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District Court 28 March 2024

R v Ferguson

[2024] NSWDC 130

Sexual offences
CRIME PHYSICAL AND INTELLECTUAL DISABILITIES IMPACT OF THE OFFENDER’S POOR HEALTH PREVIOUS OFFENDING FOR SAME OFFENCE MANDATORY MINIMUM TERM

Citation: R v Ferguson [2024] NSWDC 130
Court: District Court of NSW
Date: 28 March 2024
Judge(s): Fitzsimmons SC DCJ

Background

The offender, a 65-year-old man with an intellectual disability and severe physical health conditions, pleaded guilty to using a carriage service to access child abuse material, contrary to section 474.22(1) of the Commonwealth Criminal Code. Between 1 December 2020 and 31 August 2021, he accessed 128 files depicting prepubescent children of both genders, naked and exposing their genitals, via internet searches on a mobile phone. The material was discovered when police inspected his device during a compliance check under the Child Protection (Offenders Registration) Act 2000.

This was the offender's third encounter with child abuse material offences. He had been convicted of similar offences in 2019 and sentenced again by O'Brien DCJ in May 2020, after committing further offences while on bail pending an appeal. He was released on a recognisance release order in November 2020, and the present offending commenced within one week of that release.

The sentencing hearing required the court to determine the appropriate sentence for the current offence, whether to revoke the earlier recognisance release order, how to structure the two resulting periods of imprisonment, and how to weigh the offender's significant physical and intellectual disabilities against the mandatory minimum sentencing regime.

Legal Issues

  • Whether the previous recognisance release order made by O'Brien DCJ should be revoked due to breach, and if so, what portion of the remaining sentence should be served.
  • The objective seriousness of the current offence and the relevant sentencing factors under section 16A(2) of the Crimes Act 1914.
  • The effect of the offender's mild intellectual disability and mental health conditions on his moral culpability and the weight to be given to deterrence.
  • The effect of the offender's severe physical disabilities and medical conditions on the sentencing exercise.
  • Whether the mandatory minimum sentence of four years applied under section 16AAB of the Act, and whether that minimum could be discounted for the guilty plea.
  • How to structure the overall sentence, including questions of accumulation, concurrency, totality, and whether any exceptional circumstances justified immediate release upon conviction.

Decision

Issue 1: Breach of the recognisance release order

The court was satisfied the offender breached the recognisance release order by failing to be of good behaviour, having commenced the present offending within approximately one week of release. The court accepted the Crown's submission that breaches of non-custodial orders must be treated seriously to avoid discrediting the regime of lesser sentencing options. Accordingly, the court revoked the order and required the offender to serve the remaining eight-month balance of the sentence imposed by O'Brien DCJ (at [55]-[58]).

Issue 2: Objective seriousness of the current offence

The court assessed the offence as falling towards the low end of objective seriousness. The material depicted prepubescent children naked with exposed genitals, but did not involve sexual penetration, cruelty, or discernible physical harm. The number of images, at over 100, was towards the low end of ranges commonly encountered. There was no evidence of payment, involvement in a collaborative network, or sophisticated concealment of the material (at [66]-[68]).

Issue 3: Intellectual disability, mental health, and moral culpability

The court accepted that the offender suffers from a mild intellectual disability and developmental disability, impairing his ability to make independent choices, exercise self-control, and take responsibility. These impairments moderated his moral culpability and the weight given to deterrence, though not substantially, because there was no direct evidentiary link between the impairments and the offending conduct (at [78]-[82]). The court also accepted the offender suffered from depression arising in part from a history of childhood sexual abuse, family estrangement, homelessness, and social isolation (at [83]).

Issue 4: Physical health and the burden of imprisonment

The court found that imprisonment would constitute a greater burden on the offender than for a person in good health. The offender is now a high cervical incomplete quadriplegic, confined to a wheelchair, requiring 24-hour care for all activities of daily living, and dependent on a catheter. The court accepted he would not have access to an equivalent level of care in custody, resulting in significant additional hardship (at [84]-[88]).

Issue 5: Mandatory minimum and the guilty plea discount

Because the offender had been previously convicted of child abuse material offences, section 16AAB of the Act required the court to impose a mandatory minimum sentence of four years imprisonment. Applying the High Court's guidance in Hurt v R; Delzotto v R [2024] HCA 8, and section 16AAC of the Act, the mandatory minimum was reduced by 25 percent to reflect the utilitarian value of the early guilty plea, yielding a term of three years imprisonment (at [93]-[96]).

Issue 6: Structure of the sentence, totality, and recognisance release order

A sentence of three years or less required the court to impose a recognisance release order rather than fix a non-parole period. However, under section 20(1)(b)(ii), a presumption applies that some actual imprisonment must be served for child sex offences unless exceptional circumstances exist. The offender did not contend exceptional circumstances applied, and the court was not satisfied any existed (at [97]-[102]). Taking into account totality principles and the risk of a "crushing" sentence given the offender's very poor health, the court directed that the sentence for the current offence would commence five months into the eight-month breach term, creating a three-month period of concurrency. The offender was ordered to serve 16 months in custody before release on a recognisance release order for the balance (at [103]-[109]).

Orders Made

  • The recognisance release order made by O'Brien DCJ on 26 September 2020 was revoked pursuant to section 20A(5)(c)(i). The offender is to serve the remaining balance of eight months imprisonment, commencing 27 March 2024 and expiring 26 November 2024.
  • The offender was convicted of the present offence and sentenced to three years imprisonment, commencing 26 August 2024 and expiring 25 August 2027.
  • After serving 16 months, the offender is to be released on a recognisance release order in the sum of $1,000 for the remaining one year and eight months, on conditions including: good behaviour; supervision by a probation and parole officer; compliance with reasonable directions; no interstate or overseas travel without permission; no possession of a mobile phone or internet access except for medical purposes; and participation in treatment and rehabilitation programs as directed.
  • The offender's Nubia Z7 mobile phone was forfeited to the Commonwealth pursuant to section 23ZD.

Key Takeaways

  • Under section 16AAB of the Crimes Act 1914, where an offender has a prior conviction for a child abuse material offence, the mandatory minimum sentence of four years applies. The District Court confirmed that this minimum can be discounted for a guilty plea under section 16AAC, here reducing the term from four years to three years for an early plea (at [93]-[96]).

  • A mild intellectual disability and developmental disability may moderate an offender's moral culpability and reduce the weight given to deterrence in sentencing, but those effects are not substantial where there is no direct evidentiary link between the disability and the offending conduct. The court drew on DC v R [2023] NSWCCA 82 and Alkanaan v R [2017] NSWCCA 56 in reaching this conclusion (at [78]-[82]).

  • Severe physical ill-health, including quadriplegia and dependence on 24-hour care, is a recognised mitigating factor in sentencing where imprisonment will impose a greater burden than it would on a healthy person. The court found this consideration particularly significant given the offender's reliance on specialist care that custody cannot replicate (at [86]-[88]).

  • Breach of a recognisance release order is treated seriously. The court applied state-law principles to the Commonwealth breach provisions, holding that leniency in such cases risks discrediting the non-custodial sentencing regime and making courts reluctant to extend those options to future offenders (at [57]-[58]).

  • Totality principles remain operative when structuring Commonwealth sentences involving a breach period and a new term. The court introduced a partial concurrency of three months to avoid a disproportionate cumulative sentence, with the offender's extreme ill-health being a significant factor in that assessment (at [107]-[109]).

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000 , ss 16A(2AAA), 16AAB, 16AAC, 17A, 19
- Commonwealth Criminal Code , s 474.22(1)
- Crimes Act 1914 , ss 16A(2), 17A, 19, 20A(5), 20(1)(b)(ii)

Cases
- Alkanaan v R [2017] NSWCCA 56
- DC v R [2023] NSWCCA 82
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Giles-Adams v R; Preca v R [2023] NSWCCA 122
- Hall v R [2021] NSWCCA 220
- Hesketh v R [2021] NSWCCA
- Hurt v R; Delzotto v R [2024] HCA 8
- Muldrock v R (2011) 244 CLR 120
- R v Burrell (2000) 114 A Crim R 207
- R v MAK; R v MSK (2006) 167 A Crim R 159
- R v Quick; ex parte Attorney-General (QLD) [2006] QCA 47
- R v Hutchinson [2018] NSWCCA 152
- R v Jones [2022] SASCA 105
- R v Morris, unreported, 14 July 1995, NSWCCA
- R v Smith (1987) 44 SASR 587