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District Court 1 May 2024

R v Rodda

[2024] NSWDC 190

Sexual offences
CRIME CHILD SEX OFFENCES

Citation: R v Rodda [2024] NSWDC 190
Court: District Court of NSW
Date: 1 May 2024
Judge: Scotting DCJ

Background

The offender, a 19-year-old man from Dubbo, was charged with using a carriage service to procure a person under 16 years for sexual activity, contrary to s 474.26(1) of the Criminal Code Act 1995 (Cth). The offence carries a maximum penalty of 15 years imprisonment. He pleaded guilty in the Local Court and was committed to the District Court for sentence.

The offending occurred over two days in February 2022 on Snapchat. The offender communicated with an assumed online identity operated by police detectives posing as a 14-year-old girl. He misrepresented himself as a 15-year-old boy, established a fabricated romantic relationship, sent explicit images of his genitals, requested explicit images and videos in return, and proposed an in-person meeting at a specific address in Bankstown for sexual activity.

The offender had a severely traumatic background, including in-utero exposure to alcohol and drugs, childhood sexual, physical and psychological abuse, multiple traumatic brain injuries, and diagnoses of Foetal Alcohol Spectrum Disorder (FASD), ADHD, Complex Trauma Disorder, and Oppositional Defiance Disorder. He had borderline to low-average intellectual functioning and a history of serious substance misuse. A Corrective Services NSW psychologist assessed him as above average risk of sexual reoffending and high risk of reoffending generally.

Legal Issues

  • What sentence was appropriate for a first-time adult offender convicted of a federal child grooming offence, given the statutory maximum of 15 years imprisonment?
  • What weight should be given to general and specific deterrence where the offender suffers from a serious and complex mental condition with a direct causal link to the offending?
  • Whether exceptional circumstances existed to justify a non-custodial outcome under s 20(1)(a) of the Crimes Act 1914 (Cth)?
  • What effect the offender's deprived background, mental health conditions, and rehabilitation steps had on moral culpability and prospects of rehabilitation?

Decision

Moral Culpability and Mental Condition

Scotting DCJ found the offender's moral culpability to be very low (at [66]). The court was satisfied that a direct causal connection existed between the offender's serious and complex mental condition and the offending conduct, and that the offender did not truly understand the nature and consequences of his actions (at [63]). The court noted that the messages, while sexually explicit, were substantially below the norm for this type of offence, and that the offender appeared to be genuinely seeking a romantic relationship rather than engaging in a calculated predatory strategy (at [60]).

General and Specific Deterrence

General deterrence is ordinarily a paramount consideration for federal child sex offences (at [65]). However, the court reduced its weight significantly because the offender's mental condition meant he was not an appropriate person to be made an example of (at [66]). Specific deterrence was also reduced, with the court finding the offender required community-based support to manage his condition and reduce reoffending risk rather than a custodial response (at [67]).

Guilty Plea and Remorse

The early guilty plea attracted a 25 percent discount, reflecting genuine remorse, the utilitarian value of the plea, and the facilitation of justice (at [5]). The court accepted the offender's contrition as genuine, noting he acknowledged his conduct caused estrangement from his family and accepted that victims can result from this type of offending (at [68]).

Exceptional Circumstances and Non-Custodial Sentence

The court was satisfied that exceptional circumstances existed warranting a non-custodial sentence under s 20(1)(a) of the Crimes Act 1914 (Cth) (at [77]). Those circumstances arose from the offender's profoundly deprived background, his lack of awareness of the true quality of his actions, and the court's finding that custody would expose him to exploitation, abuse, and marked deterioration in his mental health (at [73], [77]). The court noted the offender had taken meaningful steps toward rehabilitation, including engaging with the NDIS, enrolling in the MERIT program, and achieving a period of abstinence from ice and heroin (at [72]).

Orders Made

  • The offender was convicted of the offence under s 474.26(1) of the Criminal Code Act 1995 (Cth).
  • Without passing sentence, the offender was released on recognisance in the sum of $1.00 under s 20(1)(a) of the Crimes Act 1914 (Cth), conditioned on good behaviour for 2 years from the date of the order.
  • Additional conditions of the recognisance:
  • Subject to supervision by Community Corrections.
  • Must obey all reasonable directions of a Community Corrections officer.
  • Must not travel interstate or overseas without written permission from a Community Corrections officer.
  • Must undertake such treatment or rehabilitation programs as a Community Corrections officer reasonably directs.
  • The offender was required to report to the Dubbo Community Corrections office by 5.00pm on 8 May 2024.
  • A copy of the order was to be posted to the offender at his grandmother's address.

Key Takeaways

  • General deterrence, ordinarily paramount in federal child sex offences, may be afforded significantly less weight where the offender suffers from a serious and complex mental condition with a direct causal connection to the offending conduct (at [65]-[66]).

  • The District Court found that a non-custodial outcome under s 20(1)(a) of the Crimes Act 1914 (Cth) was available despite the gravity of a federal child grooming offence where the court was satisfied that exceptional circumstances existed, including the offender's profound cognitive and psychiatric impairment and the substantial risk that custody would cause further harm (at [73], [77]).

  • A finding of very low moral culpability is open where the totality of an offender's background, including childhood abuse, FASD, traumatic brain injuries, and intellectual impairment, establishes that the offender lacked genuine understanding of the nature and consequences of the conduct (at [63], [66]).

  • Positive steps toward rehabilitation, including NDIS engagement, enrolment in drug treatment programs, and renewed family support, can constitute mitigating factors even where progress remains incomplete and prospects remain mixed (at [72], [75]).

  • Under s 16A(2) of the Crimes Act 1914 (Cth), the list of sentencing factors is not exhaustive and common law principles apply alongside the statutory criteria, enabling courts to give weight to the full circumstances of an offender's background and mental condition (at [4]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914
- Crimes (Sentencing Procedure) Act 1999
- Criminal Code Act 1995 (Cth)

Cases
- Johnson v The Queen (2004) 78 ALJR 616
- R v El Karhani (1990) 21 NSWLR 370
- R v Olbrich (1999) 199 CLR 270