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District Court 23 November 2022

R v Finch

[2022] NSWDC 578

Sexual offences
CRIME SENTENCE.

Citation: R v Finch [2022] NSWDC 578
Court: District Court of New South Wales
Date: 23 November 2022
Judge: Mahony SC DCJ

Background

The offender, a former professional footballer in his late thirties at the time of the conduct, was charged with a single offence under s 474.22(1) of the Criminal Code 1995 (Cth): using a carriage service to make available child abuse material. The offending occurred between 6 November 2020 and 30 January 2021 across six separate occasions, using a gay chat platform called "Fastmeet."

On Fastmeet, the offender left short voice messages of a highly depraved and sexualised nature, referencing boys aged 12, 14, and 16 years. Victorian Police had initially identified the platform while investigating a convicted child sex offender, which led to the detection of the offender's conduct. Police attended his home in December 2020, arrested him, and found nothing further of concern on his devices or premises.

The offender was arrested in December 2021, entered a guilty plea in the Local Court in August 2022, and had spent no time in custody referable to the offence. A sentence hearing took place over two days in October 2022.

  • What was the appropriate sentence for an offence of using a carriage service to make available child abuse material, carrying a maximum penalty of 15 years imprisonment?
  • Whether "exceptional circumstances" existed within the meaning of s 20(1)(b)(ii) of the Crimes Act 1914 (Cth) to justify a recognizance release order rather than immediate custody.
  • How to weigh the offender's guilty plea, remorse, rehabilitation prospects, substance abuse history, and psychological diagnosis against the objective seriousness of the offending.

Decision

The court accepted a significant body of psychological and personal evidence in mitigation. A forensic psychologist, Dr Lennings, assessed the offender as suffering from substance abuse disorder and Post Concussive Syndrome, the latter arising from multiple concussions sustained during his football career. Dr Lennings opined that the primary presenting issue was not sexual deviance but rather a combination of cocaine dependency and impaired executive function, including reduced inhibitory control. The court noted that the offender appeared genuinely remorseful and that the risk of further offending of this nature was assessed as remote.

The court also took into account the circumstances of the offending itself. The messages, while described as highly depraved, were audio voice recordings on a monitored platform rather than the transmission of image-based material. The offender had stopped accessing the site voluntarily in January 2021, before his arrest, following what was described as a personal "wake-up call." He cooperated with police, provided access to his devices, and no further concerning material was located.

Mahony SC DCJ found that the combination of these mitigating factors amounted to "exceptional circumstances" for the purposes of s 20(1)(b)(ii) of the Crimes Act 1914 (Cth). This provision allows a court, where such circumstances exist, to record a conviction and impose a term of imprisonment but release the offender immediately on a recognizance (essentially a community-based undertaking with conditions). The court imposed a sentence of two years imprisonment structured in this way, with the sentence to be served in the community under strict conditions.

Orders Made

  • The offender was convicted of the offence under s 474.22(1) of the Criminal Code 1995 (Cth).
  • A sentence of two years imprisonment was imposed, with immediate release pursuant to s 20(1)(b)(ii) of the Crimes Act 1914 (Cth) on a recognizance release order upon the giving of a security of $1,000 without surety.
  • Conditions of the recognizance release order included:
  • Good behaviour for two years.
  • Ongoing care under a named psychologist (Mr G Randall) for at least 12 months, and longer if deemed necessary.
  • Supervision by a Community Corrections probation officer, including random drug testing (urine, blood, or hair follicle).
  • Compliance with all reasonable directions of the probation officer.
  • No interstate or overseas travel without the written permission of the probation officer.
  • Participation in any treatment or rehabilitation programs directed by the probation officer.
  • The offender was directed to report to Community Corrections at Sutherland within seven days.

Key Takeaways

  • A sentencing court may make a recognizance release order under s 20(1)(b)(ii) of the Crimes Act 1914 (Cth) even for a serious Commonwealth offence carrying a 15-year maximum, where the combination of mitigating factors amounts to "exceptional circumstances."
  • Psychological diagnoses such as Post Concussive Syndrome and substance abuse disorder, supported by expert evidence, can form part of an "exceptional circumstances" finding, particularly where they bear a credible causal relationship to the offending conduct.
  • The District Court distinguished this case partly on the nature of the material involved: the offending consisted of audio voice messages on a monitored platform, rather than the transmission or possession of image-based child abuse material, a factor that bore on the objective seriousness assessment.
  • Voluntary cessation of offending prior to arrest, cooperation with police (including providing device access), genuine remorse, and a low assessed risk of reoffending were all treated as significant mitigating considerations.
  • Under s 20(1)(b)(ii) of the Crimes Act 1914 (Cth), a recognizance release order is not a non-custodial outcome: the court expressly noted that the sentence remains a term of imprisonment served in the community, with the prospect of the offender serving the balance in custody upon breach.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 474.22(1)
- Crimes Act 1914 (Cth), s 20(1)(b)(ii)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- DPP (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194
- DPP (Cth) v Garside [2016] VSCA 74
- Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87
- R (Cth) v Nafarette [2022] NSWDC 225
- R (Cth) v Simonet, unreported NSWDC 7 July 2021
- R v Burton [2020] NSWCCA 127
- R v Delzotto [2022] NSWCCA 117
- R v Edwards [2019] QCA 15
- R v Henry (1999) NSWLR 346; [1999] NSWCCA 111
- R v Hutchinson [2018] NSWCCA 152
- R v Wran [2016] NSWSC 1015
- Western Australia v Collier (2007) 178 A Crim R 310; [2007] WASCA 250