Citation: R v Elwdah [2023] NSWDC 416
Court: District Court of New South Wales
Date: 6 October 2023
Judge: Colefax SC DCJ
Background
The offender, a 22-year-old man, pleaded guilty to one count of using a carriage service to transmit a communication with the intention of procuring a person he believed to be a child under 16 years of age for sexual activity, contrary to s 474.27AA(1) of the Criminal Code Act 1995 (Cth).
Between 19 September and 1 October 2022, the offender participated in five online conversations with what he believed to be an adult woman who had a 9-year-old daughter. The conversations were in fact conducted by an assumed online identity operated by the NSW Police Child Exploitation Internet Unit. No real child was involved. The conversations were explicitly sexual in nature and concerned activity with both the adult and her purported daughter.
The offender was arrested on 12 October 2022 when police executed a search warrant at his home. Electronic devices seized were forensically examined but yielded nothing of investigative interest, despite the offender having referred during the conversations to possessing child abuse material.
Legal Issues
- What sentence was appropriate for the offence having regard to its objective seriousness?
- Were there exceptional circumstances sufficient to displace the statutory presumption of immediate imprisonment?
- Was an intensive correction order an appropriate means of serving the sentence?
- What weight should be given to the offender's subjective circumstances, including his level of remorse and prospects of rehabilitation?
- What discount applied to reflect the early guilty plea?
Decision
Objective seriousness: Colefax SC DCJ assessed the offence as slightly below mid-range for offences of its kind. A significant aggravating factor was that the intended victim was believed to be under 10 years of age.
Subjective circumstances and remorse: The court scrutinised several documents tendered on the offender's behalf, including a sentencing assessment report, a psychological report, and a letter from the offender. Each of those documents contained accounts that were inconsistent with the content of the five conversations and with the admissions inherent in the guilty plea. The court found the offender had minimised his conduct and had not fully accepted its criminality. The court was not persuaded that genuine remorse existed, noting in particular that the offender had not sought any psychological treatment in the approximately eleven months between arrest and the sentencing hearing.
Rehabilitation and risk: The sentencing assessment report assessed the offender as above average risk of reoffending. Although the psychologist's report gave a more moderate assessment, the court found that report was significantly undermined by the inconsistency between the history the offender gave to the psychologist and the content of the offending conversations. The court assessed the offender's prospects of rehabilitation as guarded.
Sentence: The court was satisfied that no sentence other than imprisonment was appropriate, and that no exceptional circumstances (including the offender's age, absence of prior convictions, or COVID-19 considerations, individually or cumulatively) displaced the statutory presumption of immediate imprisonment. An intensive correction order was rejected on the basis that community safety, the paramount consideration, would not be served by such an order. General deterrence was identified as the primary sentencing consideration. A 25 per cent discount was applied for the early guilty plea, reducing the head sentence from 3 years to 2 years and 3 months. The sentence was partially suspended after 12 months under s 20(1)(b) of the Crimes Act 1914 (Cth).
Orders Made
- The offender was sentenced to imprisonment for 2 years and 3 months, commencing 6 October 2023.
- Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), at the expiration of 12 months the sentence was partially suspended and the offender was admitted to a recognizance release order, without security, in the sum of $500.
Key Takeaways
- Under s 474.27AA(1) of the Criminal Code Act 1995 (Cth), the offence of using a carriage service to procure a child for sexual activity carries a maximum of 15 years' imprisonment; general deterrence is the primary sentencing consideration for this class of offending.
- The District Court treated the intended victim's age (believed to be under 10) as a significant aggravating factor, even though no real child was involved.
- Inconsistencies between an offender's account to report authors and the admissions inherent in a guilty plea can substantially reduce the weight a sentencing court gives to expert evidence on rehabilitation and remorse.
- An absence of post-arrest engagement with psychological treatment is capable of undermining a finding of genuine remorse and affecting the court's assessment of rehabilitation prospects.
- Upholding immediate imprisonment, the court found that youth, lack of prior convictions, and COVID-19 considerations did not, individually or together, constitute exceptional circumstances sufficient to displace the statutory presumption of immediate custody.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), s 474.27AA(1)
- Crimes Act 1914 (Cth), s 20(1)(b)
Cases cited: None stated in the judgment.