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District Court 1 November 2024

R v Howard

[2024] NSWDC 514

Sexual offences
SUBJECTIVE CONSIDERATIONS ON SENTENCE

Citation: R v Howard [2024] NSWDC 514
Court: District Court of New South Wales
Date: 1 November 2024
Judge: Newlinds SC DCJ

Background

The offender pleaded guilty to one count of using a carriage service to procure a person under 16 years for sexual activity, contrary to s 474.26(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years' imprisonment. Between approximately 1 March and 2 June 2023, the offender used a platform called "Teen Chat" to engage in repeated sexualised communications with an Assumed Online Identity (AOI) operated by an undercover police officer, whom he believed to be a 13-year-old girl.

The communications were persistent and explicit. The offender repeatedly requested in-person sexual meetings, offered to book a hotel, and asked the AOI to visit his home. He was reminded of the supposed victim's age throughout and was aware his conduct was criminal, asking the AOI repeatedly to keep their communications secret from family, friends, and police.

The offender was arrested on 9 June 2023 and granted conditional bail on the same day, resulting in one day of pre-sentence custody. The central sentencing question was whether his cognitive impairment and mental health conditions constituted "exceptional circumstances" under s 20(1)(b)(ii) of the Crimes Act 1914 (Cth), justifying a departure from the statutory presumption of full-time imprisonment.

  • Whether the offending fell below the mid-range of objective seriousness for this class of offence.
  • How to reconcile the apparent tension between s 17A of the Crimes Act 1914 (Cth), which disfavours imprisonment unless no other sentence is appropriate, and s 20(1)(b)(ii), which creates a presumption in favour of full-time custody for this type of Commonwealth offence.
  • Whether the offender's cognitive impairment and mental health conditions constituted "exceptional circumstances" sufficient to rebut the statutory presumption of full-time imprisonment under s 20(1)(b)(ii).
  • The appropriate weight to give to general deterrence, personal mitigation, and subjective factors in sentencing for online child exploitation offences.

Decision

The Court determined that the offending was a serious example of the offence, though it accepted submissions that it fell below the mid-range of objective seriousness. There were no threats, coercion, or sharing of child exploitation material, and the intended victim was not a real child. However, the Court emphasised that the absence of an actual victim did not reduce the moral culpability of the conduct, consistent with the approach in R v Gajjar. The offender's awareness of the criminality of his actions was treated as an aggravating feature.

On the statutory framework, the Court held that s 20(1)(b)(ii) takes priority over s 17A, meaning sentencing begins with a presumption of full-time imprisonment, which can only be displaced by exceptional circumstances. Once exceptional circumstances are established, s 17A then becomes applicable to determine whether a non-custodial order is appropriate.

The Court found that exceptional circumstances did exist in this case. The offender's cognitive impairment and significant mental health conditions were central to this finding. His disabilities meant that the burden of a term of full-time imprisonment would bear more heavily on him than on an offender without such conditions, and the Court accepted that imprisonment would likely have a disproportionately severe effect on him.

Taking into account the plea of guilty and all subjective factors, the Court sentenced the offender to two years' imprisonment but immediately suspended that sentence, ordering his release on a Recognizance Release Order (RRO) with detailed conditions. The Court was careful to note that offences of this nature ordinarily attract stern custodial punishment, and that the outcome in this case reflected the particular and unusual circumstances of this individual offender.

Orders Made

  • The offender is convicted.
  • Sentenced to imprisonment for 2 years, commencing 31 October 2024 and expiring 30 October 2026.
  • Pursuant to s 20 of the Crimes Act 1914 (Cth), the offender is immediately released on a Recognizance Release Order in the amount of $2,000 (without surety) for 2 years expiring 30 October 2026, on the following conditions:
  • Be of good behaviour.
  • Be subject to supervision by Community Corrections for two years.
  • Obey all reasonable directions of his Community Corrections Officer, including not to travel interstate or overseas without written permission.
  • Not use the internet unless supervised by his treating team, including disability support workers and/or his brother.
  • Continue weekly engagement with his treating psychiatrist (Dr Mastroianni) and accept any directions regarding medication.
  • Continue taking anti-libidinal medication as prescribed.
  • Continue taking mood stabiliser and antidepressant medication as prescribed.
  • Three electronic devices (Lenovo laptop, Samsung Galaxy S8+, and Dell PC) forfeited to the Commonwealth pursuant to s 23ZD of the Crimes Act 1914 (Cth).

Key Takeaways

  • Under the Commonwealth sentencing framework, s 20(1)(b)(ii) of the Crimes Act 1914 (Cth) takes priority over s 17A: sentencing for prescribed offences begins with a presumption of full-time custody, and only after exceptional circumstances are found does the court consider whether a non-custodial order is appropriate.
  • Cognitive impairment and serious mental health conditions can, in combination, constitute "exceptional circumstances" sufficient to rebut the presumption of full-time imprisonment, particularly where the evidence establishes that custody would bear disproportionately on that offender.
  • The District Court confirmed that the absence of a real child victim (where an undercover officer operated the AOI) does not reduce the moral culpability of the offending or the seriousness of the conduct.
  • General deterrence carries significant weight in sentencing for online child exploitation offences, and personal mitigating factors such as prior good character and prospects of rehabilitation are routinely given less weight in this sentencing category.
  • A Recognizance Release Order in these circumstances came with detailed, offence-specific conditions, including supervised internet access, ongoing psychiatric treatment, anti-libidinal medication, and forfeiture of all devices used in the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A, 17A, 20(1)(b)(ii), 23ZD
- Criminal Code Act 1995 (Cth), ss 474.26(1), 474.29AA

Cases
- BM v R [2019] NSWCCA 223
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
- DS v R; DM v R [2022] NSWCCA 156
- Lazarus v R [2023] NSWCCA 214
- Markarian v The Queen (2005) 228 CLR 357
- Moiler v R [2021] NSWCCA 73
- R v Asplund [2010] NSWCCA 316
- R v Bredal [2024] NSWCCA 75
- R v Burdon; Ex parte Attorney-General Qld (2005) 153 A Crim R 104
- R v Gajjar (2008) 192 A Crim R 76
- R v Israil [2002] NSWCCA 255
- R v Mueller [2015] NSWCCA 292
- Tector v R [2008] NSWCCA 151
- Tepania v R [2018] NSWCCA 247
- Totaan v R (2022) 108 NSWLR 17