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Court of Criminal Appeal 9 August 2024

Elwdah v R

[2024] NSWCCA 150

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE CHILD SEX OFFENCE APPEAL ALLOWED

Citation: Elwdah v R [2024] NSWCCA 150
Court: NSW Court of Criminal Appeal
Date: 9 August 2024
Judge(s): Wright J, Chen J, McNaughton J

Background

The appellant had pleaded guilty to a single Commonwealth offence of using a carriage service to groom another person with the intention of facilitating the procurement of a child under 16 for sexual activity (s 474.27AA(1) of the Criminal Code 1995 (Cth)). Between September and October 2022, he engaged in five online conversations with an undercover police operative posing as a mother with a nine-year-old daughter. The conversations involved explicit discussion of sexual acts with both the adult and the child.

The appellant was 22 years old at the time of the offending and had no prior criminal history. He entered a guilty plea in the Local Court, attracting a 25% discount. On 6 October 2023, the District Court sentenced him to 2 years and 3 months' imprisonment, suspended after 12 months upon his entry into a recognizance release order (RRO) requiring good behaviour for 15 months.

The original sentence orders omitted the mandatory conditions required under s 20(1B) of the Crimes Act 1914 (Cth) for offenders convicted of Commonwealth child sex offences. Those conditions were added when the sentencing proceedings were reopened on 16 February 2024. The appellant then sought leave to appeal against his sentence.

  • Whether the sentencing judge failed to engage with the mandatory sentencing consideration in s 16A(2AAA) of the Crimes Act 1914 (Cth), which requires a court to take into account the objective of the rehabilitation of the offender
  • Whether the sentencing judge erred in assessing the objective seriousness of the offending
  • Whether the sentence imposed was manifestly excessive

Decision

Ground 1 (s 16A(2AAA): rehabilitation objective) The Court held that s 16A(2AAA) imposes a distinct mandatory obligation to take into account the objective of rehabilitation, separate from the s 16A(2)(n) consideration of the offender's "prospects of rehabilitation." A sentencing judge need not cite the section explicitly, but must demonstrate engagement with it through other indicia in the remarks on sentence.

The Court found three indicators of non-compliance. First, the remarks on sentence made no specific reference to s 16A(2AAA). Second, while there had been some discussion about the availability of sex-offender treatment programs, the RRO imposed was too short to accommodate the programs identified in the psychology report. Third, the original sentence orders omitted the mandatory conditions under s 20(1B) of the Crimes Act, which are directly concerned with rehabilitation: this omission was treated as indicative of a failure to engage with the rehabilitation objective at the time the RRO was made. The sentencing discretion accordingly miscarried on this ground, and the appeal was allowed.

Grounds 2 and 3 Because the appeal succeeded on Ground 1, the Court proceeded to resentence. On resentence, the Court treated the 10 months and 3 days already served in full-time custody as "exceptional circumstances" under s 20(1)(b)(iii) of the Crimes Act, displacing the statutory presumption of further immediate imprisonment. The Court imposed a fresh sentence of 2 years' imprisonment, with the appellant released forthwith on an RRO for 2 years, incorporating all mandatory conditions and a direction to undertake treatment or rehabilitation programs as directed by a probation officer.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Original sentence (as amended on 16 February 2024) quashed
  • In lieu, the appellant sentenced to imprisonment for 2 years, with immediate release on an RRO on the following conditions for a period of 2 years:
  • Subject to supervision by a probation officer
  • To obey all reasonable directions of the probation officer
  • Not to travel interstate or overseas without written permission of the probation officer
  • To undertake such treatment or rehabilitation programs as the probation officer reasonably directs

Key Takeaways

  • Section 16A(2AAA) of the Crimes Act 1914 (Cth) imposes a mandatory obligation to take into account the objective of rehabilitation as a standalone consideration, distinct from the prospect of rehabilitation under s 16A(2)(n); failure to engage with it constitutes an error that causes the sentencing discretion to miscarry.
  • A sentencing judge may comply with s 16A(2AAA) without citing it expressly, but the remarks on sentence (and the orders made) must otherwise demonstrate actual engagement with the rehabilitation objective.
  • Omitting mandatory conditions for Commonwealth child sex offenders from an RRO under s 20(1B) was treated as evidence that the sentencing court had not properly turned its mind to the rehabilitation objective at the point of making the order.
  • Where an RRO is imposed but is too short to accommodate identified rehabilitative programs, that structural mismatch can itself indicate non-compliance with the s 16A(2AAA) obligation.
  • Time already served in full-time custody can constitute "exceptional circumstances" under s 20(1)(b)(iii) of the Crimes Act, displacing the presumption of further immediate imprisonment on resentence.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 474.27AA
- Crimes Act 1914 (Cth), ss 16A(2), 16A(2AAA), 16E, 19AC, 19AHA, 20
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 67
- Criminal Appeal Act 1912 (NSW), ss 5, 6

Cases
- Chan v R [2023] NSWCCA 206
- Curle v R [2024] NSWCCA 117 (distinguished)
- Darke v R [2022] NSWCCA 52 (distinguished)
- Kentwell v The Queen (2014) 252 CLR 601
- R v A [2004] NSWCCA 292
- R v Bredal [2024] NSWCCA 75
- R v Kain [2004] NSWCCA 143
- R v Medalian (2019) 133 SASR 50
- R v Pham (2015) 256 CLR 550
- RJA v R [2008] NSWCCA 137
- SR v R [2024] NSWCCA 43 (applied)
- The Queen v Kilic (2016) 259 CLR 256