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District Court 20 February 2025

R v Branco

[2025] NSWDC 128

Sexual offences
CRIME CHILD SEX OFFENCES

Citation: R v Branco [2025] NSWDC 128
Court: District Court of New South Wales
Date: 20 February 2025
Judge(s): Priestley SC DCJ

Background

The offender, a 39-year-old man from northern New South Wales, appeared for sentence on one count of using a carriage service to groom a person under 16 years of age, contrary to section 474.27 of the Criminal Code (Cth). The maximum penalty for that offence is 15 years imprisonment.

The offending occurred between 5 and 16 March 2023. The offender engaged in text conversations on the website ChatIW and on Snapchat with an online identity who disclosed being 13 years old. Over six days of contact, the conversations progressed from flattery to explicit sexual discussion and included directions on how the person should masturbate, references to meeting in person, and steps taken to delete the communications.

The offender pleaded guilty, but did so on the eve of the trial date in late November and early December 2024, making the plea very late in the proceedings.

Legal Issues

  • What was the appropriate objective seriousness of the offending within the range for this type of offence?
  • What discount, if any, should be applied for the late guilty plea in a Commonwealth matter?
  • Whether the offender's background, mental health, and the psychologist's evidence about the absence of paraphilia constituted "exceptional circumstances" under section 20(1)(b) of the Crimes Act (Cth), permitting the court to impose a non-custodial or suspended sentence.

Decision

Objective seriousness

The court assessed the offending as serious but below the mid-range for this type of offence (at [24]). Relevant factors included that the conversations, while developing in a grooming-like way, were not focused on arranging an actual meeting, and the offender himself disengaged from the communications (at [31]). The court treated the maximum penalty of 15 years as a legislative guidepost (at [2]).

Plea discount

Because the offending was a Commonwealth matter, the New South Wales statutory provisions governing plea discounts did not apply. The court applied the principle from Xiao v R [2018] NSWCCA 4 that a discount for the utilitarian value of a plea remains available in Commonwealth cases (at [47]). The plea was entered on the second scheduled trial date, making its utilitarian value very low, and a discount of only 5% was allowed (at [25]).

Psychological evidence and motivation

The court accepted the evidence of the psychologist that the offending was motivated by the offender's boredom and depression, rather than any paraphilic interest in children (at [31]). The psychologist's conclusion was that the offender sought arousal to relieve boredom but was not motivated by a sexual preoccupation with the age of the person. The court rejected any suggestion that the admitted intention to facilitate sexual activity negated this finding.

Exceptional circumstances

The court arrived at a pre-discount sentence of two years imprisonment, reduced to 22 months after applying the 5% discount (at [59]). Because the sentence did not exceed three years, it was open to consider whether exceptional circumstances existed under section 20(1)(b) to justify suspension.

The court found exceptional circumstances on six cumulative grounds (at [63]). These were: the offender's standout background of disadvantage from early childhood; significant diagnosed mental health conditions including possible neurocognitive disorder from traumatic brain injury, PTSD, autism spectrum disorder, and persistent depressive disorder; the absence of paraphilia distinguishing this case from typical grooming offending; the relatively low objective seriousness, including voluntary disengagement; the absence of any prior convictions for similar offending and a minimal criminal history in adulthood; and low prospects of reoffending given the absence of paraphilia and the presence of family support and stable circumstances (at [63]-[64]).

Orders Made

  • The offender is convicted of the offence under section 474.27(1) of the Criminal Code (Cth).
  • The offender is sentenced to 22 months imprisonment commencing 20 February 2025 and expiring 19 December 2026.
  • Execution of the sentence is wholly suspended on condition that the offender enter into a recognisance in the sum of $1.00 without security, subject to the following conditions:
  • Be of good behaviour for 22 months from 26 February 2025 (and for two years commencing 20 February 2025).
  • Accept supervision and guidance from probation officers for that period.
  • Obey all reasonable directions of the probation officer.
  • Not travel interstate or overseas without written permission of the probation officer.
  • Undertake treatment or rehabilitation programs as reasonably directed by the probation officer.

Key Takeaways

  • Under Commonwealth sentencing law, a guilty plea entered on the eve of trial attracts only a minimal utilitarian discount. Here, the District Court allowed just 5%, applying the principle from Xiao v R that a plea discount in Commonwealth matters reflects utilitarian value rather than any fixed statutory scale (at [25], [47]).

  • A finding of exceptional circumstances under section 20(1)(b) of the Crimes Act (Cth) can rest on a combination of factors, none of which need be exceptional in isolation. The District Court applied the approach confirmed in R v Bredal [2024] NSWCCA 75 and found that the cumulative weight of the offender's background, mental health, absence of paraphilia, low objective seriousness, minimal relevant criminal history, and low reoffending risk together met the threshold (at [61]-[64]).

  • Psychological evidence that grooming offending was motivated by depression and boredom rather than a paraphilic interest in children is capable of influencing both the assessment of exceptional circumstances and the prospects of rehabilitation, but it does not negate the intention to facilitate sexual activity that is an element of the offence (at [31]).

  • Profound childhood disadvantage attracting Bugmy principles does not automatically constitute exceptional circumstances for the purposes of section 20(1)(b), but it may contribute significantly to such a finding when combined with other factors (at [62]-[63]).

  • The impact of a sentence on a third party, such as a dependent parent, remains a relevant sentencing consideration in Commonwealth matters, and Totaan v The Queen confirms that impact need not be significant or exceptional to be taken into account (at [54]-[55]).

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth)
- Crimes Act (Cth)

Cases
- Bugmy v The Queen [2013] HCA 37
- De La Rosa (2010) NSWLR 79 NSWLR 1
- Millwood [2012] NSWCCA 2
- R v Bredal [2024] NSWCCA 75
- Totaan v The Queen [2022] NSWCCA 75
- Xiao v R [2018] NSWCCA 4