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District Court 29 November 2024

R v Blick

[2024] NSWDC 569

Sexual offences

Citation: R v Blick [2024] NSWDC 569
Court: District Court of New South Wales
Date: 29 November 2024
Judge(s): Newlinds SC DCJ

Background

The offender pleaded guilty to accessing child abuse material using a carriage service, contrary to s 474.22(1) of the Criminal Code 1995 (Cth). The offending occurred between December 2021 and February 2022 at Burwood, NSW. Police identified the material during a routine inspection conducted because the offender was a registered person under the Child Protection (Offender Registration) Act 2002 (NSW), having at the time been on parole for a similar offence.

Police examined the offender's mobile phone and found 1,665 images and 561 videos, a portion of which depicted young girls in sexual situations. Of the reviewed material, police identified one still image and two videos as child abuse material. All three items depicted real prepubescent children and were classified at Category 1 on the INTERPOL Scale, the most serious category.

The offender had a significant prior record of like offending, which bore directly on the court's assessment of objective seriousness, rehabilitation prospects, and the risk of reoffending.

  • What is the correct sentencing approach for a Commonwealth offence that carries a mandatory minimum head sentence under s 16AAB of the Crimes Act 1914 (Cth)?
  • How do the mandatory minimum provisions interact with the general sentencing principle in s 17A(1) of the Crimes Act, which ordinarily requires a court to consider whether imprisonment is necessary at all?
  • In what circumstances may a court impose a sentence below the mandatory minimum under the exception in s 16AAC, and how far below may it go?
  • What head sentence and non-parole period were appropriate given the facts, the offender's history, and the applicable discounts?

Decision

The mandatory minimum as a yardstick

Newlinds SC DCJ applied the principles recently confirmed by the High Court in Hurt v The King; and Delzotto v The King [2024] HCA 8, and explained in detail by the NSW Court of Criminal Appeal in McGregor v R [2024] NSWCCA 200. The mandatory minimum of four years functions as the lower end of the sentencing yardstick, in the same way that the statutory maximum of 15 years functions as the upper end. Together, those two figures define the range within which the sentencing discretion is to be exercised. The practical effect is that the mandatory minimum raises the starting point for offending at the least serious end of the scale and increases appropriate sentences across the range generally. Comparative cases decided before the mandatory minimum regime are therefore of limited, if any, weight.

The s 17A(1) principle and the s 16AAC exception

Section 17A(1) of the Crimes Act, which requires a court to be satisfied that no other sentence is appropriate before imposing imprisonment, is effectively displaced for offences subject to a mandatory minimum. The exception in s 16AAC permits a court to go below the mandatory minimum, but only where adequate recognition cannot otherwise be given to a guilty plea or cooperation with authorities. That reduction is capped: under McGregor, the total reduction below the statutory minimum cannot exceed 50%, meaning the ultimate floor is 50% of the mandatory minimum.

Sentencing process

The court applied an instinctive synthesis of all relevant factors, excluding the guilty plea and any cooperation discount. It then applied the guilty plea discount separately. The offending, while involving a relatively small volume of material (one image and two videos), was assessed as serious because the material depicted real prepubescent children in sexual acts. The offender's prior record of similar offending, the fact he was on parole at the time, and his history of non-compliance with supervision weighed against him. Some credit was given for the early guilty plea and for steps taken toward rehabilitation.

Result

The court assessed the appropriate head sentence before any discount at eight years imprisonment. After applying a 25% reduction for the early guilty plea (and no further discount for cooperation with authorities), the head sentence was reduced to six years. The non-parole period was set at four years, approximately 66% of the head sentence, reflecting the court's view that a longer period of supervised parole would best serve both the offender's rehabilitation and community protection.

Orders Made

  • The offender was convicted.
  • Sentenced to six years imprisonment, commencing 2 February 2022 and expiring 1 February 2028 (after a 25% reduction for early guilty plea).
  • Minimum non-parole period of four years, commencing 2 February 2022 and expiring 1 February 2026.
  • First eligible for parole on 1 February 2026.
  • The court made a strong recommendation (for the parole authorities) that the supervision plan in the Community Corrections report of 11 November 2024 be implemented during any parole period.

Key Takeaways

  • Following Hurt v The King; and Delzotto v The King [2024] HCA 8, mandatory minimum head sentences under s 16AAB of the Crimes Act 1914 (Cth) function as the lower end of the sentencing yardstick, effectively elevating the appropriate sentence across the entire range for the relevant offence.

  • The general principle in s 17A(1) of the Crimes Act, requiring a court to consider whether imprisonment is necessary at all, is displaced where a mandatory minimum applies.

  • Under s 16AAC, a sentencing court may only go below the mandatory minimum to give adequate recognition to a guilty plea or cooperation with authorities. The NSW Court of Criminal Appeal in McGregor v R [2024] NSWCCA 200 confirmed the maximum permissible reduction is 50% of the mandatory minimum, setting an absolute floor on the sentence.

  • Pre-mandatory minimum comparative sentencing decisions carry little or no weight when sentencing for offences now subject to s 16AAB, because the yardstick has fundamentally changed.

  • Where child abuse material depicts real prepubescent children in sexual acts, the nature and depravity of the material is the primary indicator of objective seriousness; volume of material is a secondary consideration.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth) s 474.22(1)
- Crimes Act 1914 (Cth) ss 16A(1), 16A(2), 16AAB, 16AAC, 17A(1)
- Child Protection (Offender Registration) Act 2002 (NSW)

Cases
- Hurt v The King; and Delzotto v The King [2024] HCA 8
- McGregor v R [2024] NSWCCA 200
- Markarian v The Queen (2005) 228 CLR 357
- Elias v R (2013) 248 CLR 483
- Bugmy v The Queen (2013) 249 CLR 571
- DPP v Latham [2009] TASSC 101
- R v Hurt [2019] ACTSC 148
- R v Delzotto [2021] NSWDC 325
- R v Cacciola (1998) 104 ACrimR 178