilty plea, and demonstrated sustained rehabilitation over a prolonged period, a suspended sentence under s 20(1)(b) of the Crimes Act 1914 (Cth) remains an available outcome even for Commonwealth child sex carriage service offences.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 474.27A(1)
- Crimes Act 1914 (Cth), ss 16A(2)(g), 20(1)(b)

Cases
- Adamson v R (2015) 47 VR 268
- Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73
- Kannis v R [2020] NSWCCA 79
- Magnuson v R [2013] NSWCCA 50
- R v Asplund [2010] NSWCCA 316
- R v Cattell [2019] NSWCCA 297
- R v McCall [2022] NSWDC 78
- R v Tector [2008] NSWCCA 15
- R v Todd [1982] 2 NSWLR 517
- R v Tuala [2015] NSWCCA 8
- Small v R [2020] NSWCCA 216
- Stanton v R [2021] NSWCCA 123
- The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
- Xiao v R [2018] NSWCCA 4

Other
- Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3