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District Court 24 February 2023

R v Swinton

[2023] NSWDC 126

Sexual offences
CRIME SENTENCE COMMONWEALTH OFFENCES

Citation: R v Swinton [2023] NSWDC 126
Court: District Court of New South Wales
Date: 24 February 2023
Judge: Bourke SC DCJ

Background

The offender, a 30-year-old man from Katoomba, was convicted by jury of two counts of using a carriage service to transmit indecent communications to a person under 16 years of age, contrary to s 474.27A(1) of the Commonwealth Criminal Code. The convictions arose from online communications he conducted via the Chatiw chat platform and Skype in 2021.

The first count concerned communications with an undercover police officer operating under an assumed online identity, who represented as a 14-year-old girl. During those exchanges, the offender sent sexually explicit messages and sought to arrange a meeting. The second count arose from messages discovered on the offender's seized iPhone, in which he communicated with a contact named "Kitten," a person who had identified herself as 15 years old, and to whom he sent messages with sexual overtones, including requests for photographs.

Police executed a search warrant at the offender's Katoomba home in November 2021, seizing his iPhone. Review of the device revealed the relevant communications and led to his arrest and charge on both counts.

  • What sentence was appropriate for two convictions under s 474.27A(1) of the Commonwealth Criminal Code, each carrying a maximum penalty of ten years imprisonment?
  • How should the court weigh objective seriousness, the offender's personal circumstances, and relevant sentencing principles, including totality, in determining the aggregate sentence?
  • Whether the offender's personal circumstances, including any psychiatric or psychological matters, warranted a reduction in the sentence or a non-custodial release mechanism.

Decision

The District Court assessed the objective seriousness of both offences in the context of the ten-year maximum penalty. Each offence involved deliberate online contact with a person believed to be a minor, with the communications escalating to sexual content and, in the first count, attempts to arrange a physical meeting. The court treated the maximum penalty as an important guidepost.

The court considered the offender's personal circumstances, including a report from Dr Ashley Schweinsberg, and identified matters personal to the offender that bore on the sentencing exercise. Those circumstances, taken together with other relevant factors, satisfied the court that a sentence not requiring further time in custody was appropriate.

Because the two offences involved separate offending against different victims, the court found some notional accumulation was warranted. At the same time, it applied totality principles to ensure the combined sentence was not disproportionate. The court imposed indicative sentences of seven months for count 1 and four months for count 2, arriving at an aggregate of nine months imprisonment.

Orders Made

  • The offender was convicted of each offence.
  • An aggregate term of nine months imprisonment was imposed under s 20(1)(b) of the Crimes Act 1914.
  • The offender was released forthwith on a Recognisance Release Order (RRO) for 18 months, on self-recognisance of $500, subject to the following conditions:
  • Good behaviour
  • Supervision by the NSW Department of Community Corrections
  • Compliance with all reasonable directions of Community Corrections
  • No interstate or overseas travel without written permission from Community Corrections
  • Completion of any treatment or counselling as directed by Community Corrections
  • The offender was directed to report to the Armidale office of Community Corrections within seven days.
  • A copy of Dr Ashley Schweinsberg's report was directed to be forwarded to the Armidale office of Community Corrections.
  • A forfeiture order was made under s 23ZD of the Crimes Act 1914 in respect of the mobile telephone and associated SIM card.

Key Takeaways

  • A conviction under s 474.27A(1) of the Commonwealth Criminal Code for using a carriage service to transmit indecent communications to a person under 16 carries a maximum of ten years imprisonment, which the sentencing court treated as a significant reference point in calibrating the sentence.
  • Where two offences of this type involve separate victims, some degree of notional accumulation in an aggregate sentence is appropriate, even while totality principles operate to moderate the overall term.
  • The District Court found that personal circumstances, supported by expert psychological or psychiatric evidence, can be a relevant mitigating consideration sufficient to support a non-custodial release order, even following a contested jury trial resulting in conviction.
  • Under s 20(1)(b) of the Crimes Act 1914, a court sentencing for Commonwealth offences may impose a term of imprisonment while ordering immediate release on a Recognisance Release Order with supervision conditions, including treatment requirements and travel restrictions.
  • Forfeiture of devices used to commit Commonwealth carriage service offences is available under s 23ZD of the Crimes Act 1914, and was ordered here in respect of the mobile telephone and SIM card central to the offending.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code, s 474.27A(1)
- Crimes Act 1914 (Cth), ss 20(1)(b), 23ZD

Cases
- R v Aniezue [2016] ACTSC 82
- Totaan v R [2022] NSWCCA 75