Citation: R v LOPES [2023] NSWDC 320
Court: District Court of New South Wales
Date: 17 August 2023
Judge(s): Noman SC DCJ
Background
The offender, a 78-year-old man of prior good character, pleaded guilty in the Local Court to a single Commonwealth offence of distributing child abuse material outside Australia, contrary to s 273.6(1)(a)(ii) of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is 15 years imprisonment. The offence carried a statutory presumption in favour of full-time imprisonment, displaceble only by exceptional circumstances.
The child abuse material consisted entirely of words. Over a one-week period in November 2021, the offender sent messages via WhatsApp and Skype to two separate recipients, describing sexual conduct with children, including minors aged 13 and 14. The messages were discovered when Australian Border Force officers searched the offender's phone upon his arrival in Australia in December 2021.
A central factual dispute was whether the conduct described in the messages had actually occurred. The offender denied the conduct and gave evidence that the words were meaningless "crap." The court was unable to positively find that the described conduct had occurred, and sentenced on the basis that it was not established by the prosecution. The court nonetheless found the repeated, unsolicited communications to be concerning.
Legal Issues
- Whether the offending fell within the lower, mid, or upper range of objective seriousness for this offence provision
- How to assess child abuse material constituted by words alone, particularly where the conduct described was not established as genuine
- Whether exceptional circumstances existed to displace the statutory presumption in favour of full-time imprisonment
- What weight to give to the offender's age, prior good character, remorse, limited reoffending risk, and rehabilitative needs
- The appropriate quantum of sentence, accounting for an early guilty plea (25% discount) and two days of pre-sentence custody
Decision
The District Court characterised the offending as a relatively low-level example of the offence provision. There were three separate conversations distributed to two different persons within a single week, discussing sexual conduct involving children as young as 13 and fellatio involving minors. However, the conversations were words only, lacked particular graphic quality, and the underlying conduct was not established to have occurred. The court drew guidance from the features identified in R v Hutchison [2018] NSWCCA 152 for assessing child abuse material.
On subjective matters, the court accepted that the offender was remorseful, that his plea was entered early, and that he was at low risk of reoffending. His prior good character, prosocial history, age, and the salutary effect of detection and public shame were all taken into account. However, the court noted a residual concern that the offender had volunteered the communications unprompted to apparent strangers, which suggested "some perversity of thought" and a possible benefit from professional intervention. The offender's lack of insight into the harm caused by child abuse material was also noted as an impairment.
General deterrence and denunciation were treated as paramount sentencing considerations, given that this category of offending occurs privately, overseas, and is difficult to detect. The court also considered the Commonwealth rehabilitation objective applicable to child sex offences. After applying the 25% plea discount and accounting for pre-sentence custody, a sentence of nine months imprisonment was imposed.
The court found that exceptional circumstances existed to justify immediate release. The combination of the nature of the offending (words only, underlying conduct not established), the offender's age, genuine remorse, prior good character, and limited reoffending risk collectively displaced the statutory presumption of imprisonment. The court also found that any rehabilitation required would be better achieved in the community than in custody, where conditions might be more onerous given the offender's age and offence classification.
Orders Made
- The offender is convicted of the offence
- Sentenced to 9 months imprisonment
- Released forthwith upon entering into a recognisance of $200 to be of good behaviour for 2 years
- Supervision by a probation officer, with obligation to obey all reasonable directions
- No interstate or overseas travel without written permission of the probation officer
- Must undertake treatment or rehabilitation programs as directed by the probation officer
- Must report to City Community Corrections (Ground Floor, 13-15 Wentworth Avenue, Sydney NSW 2000) within 7 days
Key Takeaways
- The District Court confirmed that child abuse material constituted by words alone is still capable of founding a serious offence under s 273.6(1)(a)(ii) of the Criminal Code Act 1995 (Cth), even where the described conduct is not established to have occurred.
- Under the relevant offence provision, a statutory presumption favours full-time imprisonment; it is displaced only where exceptional circumstances exist, and the court must assess those circumstances in combination rather than in isolation.
- A combination of factors, including the nature of the offending, the offender's advanced age, genuine remorse, prior good character, and low assessed risk of reoffending, was found sufficient to constitute exceptional circumstances justifying immediate release on recognisance.
- General deterrence and denunciation remain paramount sentencing considerations for offences involving child abuse material, given their private and difficult-to-detect nature, even where the objective gravity of a particular instance is assessed as relatively low.
- For Commonwealth child sex offences, sentencing courts must additionally consider rehabilitation objectives, including whether treatment or programs are more appropriately undertaken in the community than in custody.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), s 273.6(1)(a)(ii)
Cases:
- R v Hutchison [2018] NSWCCA 152