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District Court 9 September 2022

R v Hunter

[2022] NSWDC 631

Sexual offences

Citation: R v Hunter [2022] NSWDC 631
Court: District Court of NSW
Date: 9 September 2022
Judge: Tupman DCJ

Background

The offender pleaded guilty in the Local Court to 16 substantive offences and nine additional offences (taken into account on a Form 1 equivalent under federal law) relating to child abuse material. All offences arose under the Criminal Code Act 1995 (Cth) and concerned conduct occurring on 23 separate occasions between 20 and 28 January 2021.

The offending centred on the offender's use of a messaging application called Kik, through which he accessed, received, solicited, and transmitted child abuse material involving children aged between one and 17 years. The material fell within Categories 1 and 2. The most serious single charge, under s 474.24A(1), related to using a carriage service to transmit child abuse material on three or more occasions involving two or more people, carrying a maximum penalty of 30 years imprisonment and a mandatory minimum of seven years.

The offender cooperated with police, provided information about his conduct, had no prior criminal convictions, and was assessed as a low risk of contact sexual offending against children, and a low to moderate risk of further child exploitation material offences.

  • What sentence was appropriate across 16 substantive federal child abuse material offences, taking into account nine additional offences?
  • How should the mandatory minimum sentence of seven years under s 474.24A(1) of the Criminal Code apply to the most serious charge?
  • What degree of concurrence was appropriate given the factual overlap between the offences?
  • How should totality be applied when imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW)?

Decision

Her Honour sentenced the offender on the basis that, while the offending was serious and spanned multiple occasions, there was considerable factual overlap between the charges. Full accumulation of individual sentences would have produced a result grossly disproportionate to the overall criminality, and a high degree of effective concurrence was therefore warranted.

The most serious offence (Sequence 5, under s 474.24A(1)) attracted an indicative sentence of seven years and six months, reflecting the mandatory minimum of seven years and the aggravating features of that conduct. The possession offence (Sequence 1) was also linked factually to the transmission and access offences, since the material was obtained through the same Kik-based conduct.

Her Honour applied s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to impose an aggregate sentence. The total sentence of eight years and six months was considered to reflect the full criminality across all matters. A non-parole period of five years and six months was set, both commencing from the date of arrest on 29 January 2021.

The judgment also included a pointed rebuke of both parties for providing an estimate of only two hours for what proved to be an exceptionally complex sentence. Her Honour noted the estimate had caused substantial administrative disruption to the Court and other court users, and stated that the matter should have been listed for at least one full day.

Orders Made

  • The offender was convicted of all offences.
  • An aggregate sentence of 8 years and 6 months imprisonment was imposed, commencing 29 January 2021 and expiring 26 July 2029.
  • A single non-parole period of 5 years and 6 months was set, commencing 29 January 2021 and expiring 28 July 2026.
  • Indicative sentences were specified for each sequence, ranging from 12 months (Sequences 14 and 21) to 7 years and 6 months (Sequence 5).
  • A forfeiture order was made pursuant to s 23Z(D) of the Crimes Act 1914 (Cth).

Key Takeaways

  • The District Court applied a high degree of concurrence across 16 federal child abuse material offences where the charges arose from factually overlapping conduct within a short period, finding that full accumulation would have produced a grossly excessive result.
  • Under s 474.24A(1) of the Criminal Code, the offence of using a carriage service to transmit child abuse material on three or more occasions involving two or more people carries a mandatory minimum of seven years imprisonment, a threshold that shaped the indicative sentence for the most serious charge.
  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was available and applied even for federal offences sentenced in the District Court, with individual indicative sentences specified for each matter.
  • Cooperation with police, absence of prior convictions, and a low assessed risk of contact offending were treated as mitigating factors, though they did not displace the mandatory minimum applicable to the most serious charge.
  • The judgment contains a formal criticism of practitioners for providing a two-hour estimate for a sentence involving 16 substantive charges, nine Form 1 equivalents, voluminous written materials, and oral evidence, with Her Honour observing that such inaccurate estimates cause real harm to other court users.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth): ss 474.22(1), 474.22(1)(a)(i), 474.22(1)(a)(ii), 474.22(1)(a)(iii), 474.22(1)(a)(iv), 474.22A(1), 474.24A(1)
- Crimes Act 1914 (Cth): ss 16A, 16A(2), 16AAA, 16AAC, 16BA, 23Z(D)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 53A

Cases
- Bahar v The Queen (2011) 45 WAR 110; [2011] WASCA 249
- Minehan v R [2010] NSWCCA 140
- R v Delzotto [2022] NSWCCA 117
- R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566