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District Court 7 November 2022

R (Commonwealth) v Robinson

[2022] NSWDC 537

Sexual offences
CRIMINAL LAW SENTENCING

Citation: R (Commonwealth) v Robinson [2022] NSWDC 537
Court: District Court of New South Wales
Date: 7 November 2022
Judge: Abadee DCJ

Background

The offender pleaded guilty to soliciting child abuse material using a carriage service, contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for the offence is 15 years' imprisonment and/or a fine of $189,000.

The offending occurred on 13 May 2020, when the offender exchanged messages via Facebook and Skype with an undercover police officer from the Child Exploitation Internet Unit, who was posing as a 14-year-old girl. Over the course of two exchanges on that day, the communications escalated from general conversation to the offender requesting and receiving photographs of a sexual nature, sending a photograph of his own erect penis, and asking the assumed identity to engage in sexual activity. The offender was arrested on 3 July 2020.

The sentencing hearing required the court to weigh the objective seriousness of the offending against a range of subjective factors, including the offender's mild intellectual disability and depression, the effect of stringent bail conditions experienced over an extended period, and the availability of a recognisance release order rather than full-time imprisonment.

  • What was the objective seriousness of the offending, particularly given its brief and opportunistic nature and the absence of a real child victim?
  • Whether the fact that the offender was "targeted" by law enforcement reduced the seriousness of the offending.
  • What weight should be given to the offender's mild intellectual disability and depression, including whether a causal nexus existed between those conditions and the offending?
  • Whether the onerous bail conditions to which the offender was subject for an extended period constituted a form of "quasi-custody" warranting a reduction in sentence.
  • What form of sentence was appropriate given all the circumstances, including whether a recognisance release order under s 20 of the Crimes Act 1914 (Cth) was available and suitable.

Decision

Objective seriousness. Abadee DCJ placed the offending at the lower end of the scale. The communications were brief, there was no planning, and the volume of sexualised material sought was not significant, although the court acknowledged an escalation toward the end of the exchange. The offending was characterised as opportunistic, arising from the offender feeling bored, isolated, and depressed, rather than from deliberate predatory conduct.

The "targeting" argument. The court rejected the submission that being approached first by the undercover operative reduced the seriousness of the offending. Citing Giang v R and McKibben v R, the court distinguished entrapment from an investigative technique that merely provides an opportunity to commit an offence. The court also confirmed, following R v Gajjar, that the absence of a real victim does not reduce the gravity of the conduct, given the statutory purpose of prohibiting internet communications directed at young people for sexual purposes.

Intellectual disability and depression. The court accepted that the offender had a mild intellectual disability and depression, and that these conditions were causally connected to the offending to a degree. This connection, along with the hardship that imprisonment would impose on the offender given his disability, operated to reduce the weight given to general deterrence and moderated the sentence.

Quasi-custody and bail conditions. The court considered whether the onerous bail conditions the offender endured over an extended period prior to sentencing amounted to a form of quasi-custody warranting a formal reduction in the sentence. While the court acknowledged the relevance of this consideration, the ultimate sentence imposed reflected all subjective factors in combination. The court determined that a sentence of full-time imprisonment was unavoidable, but that release on a recognisance release order after a minimum term was appropriate to support rehabilitation under close supervision.

Orders Made

  • The offender was convicted of count 1 on the Indictment.
  • Sentenced to imprisonment for 2 years and 3 months, commencing 23 May 2022 and expiring 22 August 2024.
  • Minimum term of 1 year and 4 months, expiring 22 September 2023.
  • Upon completing the minimum term, the offender is to be released on a recognisance release order under s 20(1)(b) of the Crimes Act 1914 (Cth), on giving security of $1,000, to be of good behaviour for the remaining 11 months.
  • Conditions of the recognisance release order include: supervision by the Wyong Community Corrections Officer; compliance with all reasonable directions of that officer; no interstate or overseas travel without written permission; and participation in such treatment or rehabilitation programs as directed.
  • The court directed that the reports of Dr Olave Nielssen (21 May 2021) and Professor Susan Hayes (21 June 2017) be brought to the attention of the Wyong Community Corrections Officer.

Key Takeaways

  • A law enforcement operation that presents an opportunity for an offender to commit an online child exploitation offence does not constitute entrapment and does not reduce the objective seriousness of the offending, provided there is no pressure or persuasion by authorities.
  • The absence of a real child victim in an undercover operation does not reduce the gravity of conduct under s 474.22(1) of the Criminal Code, given the provision's purpose of protecting young people from online sexual communications.
  • Where an offender's mild intellectual disability and depression are causally connected to the offending, those conditions can reduce the weight given to general deterrence and affect the overall sentencing outcome.
  • Under s 20(1)(b) of the Crimes Act 1914 (Cth), a court may impose a period of full-time incarceration followed by release on a recognisance release order, even for a federal child exploitation offence, where rehabilitation under supervision is a meaningful sentencing objective.
  • Stringent bail conditions endured over a prolonged pre-sentence period may be treated as a form of quasi-custody and taken into account in fixing the appropriate sentence.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 474.22, 474.27A
- Crimes Act 1914 (Cth), ss 16A, 17A, 20
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 67

Cases
- Boulton v R (2014) 46 VR 308
- Cluett v The Queen [2019] WASCA 111
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- DS v R; DM v R [2022] NSWCCA 156
- Gardiner v R [2018] NSWCCA 27
- Giang v R [2017] NSWCCA 25
- Hartman v R [2011] NSWCA 261
- Hili v R; Jones v R (2010) 242 CLR 520
- Hughes v R (2008) 185 A Crim R 155
- Imbornone v R [2017] NSWCCA 144
- Lloyd v R [2022] NSWCCA 18
- McKibben v R [2007] NSWCCA 89
- R v Asplund (2010) 216 A Crim R 48
- R v Burton [2010] NSWCCA 54
- R v De Leeuw [2015] NSWCCA 183
- R v Gajjar (2008) 192 A Crim R 76
- R v Hudson [2016] SASCFC 60
- R v Mertell [2022] ACTSC 37
- R v Perry [2000] NSWCCA 375
- R v Poynder (2007) 171 A Crim R 544