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District Court 11 November 2022

R v Rzeminski

[2022] NSWDC 731

Sexual offencesPublic order & justice offences
CRIME USE CARRIAGE SERVICE RELEVANT FACTORS ON SENTENCE GUILTY PLEA ADDITIONAL MA T TER ON SCHEDULE USE OF A SSUMED ONLINE IDENTITY

Citation: R v Rzeminski [2022] NSWDC 731
Court: District Court of New South Wales
Date: 11 November 2022
Judge(s): Haesler SC DCJ

Background

The offender pleaded guilty in the Local Court to a charge of using a carriage service to procure a person he believed to be a child under 16 years of age for sexual activity, contrary to s 474.26(1) of the Criminal Code Act 1995 (Cth). The offending occurred between April and 4 May 2021. The offender, born in 1997, had been communicating in an online chatroom using a screen name when he encountered what was in fact an Assumed Online Identity (AOI) operated by law enforcement, rather than a real child.

Over several conversations spanning four days, the offender engaged in grooming-type exchanges with the AOI after being told she was 14 years old. The conversations progressed from innocuous topics to sexual discussion, requests for explicit images, and suggestions about meeting. A further offence under s 474.22(1) of the Criminal Code (soliciting the transmission of child abuse material) was placed on a schedule to be taken into account at sentencing without a separate penalty being imposed.

The offender breached his bail conditions after entering the Local Court plea, by moving in with a partner against court orders. He was taken into custody on 8 June 2022 and remained there until sentencing. His child was born while he was in custody.

  • What was the appropriate sentence for a Commonwealth child procurement offence, having regard to the objective seriousness of the conduct and the applicable statutory framework?
  • What weight should be given to the offender's mental health conditions, background, and reduced moral culpability?
  • Whether time spent in custody following the bail breach, combined with a recognisance, could adequately meet the purposes of sentencing, including general deterrence, denunciation, and rehabilitation.
  • How the additional schedule matter under s 16BA of the Crimes Act 1914 (Cth) should be factored into the overall sentence.

Decision

Haesler SC DCJ assessed the objective seriousness of the offending as falling toward the lower end of the range for offences of this type. The grooming activity occurred over four days and included multiple requests for images and escalating sexual discussion, but the conduct was less explicit than commonly seen in comparable cases and was not carried through to any physical contact. The court acknowledged that the AOI was not a real child, though the offender did not know this at the time, and noted that the offending would have been significantly more serious had an actual child been involved.

The court accepted that the offender's moral culpability was reduced by a combination of social anxiety disorder, major depressive disorder, substance use disorder, and a background that included domestic violence and financial hardship. A psychologist's report confirmed those conditions were operating at the time of the offending and supported the prospect of effective treatment. The court also accepted the guilty plea as a mitigating factor and gave weight to the offender's developing insight into the seriousness of his conduct.

On the question of the appropriate sentence, the court found that the period the offender had already spent in custody following his bail breach, approximately 153 days by the time of sentencing, was sufficient to satisfy the need for general deterrence and punishment in the circumstances of this particular case. A recognisance release order was considered capable of meeting the remaining sentencing objectives, particularly rehabilitation. The court emphasised that the statutory framework for Commonwealth offences generally requires a custodial component for offences of this type, and that requirement was satisfied by the time already served.

Orders Made

  • Convicted and sentenced to 15 months imprisonment without hard labour, commencing 8 June 2022 and expiring 7 September 2023.
  • Directed for release after serving 153 days, effective 11 November 2022, upon entering a recognisance of $400 without surety under s 21B of the Crimes Act 1914 (Cth).
  • Recognisance conditions include: good behaviour for 12 months; appearance if called upon for any breach; supervision and guidance by Community Corrections NSW for 12 months or as long as deemed necessary; report to Wollongong Community Corrections within 7 days; compliance with a Community Corrections supervision plan; commencement and continuation of psychological treatment; abstention from drugs and alcohol; and submission to drug and urine testing if requested.
  • Standard probation conditions imposed under s 21(b) of the Crimes Act 1914 (Cth), including compliance with reasonable directions of a probation officer, no interstate or overseas travel without written permission, and participation in rehabilitation programs as directed.
  • Red Samsung mobile device forfeited to the Commonwealth under s 23ZD of the Crimes Act 1914 (Cth).
  • Child prohibition order imposed.

Key Takeaways

  • The District Court confirmed that online child procurement offences carry a strong presumption in favour of full-time custody, consistent with parliamentary intent and the primacy of general deterrence and denunciation established in R v Porte and DPP (Cth) v Watson.
  • Where an offender communicates with an Assumed Online Identity rather than a real child, that fact is not a complete mitigating factor: the Criminal Code requires only that the offender believed the recipient was under 16, and the potential harm to real children underpins the seriousness of such offences.
  • Reduced moral culpability can be established where diagnosed mental health conditions and a difficult personal background are shown by evidence to have been operating at the time of the offending, provided the court exercises appropriate caution in weighing those matters.
  • Time spent in custody following a bail breach can, in the right circumstances, satisfy the custodial requirement for a Commonwealth child sex offence, with a recognisance order serving the remaining purposes of sentencing, particularly rehabilitation.
  • A schedule offence taken into account under s 16BA of the Crimes Act 1914 (Cth) does not attract a separate penalty but is factored into the formulation of the sentence for the principal offence, increasing its overall weight.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.26(1)
- Crimes Act 1914 (Cth), ss 16A(1), 16BA, 17, 21(1)(b)(ii), 21B, 23ZD

Cases
- Adamson v R (2015) 47 VR 268
- Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73
- R v Dennison [2011] NSWCCA 114
- R v Porte [2015] NSWCCA 174