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District Court 6 May 2024

R v Smith

[2024] NSWDC 242

Sexual offences

Citation: R v Smith [2024] NSWDC 242
Court: District Court of New South Wales
Date: 6 May 2024
Judge(s): S Hanley SC DCJ

Background

An offender aged 77, a retired registered nurse with no prior criminal history, pleaded guilty to three Commonwealth child sexual exploitation offences. The first count arose from a single SMS exchange in 2016 in which he caused child pornography to be transmitted to himself. The second and third counts arose from online communications in 2021, during which he engaged with an undercover NSW Police operative posing as the mother of a 9-year-old child, seeking to procure sexual activity involving the purported child.

The offending conduct for counts 2 and 3 extended across multiple platforms, including Chatiw, Google Hangouts, and Telegram, over a period from 8 June 2021 to 7 July 2021. The offender voluntarily ceased contact approximately eight months before his arrest in March 2022 and spent no time in custody on remand.

The sentencing hearing was delayed because of the offender's deteriorating physical health. The central dispute concerned the appropriate form and severity of sentence, including whether an Intensive Correction Order (ICO) or immediate release on recognisance was available and appropriate.

Legal Issues

  • Whether the new Commonwealth child sexual offence sentencing regime applied to all three counts.
  • Whether an ICO was available for any of the counts, given that some are prescribed sexual offences under s 67 of the Crimes (Sentencing Procedure) Act 1999.
  • What weight to give general deterrence, age, ill health, remorse, prior good character, and voluntary cessation of offending in fixing the appropriate sentence.
  • Whether the objective seriousness of counts 1, 2, and 3 differed, and if so, by how much.
  • Whether "exceptional circumstances" existed for count 3 under s 20(1)(b) of the Crimes Act (Cth) to justify immediate release on recognisance despite the presumption of actual imprisonment.
  • Whether the sentences should be concurrent, cumulative, or partially concurrent, having regard to the principle of totality.

Decision

Count 1: Lowest-end objective seriousness, non-custodial outcome

The 2016 offence involved a single question in an otherwise lawful sexually graphic conversation, after which the offender received a description of a child's sexual abuse. The court found the offender's liability was confined to one question and noted that the offending involved description rather than depiction, with no visual material of a child produced or exchanged (at [60]-[63]). Those features placed count 1 at the lowest end of objective seriousness for offences of that kind. The court was satisfied a non-custodial outcome was appropriate and ordered the offender to enter a recognisance release order to be of good behaviour for six months (at [163]).

Counts 2 and 3: Objective seriousness and available orders

The court placed counts 2 and 3 below the mid-range of objective seriousness. Count 3 was assessed as less serious than count 2 because the sexual activity procured was confined to sexual touching rather than more serious sexual acts (at [71]-[73]). The court took into account that the undercover operative had initiated the majority of contact after the first exchange, which was relevant to duration, but found that the offender was nonetheless a willing participant on each occasion and was surfing the internet to engage in this type of conduct for sexual gratification (at [69]-[70]).

Guilty plea discount and subjective matters

The offender offered to plead guilty at an early point in the criminal justice process and received a 25 per cent reduction from otherwise appropriate sentences (at [80]-[83]). His advanced age of 77, serious physical ill health, voluntary cessation of offending, prior good character spanning nearly 50 years of nursing, and genuine remorse following engagement with Dr Seidler's psychological report were all accepted as mitigating factors (at [87]-[89], [122]-[130]). The court noted that specific deterrence required little emphasis, given the impact of the prosecution on the offender and his family, but confirmed that general deterrence remained a primary sentencing consideration for this category of offending (at [131]-[134]).

Exceptional circumstances and form of sentence

For count 2, which is not a prescribed sexual offence, an ICO was available and imposed. The court was satisfied the offender posed no threat to the community and that the objectives of sentencing could be achieved in the community (at [167]). For count 3, a prescribed sexual offence, an ICO was not available and the presumption of actual imprisonment applied. The court accepted that the combination of the offender's age, serious ill health, voluntary withdrawal from offending, low actuarially assessed risk of reoffending, and prospects for rehabilitation constituted exceptional circumstances, justifying immediate release on a recognisance release order upon a $500 bond (at [159]-[160], [170]).

Orders Made

  • Count 1: Offender convicted and ordered to enter a recognisance release order to be of good behaviour for 6 months.
  • Count 2: Convicted and sentenced to 18 months imprisonment, to be served by way of an Intensive Correction Order in the community, commencing immediately and expiring 5 November 2025. Standard ICO conditions apply.
  • Count 3: Convicted and sentenced to 2 years imprisonment commencing from the date of sentence and expiring 5 May 2026. The offender was immediately released on a recognisance release order upon entering a bond of $500 (deposit not required).
  • Conditions attached to the recognisance for count 3 include: supervision by Community Corrections, compliance with all reasonable directions of a probation officer, prohibition on interstate or overseas travel without written permission, and participation in such treatment or rehabilitation programs as directed.
  • The offender is subject to a child prohibition order.
  • The scheduled offence under s 474.22(1) was taken into account on count 2.

Key Takeaways

  • The District Court confirmed that the 2020 Commonwealth child sexual offence sentencing regime, including the presumption of actual imprisonment under s 20(1)(b), applies only to conduct occurring after 23 June 2020, leaving earlier offending governed by the prior framework (at [8]).

  • An ICO is not available for a prescribed sexual offence under s 67 of the Crimes (Sentencing Procedure) Act 1999, but where an offence is not so prescribed, the court's power to impose an ICO under s 20AB of the Crimes Act (Cth) is unaffected by the s 20(1)(b) presumption of imprisonment, and no "exceptional circumstances" finding is required for the ICO itself (at [9]).

  • Exceptional circumstances under s 20(1)(b) need not arise from a single factor. A combination of advanced age, serious physical ill health, voluntary cessation of offending, low actuarially assessed risk of reoffending, and strong rehabilitation prospects can collectively establish the threshold, even where no individual factor would suffice alone (at [159]-[160]).

  • General deterrence remains a primary sentencing consideration for online child sexual exploitation offences and must be addressed even when an offender is elderly, in poor health, and of prior good character. Those personal mitigatory factors carry less weight than they would for other categories of offending (at [12]-[13], [126], [134]).

  • Where an offender's advanced age and ill health make a custodial sentence materially more onerous than it would be for an ordinary prisoner, that disparity is a recognised mitigating factor in sentencing, but does not displace the court's obligation to impose a sentence that reflects the seriousness of the conduct and the need for denunciation (at [122]-[126]).

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth) , ss 474.19 (1) , 474.22(1) , 474.27AA(2), 474.29AA(1)(a)-(c)
- Part 1B Crimes Act (Cth) , ss 16A (2), 16A (2)(n) 16A(2AAA), 20AB , 20(1)(b), 20(1)(b)(ii)
- Crimes (Sentencing Procedure) Act 1999, s 67
- Penalties and Sentences Act 1992 (QLD) , s 20(1)(b)(ii)

Cases
- Gulyas v Western Australia [2007] WASCA 263
- Liu v R [2023] NSWCCA
- Mertell v R [2022] ACTCA 69and
- R v Jarrold [2010] NSWCCA 69
- R v Tootell ex parte AG [2012] QCA 273