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District Court 18 August 2023

R v Abbott

[2023] NSWDC 488

Sexual offences

Citation: R v Abbott [2023] NSWDC 488
Court: District Court of New South Wales
Date: 18 August 2023
Judge(s): Haesler SC DCJ

Background

The offender was arrested in March 2022 after New South Wales police, using an assumed online identity posing as a 14-year-old girl, received unsolicited messages from him on a chat website. Over several days in February 2022, the offender engaged in communications that included sexual suggestions, requests for photographs, and advice about masturbation. He also attempted to arrange a physical meeting before apparently reconsidering and ending contact.

The offender was charged under s 474.27 of the Criminal Code (Cth) with using a carriage service to transmit communications to a person he believed to be under 16 years of age, intending to make it easier to procure that person for sexual activity. He pleaded guilty at the earliest opportunity. An analysis of his electronic devices revealed no evidence of further offending.

The sentencing proceeding required the District Court to balance the serious nature of the offence, including the need for general deterrence and denunciation, against a collection of unusually favourable subjective circumstances presented on behalf of the offender.

  • What was the appropriate sentence for a federal offence under s 474.27 of the Criminal Code (Cth), tried in a NSW state court?
  • Where on the spectrum of objective seriousness did this particular offending fall?
  • What weight should be given to mitigating factors including an early guilty plea, remorse, rehabilitation, and prospects of re-offending?
  • Whether the combination of objective and subjective factors constituted "exceptional circumstances" under s 21B of the Crimes Act 1914 (Cth), justifying a term of imprisonment coupled with immediate release on recognisance rather than full-time custody.

Decision

The court assessed the objective seriousness of the offending as falling at or below the mid-range. No actual child was harmed, because the "recipient" was a police assumed identity throughout. The court acknowledged, however, that the offender must be sentenced on the basis of his genuine belief that he was communicating with a child, and that his intent to facilitate sexual activity made the conduct morally reprehensible regardless of that fact.

Haesler SC DCJ gave primacy to general deterrence and denunciation, consistent with appellate authority, noting that such offences are committed with relative ease and are difficult to detect. The court accepted the Commonwealth's submission that imprisonment was the only appropriate option, but disagreed that immediate release was unavailable on the facts.

The court applied a 25% reduction to the sentence to reflect the utilitarian value of the early guilty plea, consistent with the approach in Xiao v R. Beyond that reduction, the court synthesised a range of subjective factors, including genuine remorse, co-operation from the outset, good character, steps already taken toward rehabilitation, psychological treatment, and a low assessed risk of re-offending. The offender's status as a parent and provider was also noted, with the court acknowledging the impact that full-time imprisonment of a parent can have on children.

The court found that the combination of objective and subjective factors constituted exceptional circumstances within the meaning of s 21B of the Crimes Act 1914 (Cth). This justified the imposition of a sentence of imprisonment accompanied by immediate release on a recognisance to be of good behaviour, rather than a period of full-time custody.

Orders Made

  • The offender was convicted of the offence under s 474.27 of the Criminal Code (Cth).
  • Sentenced to imprisonment for 1 year and 6 months, commencing 18 August 2023 and expiring 17 February 2025.
  • Directed to be released immediately on entering into a recognisance under s 21B of the Crimes Act 1914 (Cth) in the sum of $400, without surety.
  • Recognisance conditions include: good behaviour for 3 years; appearance for sentencing if called upon for any breach; supervision and guidance by Community Corrections NSW for 12 months or as long as deemed necessary; reporting to Wollongong Community Corrections within 7 days; compliance with a supervision plan; and continuation of psychological treatment.
  • Standard conditions under s 21B applied, including compliance with directions of supervising officers, prohibition on interstate or overseas travel without written permission, and participation in treatment and rehabilitation programs as directed.
  • A child prohibition order was imposed.
  • A forfeiture order was made under s 23ZD of the Crimes Act 1914 (Cth).

Key Takeaways

  • Under s 474.27 of the Criminal Code (Cth), an offender is sentenced on the basis of their genuine belief that they were communicating with a child, and their intent to facilitate sexual activity, even where the "child" was in fact a police assumed identity and no real child was harmed.
  • Appellate authority requires courts sentencing for online child grooming and cybersex offences to give primacy to general deterrence and denunciation, reflecting the ease with which such offences can be committed and the difficulty of detection.
  • Exceptional circumstances under s 21B of the Crimes Act 1914 (Cth) can justify immediate release on recognisance even where the only available sentencing option is imprisonment. The court found such circumstances existed here, based on an unusual convergence of favourable objective and subjective factors.
  • A 25% reduction in the otherwise appropriate sentence was applied to reflect the utilitarian value of an early guilty plea, consistent with the Court of Criminal Appeal's guidance in Xiao v R.
  • The impact of imprisonment on the offender's dependent children is a recognised factor under s 16A(2)(p) of the Crimes Act 1914 (Cth), though it did not displace the requirement of imprisonment in this case.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 474.27
- Crimes Act 1914 (Cth), ss 16A, 21B, 23ZD
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Adamson v R (2015) 47 VR 268
- Barbaro v The Queen (2014) 253 CLR 58
- Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73
- DPP v Smith [2010] VSCA 215
- Hili v The Queen (2010) 242 CLR 520
- Hopkins v R [2004] NSWCCA 105
- Munda v Western Australia (2013) 249 CLR 600
- R (Commonwealth) v Nafarette [2022] NSWDC 225
- R v Asplund [2010] NSWCCA 316
- R v Bajracharya [2022] ACTSC 276
- R v Fuller [2010] NSWCCA 192
- R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
- R v R E [2023] NSWCCA 184
- Small v R [2020] NSWCCA 216
- The Queen v Pham (2015) 256 CLR 550
- Totaan v R [2022] NSWCCA 75
- Xiao v R [2018] NSWCCA 4