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District Court 1 June 2023

Director of Public Prosecutions (Cth) v FRENCH

[2023] NSWDC 174

Sexual offences
CRIME STATE AND COMMONWEALTH OFFENDING PLEA OF GUILTY GENERAL AND SPECIFIC DETERRENCE GOOD PROSPECTS OF REHABILITATION COMPARATIVE CASES

Citation: Director of Public Prosecutions (Cth) v FRENCH [2023] NSWDC 174
Court: District Court of New South Wales
Date: 1 June 2023
Judge: Lerve DCJ

Background

The offender, a 60-year-old male from regional New South Wales, pleaded guilty to three charges arising from conduct in May and June 2022. The offences involved using a carriage service to transmit child abuse material (a Commonwealth offence), possessing bestiality material on a laptop (a State offence), and possessing or controlling child abuse material accessed via a carriage service (a second Commonwealth offence).

Police from the Child Exploitation Internet Unit conducted an undercover operation using an assumed online identity posing as a 40-year-old woman with a nine-year-old daughter. Over several conversations on a social networking website in May 2022, the offender sent highly sexualised messages describing sexual acts he wished to perform on the child. On 9 June 2022, police executed a search warrant at the offender's Lockhart premises and seized electronic devices containing 22 child abuse images (categorised under the INTERPOL baseline scheme, including category 1 images depicting penetrative sexual acts involving pre-pubescent children) and two bestiality images.

At the sentence hearing in the Wagga Wagga District Court, the offender gave evidence that he had not solicited the material found on his devices and that his online conversations were "pure fantasy." The sentencing proceedings required the court to assess those claims and determine the appropriate sentence across both State and Commonwealth offending.

  • What weight, if any, should be given to the offender's claim that the online conversations were "pure fantasy" and that he did not solicit the child abuse material?
  • How should the Commonwealth offences (maximum 15 years imprisonment each) and the State offence (maximum 3 years) be assessed for objective seriousness?
  • What discount applied for the pleas of guilty, and how did the State and Commonwealth frameworks differ in calculating that discount?
  • Whether "exceptional circumstances" existed to justify a wholly suspended sentence (via recognizance release order) rather than actual imprisonment for the Commonwealth offences.
  • What combination of sentencing dispositions appropriately reflected general and specific deterrence, while also recognising the offender's good prospects of rehabilitation?

Decision

The court rejected the significance of the "pure fantasy" characterisation of the online conversations as a mitigating factor. Lerve DCJ found that the explicit and detailed nature of the messages transmitted over four separate occasions across eleven days demonstrated sustained conduct, and the offending was treated seriously regardless of whether a real arrangement to meet the child was ever contemplated. The court noted that the absence of a real child made the offending less serious than it would otherwise have been, but did not reduce its gravity substantially.

On the plea discounts, the court applied a 25% numerical discount for the Commonwealth offences, reflecting both the utilitarian value of the pleas and the offender's facilitation of the course of justice. The full 25% discount applied to the State bestiality offence under the standard New South Wales framework.

The court addressed whether "exceptional circumstances" existed to justify releasing the offender on a recognizance (effectively a suspended sentence) rather than requiring actual custody for the Commonwealth offences. Lerve DCJ concluded, described as "only by the barest of margins," that exceptional circumstances were established on the particular combination of factors present. The judgment characterised this as a "borderline" case. The court also determined that a monetary penalty was warranted in addition to the other orders, directed at specific deterrence.

The court had earlier rejected, at the hearing, the Crown's attempt to tender a more complete version of the online conversations beyond what appeared in the agreed facts. That evidentiary ruling, made ex tempore on 26 April 2023, relied on principles drawn from R v Palu, Khanwaiz v R, and Taitoko v R concerning the limits on the prosecution supplementing agreed facts at sentence.

Orders Made

  • Conviction recorded on all three charges.
  • Sequence 3 (Possess Bestiality Material, State offence): Community Corrections Order for 2 years 6 months, conditioned on no further offending, supervision by the Department of Community Corrections, and compliance with ongoing treatment and counselling (including with the treating clinician or equivalent).
  • Sequences 1 and 4 (Commonwealth offences): Aggregate sentence of 2 years imprisonment. The offender released forthwith upon entering a recognizance of $1,000 to be of good behaviour for 4 years, conditioned on: good behaviour; appearance for sentence on any breach; notification of change of address to the court registry; 2 years supervision by Community Corrections with compliance with treatment and counselling directions; and no interstate or overseas travel without written permission from the supervising Community Corrections officer.
  • Fines: $2,500 payable in respect of each of sequences 1 and 4.
  • Reports of the psychologist (Mr Randall) to be forwarded to Community Corrections.

Key Takeaways

  • A claim that online conversations about child sexual abuse were "pure fantasy" did not substantially reduce the objective seriousness of using a carriage service to transmit child abuse material, particularly where the conduct was sustained across multiple occasions over nearly two weeks.
  • Under the Commonwealth sentencing framework, the discount for a guilty plea encompasses both the utilitarian value of the plea and the offender's facilitation of the course of justice, assessed here at 25%.
  • The District Court confirmed that the prosecution cannot supplement agreed facts at sentencing by tendering additional material over the defence's objection, applying the principles from R v Palu, Khanwaiz v R, and Taitoko v R.
  • Exceptional circumstances sufficient to justify a recognizance release order (suspended sentence) in Commonwealth child abuse material cases represent a high bar. The court described the outcome here as a borderline case reached "only by the barest of margins," signalling the threshold's stringency.
  • A monetary penalty was imposed alongside the non-custodial orders to address specific deterrence, illustrating that courts may combine financial penalties with supervision and treatment conditions even where imprisonment is not immediately served.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 474.22(1), 474.22A(1)
- Crimes Act 1900 (NSW), s 547E(2)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Part 9

Cases
- Burton v R [2020] NSWCCA 127
- De Leeuw [2015] NSWCCA 183
- DPP (Cth) v Beattie [2017] NSWCCA 301
- DPP v Garside (2016) 50 VR 800
- EG v R [2015] NSWCCA 21
- Khanwaiz v R [2012] NSWCCA 168
- R v Asplund [2010] NSWCCA 316
- R v El Karhani (1990) 51 A Crim R 123
- R v Gajjar (2008) 192 A Crim R 76
- R v Palu (2002) 134 A Crim R 174
- R v Porte [2015] NSWCCA 174
- R (Cth) v Nafarette [2022] NSWDC 225
- Taitoko v R [2020] NSWCCA 43