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District Court 2 December 2022

R v Schleu

[2022] NSWDC 713

Sexual offences
CRIME CHILD SEX OFFENCES COMMONWEALTH OFFENCES CHILD ABUSE MATERIAL

Citation: R v Schleu [2022] NSWDC 713
Court: District Court of New South Wales
Date: 2 December 2022
Judge(s): Sutherland SC DCJ

Background

The offender pleaded guilty to two Commonwealth offences. The first was using a carriage service to procure a person under 16 years of age for sexual activity, contrary to s 474.261 of the Criminal Code Act 1995 (Cth). The second was possessing child abuse material, contrary to s 474.22A of the same Act. Both offences carry a maximum penalty of 15 years imprisonment.

The first offence arose from an undercover police operation. Between September and November 2020, investigators posed online as a 14-year-old male and responded to an advertisement placed by the offender. Over approximately seven weeks, the offender exchanged explicit messages, photographs, and videos with the assumed identity, and made arrangements to meet for sexual activity.

The second offence arose after the offender was arrested and placed on bail with conditions prohibiting internet access. Police encountered him during a COVID-19 lockdown in July 2021 and found a mobile phone he was carrying contained 50 images of child abuse material: 19 classified as category 1 and 31 as category 2 on the Interpol Baseline Scale. The possession offence occurred while the offender was on bail for the first offence and constituted a breach of his bail conditions.

Legal Issues

  • What was the appropriate sentence for each offence, taking into account objective seriousness, applicable statutory requirements under the Crimes Act 1914 (Cth), and the 2020 amendments relating to child sexual offences?
  • How should the sentences be structured and cumulated to reflect totality?
  • What weight should be given to the offender's subjective circumstances, including his guilty plea, physical injury sustained in custody, mental health, caring responsibilities, and extra-curial punishment?

Decision

Objective seriousness of the procurement offence: The court assessed the procurement offence as falling within a broadly described mid-range of objective seriousness. Relevant factors included the seven-week duration of communications, the offender's persistence (contact occurring on 31 of the 50 days), the 45-year age gap between the offender and the purported victim, and the explicit nature of the sexual material transmitted. The court also noted that the offender's disposal of his mobile phone when travelling to meet police buttressed an inference of awareness of wrongdoing (at [30]-[33]).

Objective seriousness of the possession offence: The possession offence was assessed as falling below mid-range, given the relatively small number of images and the absence of a Crown submission regarding particular depravity. However, the fact that the offence was committed while the offender was on bail, in breach of his bail conditions, operated as an aggravating factor (at [34]-[35]).

Sentencing principles: General deterrence is the primary sentencing consideration for offences involving the sexual exploitation of children through electronic means, and personal mitigating factors such as good character and rehabilitation prospects carry reduced weight as a consequence (at [27]-[30]). The court applied the 2020 statutory amendments, which require an actual period of imprisonment absent exceptional circumstances, presumptive cumulation of terms, and consideration of rehabilitation as an additional objective (at [26]).

Subjective factors and discounts: The offender received a 25% discount for his early guilty plea (at [39]). The court took into account the serious acetabular labral tear the offender sustained when assaulted by another prisoner at Bathurst, treating this as extra-curial punishment warranting mitigation (at [37]). The court also accepted that time in custody was more onerous due to COVID-19 restrictions, including a 10-day isolation period, and that the offender's mobility impairment rendered custody more burdensome (at [38], [41]). The effect of imprisonment on the offender's elderly and dependent mother was acknowledged, though the court found it was not determinative (at [40]).

Orders Made

  • The offender was sentenced to an aggregate term of imprisonment of four years, commencing 2 June 2022 and expiring 1 June 2026.
  • A single non-parole period of two years was imposed; the offender became first eligible for parole on 1 June 2024.
  • The indicative sentence for the procurement offence (sequence 1) was three years.
  • The indicative sentence for the possession offence (sequence 5) was two years, with partial accumulation applied.
  • An Apple iPhone 8 was forfeited to the Commonwealth pursuant to s 23Z(d) of the Crimes Act 1914 (Cth).

Key Takeaways

  • General deterrence is the primary sentencing consideration for child sexual exploitation offences involving electronic means, which limits the weight available to personal mitigating factors such as prior good character, age, and rehabilitation prospects (at [27]-[30]).

  • Committing a child abuse material offence while on bail for a related child sexual offence, and in breach of bail conditions, constitutes an aggravating circumstance that increases the objective seriousness of the later offence (at [35]).

  • Where an offender sustains serious injury at the hands of other prisoners in circumstances where the court is satisfied the assault was motivated by the nature of the offences, that extra-curial punishment is a recognised mitigating factor in the instinctive synthesis (at [37]).

  • Under the 2020 Commonwealth amendments, sentencing courts must presume cumulation of imprisonment terms, require an actual period of imprisonment absent exceptional circumstances, and treat rehabilitation as a separately mandated objective alongside general deterrence (at [26]).

  • An offender's conduct in procuring sexual activity with a child is regarded as equally morally reprehensible whether the recipient of the communications was a real child or an undercover police officer posing as one (at [29]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 ( Cth)
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 ( Cth)
- Criminal Code Act 1995 ( Cth)

Cases
- Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
- R v Gajjar (2008) 192 A Crim R 76
- R v Gent (2005) 162 A Crim R 29
- R v Hutchinson [2018] NSWCCA 152