AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 13 October 2023

R v Cui

[2023] NSWDC 422

Sexual offences
CRIME

Citation: R v Cui [2023] NSWDC 422
Court: District Court of New South Wales
Date: 13 October 2023
Judge(s): Newlinds SC DCJ

Background

The offender, a 39-year-old man with no prior criminal history, pleaded guilty to two Commonwealth offences of using a carriage service to groom a person and transmit indecent material. The offences involved online conversations conducted in mid-2022 with undercover police officers posing as 13-year-old females. The offender transmitted sexually explicit images in one of the exchanges and engaged in highly sexualised conversations across both.

The offender was arrested on 21 September 2022 and spent 65 days in pre-sentence custody before being granted conditional bail. He entered his guilty pleas at Downing Centre Local Court on 27 June 2023.

At sentencing, the central dispute was whether the court should impose a sentence involving further actual imprisonment or, given the offender's mental health, prospects of rehabilitation, and other personal circumstances, whether immediate release on conditions was appropriate.

Legal Issues

  • What was the objective seriousness of the offences and the offender's moral culpability?
  • What weight should be given to the offender's mental health diagnosis as it bore on both objective seriousness and moral culpability?
  • What was the appropriate role of general and specific deterrence in the circumstances?
  • Whether the presumption in favour of actual imprisonment for Commonwealth child sex offences was displaced by exceptional circumstances under s 20(1)(b)(ii) of the Crimes Act 1914 (Cth)?
  • What sentence, including any conditions, was appropriate in all the circumstances?

Decision

Objective Seriousness and Moral Culpability

The court found that both offences fell at the lower end of the objective seriousness scale. The first offence, involving sexualised conversations over several days and the transmission of indecent images, was assessed as well towards the lower end (at [31]). The second offence, limited to a single day with no images transmitted and no subsequent contact despite the offender having been given a contact number, was found to be very much towards the lower end (at [37]). In both cases the court accepted that the offender's motivation was fantasy satisfaction rather than any intention to act on the conversations (at [27]-[29]).

Mental Health and the Nexus to Offending

The court accepted that the offender suffered from major depressive illness at the time of the offending, now in remission, and found a sufficient connection between that condition and the offending to affect both objective seriousness and moral culpability (at [26]). The court was satisfied that the offending would not have occurred but for the offender's mental health, and characterised it as an aberration explicable by his illness in the context of COVID lockdowns (at [67]). This finding also reduced the weight given to both general and specific deterrence: the offender's mental health condition meant he was not a particularly suitable vehicle for general deterrence (at [39]), and the consequences he had already experienced following arrest were sufficient for specific deterrence (at [69]-[70]).

Rehabilitation, Remorse, and Guilty Plea

Medical evidence from a treating psychologist and an independent psychiatrist uniformly supported the conclusion that the offender had excellent prospects of rehabilitation and a low likelihood of reoffending (at [52], [74]-[78]). No child abuse material was found on any of the offender's seized devices, which the court treated as consistent with the absence of any genuine paedophilic interest (at [61]-[63]). The court accepted that the offender was genuinely remorseful, citing his cooperation with police, the provision of passwords and admissions in interview, ongoing psychological treatment, and sworn evidence (at [48]-[51]). A full 25 percent discount was allowed for the guilty plea, entered at the first reasonable opportunity (at [45]-[46]).

Exceptional Circumstances and the Sentence Imposed

The court acknowledged the statutory presumption that a Commonwealth child sex offender must serve a period of actual imprisonment before release, absent exceptional circumstances (at [83]). Taking all factors together, including the 65 days already served, the offender's mental health nexus to the offending, his excellent rehabilitation prospects, low moral culpability, genuine remorse, and early plea, the court was satisfied that exceptional circumstances existed justifying immediate release (at [85]). An aggregate sentence of one year's imprisonment was imposed for both offences, to be served concurrently, with the offender immediately released on conditions (at [87]-[88]).

Orders Made

  • The offender was convicted of both charges.
  • An aggregate sentence of one year's imprisonment was imposed for both offences, served concurrently, commencing on the date of sentence.
  • The offender was immediately released on a recognizance release order, subject to conditions including:
  • Not to commit any offence.
  • To appear before the court if called upon during the sentence.
  • Referral to a Corrective Services NSW psychologist for sex offending risk assessment and consideration of supervision and treatment options.
  • Fortnightly contact with a Community Corrections officer, covering positive behaviour, prosocial skills, and interpersonal relationships.
  • Regular contact between Community Corrections and the offender's treating psychologist to monitor attendance and progress.
  • Attendance at fortnightly appointments with treating psychologist Natalia James, or another approved medical professional.
  • Six-monthly appointments with a psychiatrist to oversee psychological treatment.
  • Prohibition on seeking employment or voluntary work with organisations involving persons under 16.
  • Supervision by a probation officer, including compliance with reasonable directions and no interstate or overseas travel without written permission.
  • Participation in any additional treatment or rehabilitation programs directed by the probation officer.
  • Security of $1.00 without surety.

Key Takeaways

  • A causal nexus between an offender's mental health condition and online child exploitation offences can reduce both the objective seriousness of the offences and the offender's moral culpability, and may also attenuate the weight given to general deterrence, though the line between a relevant and irrelevant nexus was acknowledged by the court to be "a little obscure" (at [25]-[26]).

  • Under s 20(1)(b)(ii) of the Crimes Act 1914 (Cth), a presumption exists that a Commonwealth child sex offender will serve a period of actual imprisonment before release. The District Court held that this presumption was displaced by exceptional circumstances, including pre-sentence custody already served, low objective seriousness, strong rehabilitation prospects, genuine remorse, and a mental health condition causally linked to the offending (at [83]-[85]).

  • Pre-sentence custody, even where it does not equate to the full sentence to be imposed, remains a material factor in the assessment of whether exceptional circumstances exist to justify immediate release under the Commonwealth regime (at [84]).

  • Where uniform expert medical opinion establishes excellent rehabilitation prospects and low recidivism risk, and where no child abuse material is found on an offender's devices, a sentencing court may treat these factors as significantly reducing the need for both specific deterrence and further incarceration (at [61]-[63], [70]-[78]).

  • Sufficient contrition and remorse, for sentencing purposes, are best demonstrated through observable actions rather than words alone. In this case, the court pointed to the offender's cooperation with police, provision of passwords, admissions in interview, ongoing psychological treatment, and early guilty plea as the relevant objective indicators (at [47]-[50]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2)(k), 16A(2)(g),16A(2)( j), ( ja), 16A (2)(m), 16A( 2AAA), 17A, 20AB (1AA)(a)(iii)
- Crimes (Sentencing Procedure) Act 1999, s 8
- Criminal Code (Cth), s 474.27(1)

Cases
- DPP (Cth) and DPP v Garside [2016] FSCA 74
- DS v R [2022] NSWCCA 110
- DS v R, DM v R [2022] NSWCCA 156
- in DPP (Cth) v Garside [2016] VSCA 74
- Patterson v R [2021] NSWCCA 273
- R v Gajjar [2008] VSCA 268 - 192 A Crim R 76
- R v Michael Nahlous [2013] NSWCCA 90
- Totaan [2022] NSWCCA 75