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District Court 20 October 2022

R v Lozinski

[2022] NSWDC 487

Sexual offences
CRIME SENTENCE EARLY PLEA OF GUILTY.

Citation: R v Lozinski [2022] NSWDC 487
Court: District Court of New South Wales
Date: 20 October 2022
Judge: Mahony SC DCJ

Background

The offender, a 53-year-old director at the Australian Electoral Commission with no prior criminal history, was charged with one offence under s 474.22(1) of the Criminal Code Act 1995 (Cth): using a carriage service to make available child abuse material. The maximum penalty for this offence is 15 years imprisonment.

The offending arose from a brief voicemail exchange on 4 December 2020 via a telephone chat service called Fastmeet, which was used by gay, bisexual, and bi-curious men to communicate. The offender exchanged recorded voice messages with another user who had previously been identified and arrested by Victorian Police as a convicted child sex offender. The entire interaction lasted approximately three minutes before the offender terminated the service.

The offender was arrested on 4 December 2021, co-operated fully with police (including providing device access codes and a key to his home), and entered an early plea of guilty in the Local Court on 31 May 2022. A search of his electronic devices found no unlawful material.

  • Whether the circumstances of the offending, including the offender's subjective mental state and the brief duration of the exchange, were relevant to the sentencing synthesis.
  • Whether the offender's health conditions, personal circumstances, and prospects of rehabilitation supported a non-custodial outcome.
  • Whether s 19B of the Crimes Act 1914 (Cth), which allows a federal court to discharge an offender without conviction, was available and appropriate on the facts.
  • Whether the prospect of registration under the Child Protection (Offenders Registration) Act 2000 (NSW) could be taken into account as a mitigating factor in the s 19B assessment, in light of s 24A of the Child Protection (Offenders Prohibition Orders) Act.

Decision

The court accepted much of the offender's account of his subjective state during the exchange. The offender gave evidence that he used the term "father/son" in the homosexual vernacular sense (referring to adults), and that he only realised the other user was steering the conversation toward pre-pubescent children after the second voicemail, at which point he terminated the call. A supporting affidavit demonstrated that "father and son" gay pornography on mainstream platforms depicts adults of lawful age. While the offender pleaded guilty and therefore accepted the conduct constituted the offence, these matters were relevant to the degree of criminality involved.

The court took into account a significant body of evidence about the offender's personal circumstances. He had been diagnosed with Major Depressive Disorder, Generalised Anxiety Disorder, and Panic Disorder, with symptoms recurring after arrest. He had been in psychological treatment for approximately a year. He was also the primary carer for his 91-year-old mother. Expert psychological evidence and character evidence from multiple sources supported the finding that he posed a low risk of reoffending.

On the question of registration as a child protection offender, the court held that, following Sabel v R, s 24A of the Child Protection (Offenders Prohibition Orders) Act applies to federal offenders. This provision expressly prohibits a sentencing court from treating the prospect of registration as a mitigating factor. The court therefore did not consider that matter at the second stage of its s 19B analysis.

Having weighed all relevant matters in the sentencing synthesis, including the early guilty plea, the brief and isolated nature of the offending, the absence of any prior convictions or device material, the offender's health and personal circumstances, and his low risk of recidivism, the court concluded it was inexpedient to impose any punishment other than a nominal one. It discharged the offender without conviction under s 19B(1)(d) of the Crimes Act 1914 (Cth).

Orders Made

  • The offender was discharged without conviction pursuant to s 19B(1)(d) of the Crimes Act 1914 (Cth) in respect of the charge under s 474.22(1) of the Criminal Code Act 1995 (Cth).
  • The discharge was upon the offender giving security in the sum of $250, without surety, by recognizance to be of good behaviour for a period of 12 months from 20 October 2022.
  • A further condition applied: the offender was required to remain under the care of Dr L Jones for the 12-month period, or for so long as Dr Jones determined was appropriate.

Key Takeaways

  • Under s 19B of the Crimes Act 1914 (Cth), a federal court may discharge an offender without recording a conviction where it is inexpedient to impose any punishment beyond a nominal one, and this power remains available even for serious Commonwealth offences carrying substantial maximum penalties.
  • The District Court's sentencing synthesis weighed the brief and isolated nature of the exchange, the absence of any prior offending or unlawful device material, the offender's genuine co-operation with police, and compelling evidence of low reoffending risk as collectively supporting a discharge without conviction.
  • A guilty plea to a s 474.22(1) offence does not preclude a court from examining the offender's subjective mental state and the circumstances of the exchange when assessing the degree of culpability involved.
  • Following Sabel v R, s 24A of the Child Protection (Offenders Prohibition Orders) Act applies to federal offenders, and a sentencing court must not treat the prospect of registration under the Child Protection (Offenders Registration) Act 2000 as a mitigating factor.
  • Diagnosed psychiatric conditions (including Major Depressive Disorder and Anxiety Disorder), active engagement with treatment, and primary carer responsibilities were among the personal circumstances the court treated as relevant to the s 19B determination.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 474.22(1)
- Crimes Act 1914 (Cth), s 19B
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Evidence Act 1995 (NSW)

Cases
- Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568; [2001] NSWCCA 332
- DPP (Cth) v Garside (2016) 259 A Crim R 299; [2016] VSCA 74
- DPP (Cth) v Moroney [2009] VSC 584
- Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140
- R v Hutchinson [2018] NSWCCA 152
- R v Ingrassia (1997) 41 NSWLR 447
- Sabel v R (2014) 242 A Crim R 49; [2014] NSWCCA 101
- The Queen v De Simoni (1981) 147 CLR 383
- Totaan v R [2022] 400 ALR 578; [2022] NSWCCA 75
- Walden v Hensler (1987) 163 CLR 561; [1987] HCA 54