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District Court 12 December 2023

R v Davis

[2023] NSWDC 651

Sexual offences
CRIME SENTENCE SEQUENCE 3 S 474.27AA( 1) CRIMINAL CODE ACT 1995 SEQUENCE 4 POLICE CHILD EXPLOITATION INTERNET UNIT

Citation: R v Davis [2023] NSWDC 651
Court: District Court of New South Wales
Date: 12 December 2023
Judge: Tupman DCJ

Background

A 47-year-old man pleaded guilty to two Commonwealth offences arising from communications he directed at what he believed to be a nine-year-old child. In fact, the "child" was a fictitious persona created by police officers from the Child Exploitation Internet Unit (CEIU), who were conducting covert operations on the social networking website chatiw.com.

The first offence (sequence 3) involved six separate online conversations between 22 June and 27 July 2022, in which the offender sought to procure the fictitious child for sexual activity. The second offence (sequence 4) involved the offender sending an indecent image of himself to the same fictitious recipient. The offender was arrested on 27 July 2022, granted bail, and pleaded guilty at the earliest opportunity in the Local Court on 5 April 2023.

The offender had a stable de facto relationship of 26 years, two daughters, prior good character, and a post-arrest diagnosis of autism spectrum disorder alongside pre-existing mental illness. He had undertaken treatment following his arrest, and expert evidence assessed his risk of reoffending as relatively low.

  • Whether the absence of a real child victim reduced the offender's moral culpability or operated as a mitigating factor on sentence
  • Whether the age of the fictitious child under s 474.29AA(1)(b) of the Criminal Code Act 1995 (Cth) operated as a mandatory aggravating factor where no real child was involved
  • Whether the s 474.27AA offence (sequence 3) was available to be served by way of an Intensive Correction Order (ICO) under s 67(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • The appropriate discount for early guilty pleas
  • Whether this was an exceptional case warranting an alternative to immediate full-time custody
  • The extent to which systemic delay in the Local Court and inaccurate time estimates in the District Court were relevant to the administration of justice

Decision

Objective seriousness and the fictitious victim. The Court found that the absence of a real child did not operate as a mitigating factor, and did not reduce the offender's moral culpability. While it decreased the overall objective criminality of the offences, an immediate term of imprisonment remains ordinarily warranted for this class of offence in the absence of exceptional circumstances. The Court also declined to treat the young age attributed to the fictitious child under s 474.29AA(1)(b) as a mandatory aggravating factor on sentence, holding that provision was not constructed to operate in that way where only a fictitious child was involved. Sequence 3 was assessed as mid-range seriousness; sequence 4 as less serious.

Subjective factors. The Court accepted that the offender's autism spectrum disorder played some part in the offending and that social isolation and loneliness contributed to it. However, the Court noted the offending was directed toward the offender's own sexual gratification and reflected an ongoing interest in similar conduct over five years. Against that, it accepted genuine remorse and contrition, good character, and a relatively low risk of reoffending following treatment.

ICO availability. The Court rejected the submission that sequence 3 (the s 474.27AA offence) could be served by way of an ICO. Section 67(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) does not specifically refer to that offence, and the Court held ICO was therefore not available for it.

Exceptional circumstances and recognizance release. Despite rejecting the ICO avenue, the Court found this to be an exceptional case. It imposed an aggregate term of imprisonment of 20 months but ordered the offender's immediate release on a recognizance release order under s 19AC of the Crimes Act 1914 (Cth), with a 25% discount applied for the early guilty pleas. The Court also delivered pointed criticism of systemic delay in the Local Court committal process and of the parties' "wildly inaccurate" two-hour time estimate in the District Court, noting the knock-on effects on other litigants, some of whom were waiting in custody.

Orders Made

  • The offender was convicted of both offences.
  • Sequence 3: imprisonment of 18 months.
  • Sequence 4: imprisonment of 3 months.
  • Aggregate sentence: 20 months imprisonment, commencing 12 December 2023.
  • Immediate release on a recognizance release order pursuant to s 19AC of the Crimes Act 1914 (Cth), in the sum of $500, for a period of 2 years from 12 December 2023.
  • Conditions include: good behaviour for 2 years; supervision by a probation officer; compliance with all reasonable directions of the probation officer; no interstate or overseas travel without written permission of the probation officer; participation in treatment or rehabilitation programs as directed; and continuation of treatment for autism spectrum disorder with Direct Focus Solutions.

Key Takeaways

  • The District Court confirmed that the absence of a real child victim in online procurement offences does not constitute a mitigating factor and does not reduce the offender's moral culpability, even though it may reduce overall objective criminality.
  • Section 474.29AA(1)(b) of the Criminal Code Act 1995 (Cth) was held not to operate as a mandatory aggravating factor on sentence in cases where the child was entirely fictitious rather than real.
  • Under s 67(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an ICO is not available as an alternative to full-time custody for a s 474.27AA(1) offence, because that provision does not specifically refer to it.
  • A diagnosis of autism spectrum disorder, accepted as having contributed to social isolation and the offending, formed part of the basis for finding exceptional circumstances justifying immediate release on a recognizance release order, notwithstanding the ordinary expectation of immediate custody for this class of offence.
  • The Court made pointed observations about systemic inefficiency in the Local Court committal process and the adverse consequences of inaccurate hearing time estimates in the District Court, particularly for others awaiting sentence in custody.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth): ss 474.27A(1), 474.27AA(1), 474.28, 474.29AA
- Crimes Act 1914 (Cth): ss 16A, 19AC, 20AB, 21B
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 67
- Criminal Procedure Act 1986 (NSW): s 75
- Crimes Act 1900 (NSW): s 66EB

Cases
- Burton v R [2020] NSWCCA 127
- Chenhall v R [2021] VSCA 175
- R v De Leeuw [2015] NSWCCA 183
- R v Ebejer [2020] NSWDC 475
- R v Gifford [2016] NSWCCA 302
- R v Hare [2020] NSWDC 127
- R v Kristensen [2018] NSWCCA 189