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District Court 1 October 2024

R v Wood (a pseudonym)

[2024] NSWDC 677

Sexual offences
CHILD EXPLOITATION INTERNET UNIT PRIOR SIMILAR OFFENDING STRONG SUBJECTIVE CIRCUMSTANCES

Citation: R v Wood (a pseudonym) [2024] NSWDC 677
Court: District Court of New South Wales
Date: 1 October 2024
Judge: Sutherland SC DCJ

Background

The offender, referred to by the pseudonym Ronald Wood, appeared for sentence following guilty pleas to two offences involving the sexual exploitation of children. The first was a Commonwealth offence of using a carriage service to procure a child for unlawful sexual activity, contrary to s 474.27AA(1) of the Criminal Code Act 1995 (Cth). The second was a New South Wales offence of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW).

The offender had prior convictions from 2015 in Victoria for possessing child pornography, which made him a registrable person under the NSW registration scheme until 2030. In July 2021, police conducting a compliance inspection at his Port Macquarie address discovered undisclosed electronic devices, online accounts, and child abuse material on his computer. He was convicted in January 2022 for those matters and released from custody shortly after sentence.

Within months of his release, the offender used an online chat platform to initiate contact with an undercover police officer from the Child Exploitation Internet Unit (CEIU), who was posing as a mother with a 9-year-old daughter. The offender sent explicit written material and engaged in detailed communications describing sexual acts involving the fictional child. He was arrested in October 2022 and remained in custody from that date.

  • What sentence was appropriate for the Commonwealth grooming offence, taking into account the mandatory minimum of 4 years that applied because of the offender's prior child sexual abuse convictions?
  • What sentence was appropriate for the state reporting obligation offence?
  • How should the principle of totality apply when structuring concurrent and accumulated sentences across Commonwealth and state offences?
  • What subjective factors, including the guilty pleas, personal circumstances, and prospects of rehabilitation, were relevant to the exercise of the sentencing discretion?

Decision

The court found the Commonwealth offence to be objectively serious. The offender had initiated contact with what he believed to be the mother of a young child, escalated the conversation to sexually explicit territory, and sent written material detailing sexual abuse of the child. His prior similar offending was a significant aggravating feature, and the mandatory minimum of 4 years' imprisonment applied to this charge by operation of s 16AAB of the Crimes Act 1914 (Cth).

For the Commonwealth offence, the court adopted a starting point of 5 years and 4 months, then applied a 25 percent discount for the guilty plea to arrive at a head sentence of 4 years, with a non-parole period of 2 years. The court noted that an extended period of supervised parole was important to support rehabilitation. For the state reporting offence, the court imposed 18 months' imprisonment with a non-parole period of 12 months, after the same 25 percent discount.

Applying the totality principle, the court structured the sentences so that the Commonwealth sentence commenced 9 months after the offender entered custody, rather than immediately accumulating on the state sentence in full. This approach avoided a crushing aggregate sentence while still reflecting the seriousness of both offences and the need for genuine punishment.

The court acknowledged the offender's guilty pleas, evidence of some remorse, and other subjective circumstances as mitigating factors. It also noted that the conditions of custody the offender was likely to experience as a registered sex offender were a relevant consideration, though not determinative.

Orders Made

  • State offence (failure to comply with reporting obligations): 18 months' imprisonment commencing 19 October 2022, expiring 18 April 2024; non-parole period of 12 months, expiring 18 October 2023.
  • Commonwealth offence (use of carriage service to procure child): head sentence of 4 years commencing 19 July 2023, expiring 18 July 2027; non-parole period of 2 years, with the offender eligible for parole on 18 July 2025.
  • Forfeiture order under s 23ZD of the Crimes Act 1914 (Cth): one Huawei mobile phone forfeited to the Commonwealth.
  • Suppression and non-publication order in place for the lifetime of the offender, applying throughout the Commonwealth of Australia, covering the offender's identity and any material that might facilitate identification.

Key Takeaways

  • A mandatory minimum of 4 years' imprisonment under s 16AAB of the Crimes Act 1914 (Cth) applies to a Commonwealth carriage service child procurement offence where the offender has a prior conviction for a child sexual abuse offence, and that minimum governed the sentencing exercise in this case.
  • The District Court confirmed that the totality principle remains operative even where mandatory minimums apply, and that structuring commencement dates to achieve partial concurrency is an available mechanism to avoid a disproportionate aggregate sentence.
  • Prior similar offending is a significant aggravating factor in child sex offences, particularly where the offender re-offended shortly after release from custody for related conduct.
  • Consistent with the approach taken in R v Davis [2023] NSWDC 651, the court declined to reproduce explicit communications in the published sentencing remarks, on the basis that publicly available judgments should not become a vehicle for disseminating child sexual abuse material.
  • A 25 percent guilty plea discount was applied to both the Commonwealth and state offences, reducing the head sentences from their starting points and reflecting the utilitarian value of the pleas.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 474.27AA
- Crimes Act 1914 (Cth), ss 16, 16A, 16AAB, 17A, 20, 23ZD
- Child Protection (Offenders Registration) Act 2000 (NSW), ss 16C, 17(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 67
- Court Suppression and Non-Publication Orders Act 2010 (NSW), ss 7, 8, 11, 12
- Sex Offender Registration Act 2004 (Vic)

Cases
- Hurt v The King; Delzotto v The King (2024) 98 ALJR 485; [2024] HCA 8
- Elwdah v R (2024) 388 FLR 452; [2024] NSWCCA 150
- Darke v R [2022] NSWCCA 52
- R v Delzotto (2022) 298 A Crim R 483; [2022] NSWCCA 117
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- R v Davis [2023] NSWDC 651
- R v Smith [2024] NSWDC 242
- Bahar v R (2011) 45 WAR 100; [2011] WASCA 249
- Western Australia v Collier (2007) 178 A Crim R 310; [2007] WASCA 250
- Rampley v R [2010] NSWCCA 293
- R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316