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District Court 29 September 2023

R v Tan (No.4)

[2023] NSWDC 405

Public order & justice offences
CRIME SENTENCING

Citation: R v Tan (No.4) [2023] NSWDC 405
Court: District Court of New South Wales
Date: 29 September 2023
Judge: Abadee DCJ

Background

This decision is the fourth in a series of judgments arising from the sentencing of an offender convicted of threatening to distribute an intimate image without consent. In earlier proceedings (R v Tan (No.3) [2023] NSWDC 298), the sentencing judge indicated an inclination to impose a community corrections order of 10 months' duration and adjourned to allow a sentencing assessment report (SAR) to be obtained.

The SAR, prepared by the Campbelltown Community Corrections Officer and supplemented by a report from a Corrective Services NSW (CNSW) psychologist, was received before this hearing. The SAR recommended a community services work condition and further psychological assessment of the offender.

At the resumed sentencing, the Crown supported the SAR's recommendations. Defence counsel renewed an earlier submission that no further penalty should be imposed.

  • Whether the community corrections order foreshadowed in the earlier judgment should be confirmed.
  • Whether a community services work condition was appropriate as an additional condition to the order.
  • Whether a condition requiring compliance with CNSW psychological assessment and recommended treatment should be imposed.

Decision

Abadee DCJ rejected the defence submission that no further penalty was warranted. His Honour noted in particular the CNSW psychologist's view that a comprehensive psychological assessment would assist in identifying dynamic risk factors relevant to the offence and appropriate treatment options.

The CNSW psychologist, Mr Nicholls, advised that the nature of the offence meant it was not amenable to assessment on the Static-99R scale, a standard tool used for risk assessment in certain sexual offences. He recommended a broader psychological assessment to clarify risk factors and potential treatment pathways, including a possible referral to an external community-based psychologist.

The Campbelltown Community Corrections Officer assessed the offender as low risk of reoffending on the LSI-R scale and recommended a community services work condition of up to 22.5 hours per month. His Honour confirmed the community corrections order and supplemented it with the conditions recommended in the SAR.

Orders Made

The offender was convicted of threatening to distribute an intimate image without consent and sentenced to a community corrections order commencing 29 September 2023 and expiring 28 July 2024, subject to the following conditions:

  • Standard conditions: the offender must not commit any offence; the offender must appear before the court if called upon during the term of the order.
  • Community services work condition: 100 hours of community services work.
  • Psychological assessment condition: compliance with a CNSW Psychology assessment and recommended treatment for as long as deemed necessary by that service.
  • Supervision condition: in accordance with the supervision plan set out on page 3 of the sentencing assessment report dated 18 September 2023.
  • The offender was directed to telephone the Campbelltown Community Corrections Office within 7 days.

Key Takeaways

  • The District Court confirmed that an adjournment to obtain a sentencing assessment report is a useful mechanism where a community services condition is under consideration, allowing expert input before the order is finalised.
  • A sentencing assessment report from Community Corrections, when combined with psychological expert input, can directly inform both the conditions imposed and the supervision framework attached to a community corrections order.
  • Where a psychologist advises that a standard risk-assessment instrument (here, the Static-99R) is not applicable to the nature of the offence, a broader individual psychological assessment may be ordered as a condition of the sentence rather than as a pre-sentence step.
  • The low-risk rating on the LSI-R scale did not preclude the imposition of additional conditions: the court treated psychological assessment and treatment as appropriate responses to identified dynamic risk factors regardless of that rating.
  • In confirming the order, Abadee DCJ declined to revisit the earlier indication of sentence, reinforcing that foreshadowed orders in sentencing proceedings carry weight and are not easily departed from simply on the basis that defence counsel reprises earlier submissions.

Legislation and Cases Referenced

Cases:
- R v Tan (No.3) [2023] NSWDC 298

Legislation:
- No specific legislation was cited in this judgment. The offence of threatening to distribute an intimate image without consent is found in the Crimes Act 1900 (NSW).