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District Court 18 February 2025

TD v Director of Public Prosecutions

[2025] NSWDC 305

Public order & justice offences
CRIME BREACH OF REPORTING CONDITIONS

Citation: TD v Director of Public Prosecutions [2025] NSWDC 305
Court: District Court of New South Wales
Date: 18 February 2025
Judge(s): D Barrow SC DCJ

Background

The appellant, a registrable person on the NSW Child Protection Register following a 2018 conviction for grooming a child and possession of child abuse material, had complied with his reporting obligations for approximately five years after his release. In late 2024, his long-term relationship broke down and he entered a new relationship with a woman whose four children lived with her. During this period he failed to report his new address, his contact with those children, his use of hire vehicles, and two TikTok usernames. He also sent emails to police containing knowingly false statements about his living arrangements.

The appellant pleaded guilty in the Picton Local Court to 15 offences under section 17(1) of the Child Protection (Offenders Registration) Act 2000 and one offence under section 18 of that Act. The Local Court imposed an aggregate sentence of two years imprisonment with a non-parole period of 14 months. The appellant appealed the severity of that sentence to the District Court, which conducted a de novo rehearing on the existing material.

The appellant's name was anonymised because the proceedings referred to an offence he committed as a child.

Legal Issues

  • Whether the aggregate sentence of two years imprisonment imposed in the Local Court was manifestly excessive having regard to the nature and circumstances of the offending
  • How the various breaches should be characterised in terms of objective seriousness, including the relevance of the absence of any evidence of further offending against children
  • Whether the sentencing purposes of the Act, the appellant's criminal history, and his personal circumstances collectively supported a different sentencing outcome
  • Whether the aggregate sentence should be served by way of full-time imprisonment or an Intensive Correction Order

Decision

Objective seriousness of the offences

The court found that the breaches, while serious given the legislative purposes of the Act, were not gravely serious examples of offending against its provisions (at [41]). The failures to report his new address and contact with his partner's children were connected to the breakdown of his long-term relationship and the commencement of a new one, not to any desire to offend against children (at [30]-[31]). The failures to report hire vehicles and TikTok usernames similarly lacked any evidence of a connection to child-related sexual activity (at [34]-[35]).

The most serious offence

The court identified the section 18 offence of providing false and misleading information as the most serious, because it involved deliberate lies to police about his access to children (at [36]-[37]). The court found, however, that there was no evidence the lies were intended to conceal sexual offending against those children, and that the communication likely arose from panic rather than calculated concealment of abuse (at [37]).

Sentencing statistics and the Local Court sentence

Having regard to Judicial Commission statistics, the court found that the two-year aggregate sentence placed the appellant in the top 1 per cent of all Local Court cases involving section 17(1) offences finalised between July 2020 and November 2024. The court concluded that the features of this case did not warrant such an outcome (at [55]-[56]).

Appropriate sentence

The court applied a 25 per cent utilitarian discount for the early guilty pleas (at [8]) and found that, while the section 5 threshold for imprisonment was crossed (at [52]), the sentence should be served in the community by way of an Intensive Correction Order (at [66]). The court took into account approximately five years of compliance with reporting obligations, the appellant's rehabilitation including establishing a business and becoming a parent, and the absence of any evidence of further offending against children (at [39], [67]-[68]). The pre-sentence custody of two months and 22 days was accounted for by reducing the aggregate term by three months (at [71]).

Orders Made

  • The sentence imposed in the Local Court is quashed
  • The appellant is sentenced to an aggregate term of 13 months imprisonment commencing 18 February 2025
  • The aggregate sentence is to be served by way of an Intensive Correction Order on the following conditions:
  • The offender must not commit any offence
  • The offender must submit to supervision by a community corrections officer and comply with all reasonable directions
  • The offender must complete 100 hours of community service
  • The offender must report to Community Corrections within 7 days

Key Takeaways

  • The District Court confirmed that breaches of the Child Protection (Offenders Registration) Act 2000 must be regarded as serious given the Act's legislative purposes, but that objective seriousness is substantially affected by whether the breaches were connected to further offending against children (at [23], [41]).

  • Where sentencing statistics reveal a large dataset, they can assist in identifying a sentencing range; in this case, a two-year aggregate sentence placed the offender in the top 1 per cent of Local Court outcomes, which the court found was not supported by the features of the case (at [53]-[56]).

  • A finding that an offender does not meet the diagnostic criteria for paedophilic disorder is a relevant consideration in assessing the seriousness of reporting-obligation breaches under the Act (at [26]).

  • Sustained compliance with reporting and supervision obligations over a lengthy period prior to offending, particularly where the offending coincides with a personal crisis such as relationship breakdown, is a mitigating factor that the sentencing court will weigh in determining the appropriate sentence (at [39], [67]).

  • Unsubstantiated assertions in sentencing submissions, and hearsay material in prosecution bundles, may be received and considered as a matter of weight where neither party objects, but the court retains the responsibility to assess what weight such material actually warrants (at [10], [14]).

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000
- Children (Criminal Proceedings) Act 1987
- Crimes Act 1900

Cases
- Cahyadi v R [2007] NSWCCA 1
- Irwin v R [2021] NSWCCA 172
- R v McCarthy [2011] NSWCCA
- State of NSW v TD [2020] NSWSC 1587
- Small v R [2020] NSWCCA 216
- Cahyadi v Regina [2007] NSWCCA 1; 168 A Crim R 41