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District Court 6 December 2023

R v Jones

[2023] NSWDC 657

Sexual offences
CRIME CHILD SEX OFFENCES

Citation: R v Jones [2023] NSWDC 657
Court: District Court of New South Wales
Date: 6 December 2023
Judge(s): Allen DCJ

Background

The offender, a 37-year-old married man with three children, was charged with three counts arising from online communications between 2 and 7 February 2022. The communications were with an undercover police officer posing as a 14-year-old schoolgirl. The offender initiated contact on Chat IW, an adult chat site, and the conversations later moved to Gmail Hangout.

A jury acquitted the offender of the first two counts but returned a guilty verdict on the third count: using a carriage service to transmit communications to a person he believed to be under 16 years of age, with the intention of making it easier to procure that person to engage in sexual activity, contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth). The offender's defence at trial was that he believed he was engaged in a fetish role-play with an adult woman.

The proceedings before Allen DCJ concerned the sentencing of the offender following the jury's guilty verdict.

Legal Issues

  • What facts could the court find beyond reasonable doubt for sentencing purposes, consistently with the jury's guilty verdict?
  • At what level of objective seriousness did the offending fall within the range of s 474.27(1) offences?
  • Whether the offender was required to establish "exceptional circumstances" under s 20(1)(b)(ii) of the Crimes Act 1914 (Cth) to be released immediately on a Recognisance Release Order (RRO), and if so, whether such circumstances existed?
  • What sentence was appropriate in all the circumstances?

Decision

Issue 1: Facts for sentencing

Allen DCJ was satisfied beyond reasonable doubt, consistently with the jury's verdict, that the offender believed he was communicating with a 14-year-old schoolgirl throughout the period from 2 to 7 February 2022 (at [17], [39]). The recipient had repeatedly disclosed her age and circumstances during the conversations. The court found the offender developed a sexual interest in the recipient and transmitted communications with the intention of making it easier to procure her for sexual activity, but the court was not satisfied that the offender had a "fixed intent" to engage in any particular sexual acts beyond what was disclosed in the messages themselves (at [38], [43]). By 7 February 2022, the court found the offender had withdrawn from the communications and from any loose proposal to meet (at [41], [44]).

Issue 2: Objective seriousness

The court placed the offending appreciably below the broad mid-range of seriousness for offences of this type, toward the lower end of objective seriousness (at [42]). Relevant features included the confined four-day period of offending, the absence of persistent or coercive messaging, the relatively limited explicitness of the sexual content, the absence of any inducement for sexually explicit material from the recipient, the offender's disclosure of his true identity and appearance in photographs, and the lack of any concrete plan to meet (at [30], [31], [35], [39]). The offender's withdrawal from the communications before arrest was treated as a significant consideration (at [41], [44]).

Issue 3: Exceptional circumstances and the s 20(1)(b)(ii) presumption

The Crown accepted that because the offender had already spent one day in custody following his arrest, that day satisfied the requirement of "actual imprisonment" under s 20(1)(b)(ii), meaning it was not strictly necessary for the offender to establish exceptional circumstances to be released immediately on an RRO (at [92]). Nonetheless, Allen DCJ considered it appropriate to address whether exceptional circumstances existed. The court adopted the approach that "exceptional" means out of the ordinary, unusual or uncommon, and that a combination of factors can cumulatively satisfy the test, which should not be set too high (at [102]). The court found exceptional circumstances on the combination of the relatively low objective seriousness, the offender's withdrawal from the communications, his cooperation with police, his lack of any prior criminal record, his long history of good character and volunteer work, the impact of a custodial sentence on his three children, his age and good rehabilitation prospects, and his assessed average risk of sexual reoffending rendering him ineligible for Corrective Services programs (at [103]).

Issue 4: Sentence imposed

The court imposed a sentence of 18 months imprisonment, backdated to commence 5 December 2023 to account for the day spent in custody following arrest. The offender was ordered to be released immediately upon entering into an RRO under s 20(1)(b) of the Crimes Act 1914 (Cth), with a three-year supervision period and specified conditions.

Orders Made

  • The offender was convicted of the offence contrary to s 474.27(1) of the Criminal Code Act 1995 (Cth).
  • A sentence of 1 year and 6 months imprisonment was imposed, backdated to commence 5 December 2023 (incorporating the day spent in custody following arrest on 10 February 2022).
  • The offender was released immediately upon entering into a Recognisance Release Order (RRO) under s 20(1)(b) of the Crimes Act 1914 (Cth) in the amount of $2,000 without security.
  • The RRO is for a period of 3 years, subject to the following conditions:
  • Be of good behaviour.
  • Be supervised by a Probation Officer and obey all reasonable directions.
  • Not travel interstate or overseas without written permission of the Probation Officer.
  • Undertake such treatment or rehabilitation programs as the Probation Officer reasonably directs.
  • The offender was directed to report to the Penrith office of Community Corrections within 7 days.

Key Takeaways

  • A court sentencing for a s 474.27(1) Criminal Code Act 1995 (Cth) offence must determine the facts consistently with the jury's verdict but is not required to find that the offender had a fixed or particular sexual intention beyond what the evidence in the communications themselves discloses (at [38], [43]).

  • Objective seriousness under s 474.27(1) is assessed by reference to a range of conduct-specific features, including the duration and persistence of communications, the degree of explicitness, the presence or absence of inducements, the existence of any concrete plan to meet, and whether the offender withdrew before being detected (at [30], [31], [35], [41], [42]).

  • Under s 20(1)(b)(ii) of the Crimes Act 1914 (Cth), the District Court confirmed that "exceptional circumstances" is not a threshold set too high: it means out of the ordinary, unusual, or uncommon, and a combination of factors, none exceptional on its own, can cumulatively satisfy it (at [102], [103]).

  • The fact that communications were made to an undercover police officer rather than a real child does not reduce the moral culpability of the offender or constitute a mitigating factor on sentence, consistent with the legislative purpose of enabling intervention before a child is actually abused (at [66], [67]).

  • General deterrence is a paramount sentencing consideration for Commonwealth child sex offences, meaning that even significant mitigating personal circumstances carry reduced relative weight in the sentencing exercise, though they are not disregarded entirely (at [59]).

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 ( Cth)
- Crimes Act 1914 ( Cth)

Cases
- Cheung v The Queen (2001) 209 CLR 1
- Savvas v The Queen (1995) 183 CLR 1
- Tarrant v R [2018] NSWCCA 21
- R v Asplund (2010) A Crim R 48
- Tector v The Queen (2008) 186 A Crim R 133
- R v Nahlous [2013] NSWCCA 90
- DPP (Cth) v FM [2013] VSCA 129
- Western Australia v Collier [2007] WASCA 250
- Meadows v R [2017] VSCA 290
- R v Pham (2015) 256 CLR 550
- Markarian v The Queen (2005) 228 CLR 357