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District Court 30 August 2024

R v Maloney

[2024] NSWDC 691

Sexual offences

Citation: R v Maloney [2024] NSWDC 691
Court: District Court of NSW
Date: 30 August 2024
Judge: Baker SC DCJ

Background

The offender appeared for sentencing on two charges. The first, a Commonwealth offence, was that on 29 November 2022 he used a mobile phone to transmit child abuse material to four women who were entirely unknown to him, contrary to section 474.22(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 15 years imprisonment. The transmissions included real images of young children being sexually abused, accompanied by graphic text messages describing extreme violence against infants.

The second charge, a State offence dealt with on a certificate under section 166, was possession of child abuse material on 13 December 2022, contrary to section 91H(2) of the Crimes Act 1900 (NSW), which carries a maximum of 10 years imprisonment. Because the court was exercising Local Court jurisdiction for that charge, the effective sentencing ceiling was two years for that offence.

Both offences were committed within days of the offender being released on parole to a residential drug rehabilitation centre. He had an extensive prior criminal history, including offences of personal violence, but no prior convictions for sexual or child sexual offences.

  • What weight should be given to the objective seriousness of the offending, including the nature and volume of the material transmitted and the accompanying textual descriptions of extreme violence?
  • What discount applied for the guilty plea, given it was entered at the first reasonable opportunity but in the face of a strong Crown case?
  • How should the court treat the aggravating circumstance of offending while on conditional liberty, without double-counting, given that the offender's parole was subsequently revoked for this very offending?
  • What commencement date was appropriate for the sentence, having regard to the date of arrest, the expiry of the revoked parole balance, delays in finalisation, and the offender's youth?
  • What relevance did the offender's background disadvantage (including childhood trauma, mental health, and substance abuse) have to the sentencing exercise under the principles in Bugmy v The Queen?

Decision

Baker SC DCJ characterised the objective seriousness of the Commonwealth transmission offence as high. The material involved real child victims subjected to penetrative sexual abuse, and the accompanying messages described torture, rape, and murder of infants in graphic detail. The court identified the transmission to four unsuspecting strangers as a further aggravating feature, as was the fact the offending occurred while the offender was on both parole and conditional bail.

A 25% discount was applied for the guilty plea. While the plea was entered at the first reasonable opportunity and reflected a willingness to facilitate justice, the Crown characterised it as a recognition of the inevitable given the strength of its case. The court accepted that characterisation but still treated the plea as reflecting genuine acceptance of responsibility.

On the commencement date question, the court declined both the Crown's position (12 October 2023, expiry of revoked parole) and the defence's position (13 December 2022, date of arrest). It selected 13 May 2023 as a midpoint, having regard to the timing of the guilty plea in the Local Court, the need to avoid double punishment for the conduct that triggered parole revocation, delays in finalisation, and the risks associated with lengthy periods of custody for young offenders.

The court engaged with the offender's background disadvantage under Bugmy principles, acknowledging significant childhood trauma, mental health difficulties, and substance abuse issues. Those matters were treated as relevant to moral culpability and prospects of rehabilitation, but they did not substantially reduce the objective seriousness of offending the court described as "extremely depraved." The court imposed conditions designed to address rehabilitation, including post-release supervision and a sex offender risk assessment.

Orders Made

  • Sequence 6 (State possession offence): Fixed term of 12 months imprisonment, commencing 13 May 2023 and expiring 12 May 2024.
  • Sequence 1 (Commonwealth transmission offence): 3 years and 9 months imprisonment, commencing 13 August 2023 and expiring 12 May 2027; non-parole period of 2 years and 4 months, expiring 12 December 2025.
  • The offender will serve a combined minimum of 2 years and 7 months before being eligible for parole, with a balance of 1 year and 5 months to be served on parole if released.
  • Parole conditions to include supervision by the Department of Community Corrections, compliance with directions as to treatment and counselling, and referral to a NSW Corrective Services psychologist for a sex offender risk assessment.
  • Direction that the two psychiatric reports of Dr Richard Furst be provided to those responsible for the offender's supervision.

Key Takeaways

  • The District Court confirmed that offending involving the transmission of child abuse material accompanied by graphic descriptions of extreme violence against infants will be assessed at the high end of objective seriousness, even where the offender has relevant background disadvantage.
  • Under Bugmy principles, a history of childhood trauma, mental health difficulties, and substance abuse may reduce moral culpability and inform rehabilitation prospects, but those factors do not operate to substantially lower the assessment of gravity where the offending itself is of an extreme character.
  • A 25% guilty plea discount remained available where the plea was entered at the first reasonable opportunity, even where the Crown described it as a "recognition of the inevitable" in the face of compelling evidence.
  • Where parole is revoked specifically because of the offences being sentenced, the court must guard against double-counting that circumstance as an aggravating factor when it also bears on the appropriate sentence commencement date.
  • Sentence commencement dates involve the exercise of judicial discretion, and a court may fix a date between competing positions advanced by the parties where the balance of relevant factors supports an intermediate outcome.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.22(1)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), s 19AB(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166

Cases:
- Minehan v R [2010] NSWCCA 140
- R v Hutchinson [2018] NSWCCA 152
- Bugmy v The Queen (implicit in "Bugmy considerations" identified in catchwords)