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District Court 24 March 2022

R v McCall

[2022] NSWDC 78

Sexual offences
CRIME MANDATORY MINIMUM SENTENCE SENTENCING MULTIPLE OFFENCES MAXIMUM PENALTY MANDATORY MINIMUM PENALTY OBJECTIVE SERIOUSNESS

Citation: R v McCall [2022] NSWDC 78
Court: District Court of New South Wales
Date: 24 March 2022
Judge: Haesler SC DCJ

Background

The offender had been convicted in 2012 of sexual offences against three young women committed when he was 16 years old. Those prior convictions qualified as "child sexual abuse offences" under the Crimes Act 1914 (Cth) and led, in 2016, to Child Protection Prohibition Orders prohibiting him from communicating with anyone under 18 or using social media.

Between September and December 2020, the offender repeatedly violated those orders. Using online chat platforms and false personas, he posed as a teenager and initiated sexually explicit conversations with seven children aged 14 to 15. He sent a photograph of his erect penis to one 14-year-old and engaged in prolonged sexually graphic exchanges with at least two children. He also transmitted written child abuse material involving a fictional seven-year-old to another adult on multiple occasions.

The offender pleaded guilty in the Local Court to four Commonwealth offences under the Criminal Code Act 1995 (Cth), including using a carriage service to groom and communicate with children under 16, and transmitting child abuse material. He also pleaded guilty to two NSW State offences of breaching his Child Protection Prohibition Orders. All matters were listed before the District Court for sentence.

  • Whether full-time custody was required, given the Commonwealth mandatory minimum sentencing provisions for repeat child sex offenders under ss 16AAB and 16AAC of the Crimes Act 1914 (Cth)
  • How the mandatory minimum penalty of four years for the Commonwealth offences interacted with the available guilty plea discount
  • How to apply the totality principle (avoiding a combined sentence that is disproportionately crushing) across multiple accumulated Commonwealth and State sentences
  • Whether the offender's mental health reduced his moral culpability to a degree relevant to the sentencing exercise

Decision

His Honour found that full-time custody was plainly required. Under s 20(1)(b) of the Crimes Act 1914 (Cth), a court sentencing for Commonwealth child sex offences occurring after 23 June 2020 must impose a specified period of imprisonment unless exceptional circumstances exist. No such circumstances were established. The court noted that this provision effectively overrides the general requirement under s 17A, which ordinarily obliges a court to consider all other sentencing options before imposing imprisonment.

Because the offender had prior convictions for child sexual abuse offences, three of the four Commonwealth charges attracted the mandatory minimum sentencing regime under ss 16AAB and 16AAC of the Crimes Act 1914 (Cth). Those provisions impose a four-year mandatory minimum for the relevant offences and restrict the discount available for a guilty plea. His Honour explained that the guilty plea reduction under s 16AAC is capped by reference to the mandatory minimum, not the starting point. Where his Honour's starting point for two charges was five years, the section limited the reduction to 20 percent of the four-year minimum (that is, 10 months), rather than the 25 percent discount that would otherwise have applied.

The court applied the totality principle by structuring the sentences to run in a cascading but significantly concurrent pattern. The individual Commonwealth sentences ranged from three to four years, and while they were formally accumulated, substantial concurrency produced a total effective Commonwealth sentence of five years. His Honour declined to simply add the minimum sentences together, observing that sentencing should not become a purely arithmetical exercise, though the mandatory minimum regime considerably constrained judicial discretion.

The offender's mental health history was accepted as reducing his moral culpability to some degree, but it did not bring him close to the threshold of exceptional circumstances required to avoid the mandatory minimum terms. The court also observed that the graphic nature of the chat records meant they could not be reproduced in the judgment, as doing so would itself perpetuate the conduct the legislation sought to prohibit.

Orders Made

NSW State offences:
- Sequence 11 (breach of Child Protection Prohibition Order): fixed term of 9 months commencing 25 January 2021
- Sequence 19 (breach of reporting obligations): fixed term of 9 months commencing 25 March 2021

Commonwealth offences:
- Sequence 27 (carriage service communications with child): 3 years imprisonment commencing 25 April 2021
- Sequence 35 (transmitting child abuse material): 3 years imprisonment commencing 25 August 2021
- Sequence 32 (carriage service communications with child, mandatory minimum): 4 years imprisonment commencing 25 December 2021
- Sequence 34 (carriage service communications with child, mandatory minimum): 4 years imprisonment commencing 25 April 2022

Total Commonwealth sentence: 5 years, with a non-parole period of 3 years commencing 25 April 2021 and expiring 24 April 2024, at which point the offender is to be released on parole. The Commonwealth sentence expires 24 April 2026.

Combined total (State and Commonwealth): 5 years and 3 months. Minimum time in custody to be served: 3 years and 3 months.

Note: The sentence was corrected by consent on 12 May 2022 under s 19AHA of the Crimes Act 1914 (Cth) to address an error in the calculation of the total Commonwealth sentence and the sentence expiry date.

Key Takeaways

  • Under s 20(1)(b) of the Crimes Act 1914 (Cth), a court sentencing for Commonwealth child sex offences committed after 23 June 2020 must impose a period of imprisonment unless exceptional circumstances are established, effectively displacing the general discretion otherwise preserved by s 17A.
  • The mandatory minimum regime in ss 16AAB and 16AAC of the Crimes Act 1914 (Cth) applies where the offender has prior child sexual abuse convictions, and it limits the guilty plea discount by tying the permitted reduction to a percentage of the four-year mandatory minimum, not of the sentencing judge's starting point.
  • Applying the totality principle remains available within the mandatory minimum framework, but the practical scope for concurrency is substantially constrained when multiple charges each carry a four-year floor.
  • Mental health evidence capable of reducing moral culpability is a relevant sentencing consideration, but the District Court found it did not rise to the level of exceptional circumstances sufficient to displace the mandatory minimum terms in this case.
  • Graphic content in agreed facts and exhibits will not be reproduced in sentencing judgments where publication would itself perpetuate the prohibited conduct, consistent with the approach in Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.

Legislation and Cases Referenced

Legislation:
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), ss 13, 17
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Crimes Act 1914 (Cth), ss 16AAB, 16AAC, 17A, 19AL, 19AHA, 20(1)(b)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.25C, 474.27(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Evidence Act 1995 (NSW)
- Judiciary Act 1903 (Cth)
- Migration Act 1958 (Cth)

Cases cited:
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Hili v The Queen (2010) 242 CLR 520
- Elias v The Queen (2013) 248 CLR 483
- Barbaro v The Queen (2014) 253 CLR 58
- DPP v De La Rosa (2010) 79 NSWLR 1
- Burton v R [2020] NSWCCA 127
- Cahyadi v R [2007] NSWCCA 1
- Bahar v R (2