R v MacDonald [2025] NSWDC 409

Citation: R v MacDonald [2025] NSWDC 409
Court: District Court of New South Wales
Date: 15 October 2025
Judge(s): Priestley SC DCJ

Background

The offender, a young man who was 18 years old at the commencement of the offending and 20 at its conclusion, appeared for sentence on five offences under the Commonwealth Criminal Code, with two further matters on a schedule to be taken into account. The offending spanned approximately 23 months between November 2021 and October 2023. Each offence carried a maximum penalty of 15 years imprisonment.

The offending fell into three broad phases. First, the offender accessed child abuse material (CAM) online over an extended period, using three large cloud-storage accounts containing a total in excess of 160,000 items. Second, he communicated with and paid two 14-year-old females to produce and transmit sexually explicit images to him. Third, he used a carriage service to procure a 14-year-old female for sexual activity, conducting an online relationship involving explicit communications before meeting her in person. A search of his devices on 11 October 2023 also revealed CAM in his possession.

The offender entered guilty pleas at an early stage in the Local Court. He had no prior criminal history, was living with his parents, and had been engaged in ongoing psychological treatment since being charged.

Legal Issues

What was the objective seriousness of each offence, and how should the aggregate sentence be structured applying principles of totality?
What weight should be given to the offender's youth, psychological profile, prospects for rehabilitation, and prior good character?
Whether the offender qualified for a recognisance release order under section 20 of the Crimes Act (Cth), and in particular whether "exceptional circumstances" existed to justify release after serving only 3 days of presentence custody.
Whether time spent in presentence custody counted toward satisfying the requirement that a specified period of imprisonment be served before release on a recognisance release order.
What discount applied for the early guilty plea in respect of Commonwealth offences?
What emphasis should be placed on general deterrence versus specific deterrence and rehabilitation, given the offender's age and psychological evidence?

Decision

Objective seriousness of the offences

Priestley SC DCJ assessed each offence individually before arriving at an aggregate term. The offence of accessing CAM was the most serious, assessed as reaching the mid-range. The material involved children as young as infants, depicted penetrative abuse and bestiality, and spanned over 160,000 items across three accounts (at [31]-[36]). The offences involving the communication with and payment of the two young females (MR and TH) were assessed below mid-range and in the low range respectively, given the modest number of images, the relatively low level of indecency of some material, and the considerable factual overlap between the two charges (at [19], [24]). The possession offence arising from the police search was assessed in the low range, given the small number of known images (at [42]). The offence of procuring a person under 16 for sexual activity was described as a fairly mild example of its type, assessed below the mid-range, notwithstanding the grooming elements present (at [49]). The two schedule matters did not add meaningfully to the sentences for the primary offences to which they attached, given significant overlap in the underlying conduct (at [112]-[113]).

Guilty plea discount and prior good character

A discount of 25 percent was applied to each indicative sentence for the early guilty plea, recognising its significant utilitarian value in a Commonwealth context where state provisions for Local Court pleas do not apply (at [52]). The court found that less weight should be given to the offender's prior good character than would ordinarily be the case, given that the offending continued for 23 months (at [53]). Some leniency was nonetheless extended on this basis, particularly in light of the offender's youth and future prospects.

Psychological evidence and nature of offending

The court accepted the evidence of two psychologists, Mr Sheehan and Dr Webster, in preference to the bare conclusions of the Corrective Services structured case note, which the court criticised as an unexplained assertion of the kind condemned in Makita v Sprowles (at [55]). The court found that the offender was not a pedophile but a person in delayed adolescence whose primary motivation was the thrill of engaging with taboo material, albeit with a sexual element present (at [118]). The court accepted that the offender's deviant sexual interest may have diminished with maturation, noting that he had ceased accessing CAM some five to six months before detection and had demonstrated no relapse over approximately two and a half years (at [85]-[91]). The court noted with concern, but without firm resolution, the offender's reported preference for 13 to 14-year-old females, observing that it was unclear whether this was a current preference or a description of his interest at the time of offending (at [106], [118]).

Sentencing structure, exceptional circumstances, and release

Applying principles of totality and significant concurrency across the related offences, the court arrived at an aggregate term of 3 years imprisonment (at [123]). The court then considered whether a recognisance release order (equivalent to a form of suspended release on conditions) was available. On the court's interpretation of section 20 of the Crimes Act (Cth), time already spent in presentence custody counted as the "specified period" of imprisonment that must be served before release, so that the requirement for exceptional circumstances was at least arguably satisfied by the three days already served (at [102]-[103], [120]). The court proceeded to find, in any event, that exceptional circumstances existed in this case when the relevant factors were considered cumulatively: the offender's youth, his delayed adolescence, genuine remorse, exemplary conduct since detection, strong family support, the availability and progress of community-based treatment, the assessment that treatment was more likely to be effective in the community than in custody, and the nature and trajectory of the offending (at [120]-[124]). The court emphasised that general deterrence was the more important deterrence consideration in this type of case, while specific deterrence was of lesser weight given the offender's trajectory and the psychological evidence (at [99]).

Orders Made

The offender was convicted of all offences set out in the sentencing table.
An aggregate sentence of 3 years imprisonment was imposed, commencing 12 October 2025 and expiring 11 October 2028.
The offender was released from custody after serving 3 days, upon entering a recognisance of $1.00 with conditions including:
Good behaviour for the period 15 October 2025 to 11 October 2028.
For the period 15 October 2025 to 14 October 2027: supervision by a probation officer, attendance at Corrective Services Lismore by 22 October 2025, compliance with the probation officer's reasonable directions, no interstate or overseas travel without written permission, participation in directed treatment or rehabilitation programs, and continuation of treatment with Dr Webster for such period as Dr Webster considers appropriate.
A forfeiture order was made in accordance with a separate minute of order.

Key Takeaways

The District Court held that exceptional circumstances justifying a recognisance release order need not arise from a single extraordinary factor; a combination of individually unremarkable circumstances, including youth, genuine remorse, exemplary post-detection conduct, strong rehabilitation prospects, family support, and the superior availability of community treatment, can together satisfy the threshold (at [110], [120]).
Where psychologists' risk assessments rely on static actuarial tools such as the Static-99 without identifying the characteristics of the "typical" sex offender used as the reference point, a sentencing court will have significant difficulty giving that evidence meaningful weight; the court followed the approach noted in Cowling v R [2015] NSWCCA 213 in treating such assessments cautiously (at [57]).
A bare assertion in a sentencing assessment report that risk of reoffending has been elevated, without reasons, is an impermissible ipse dixit of the kind criticised in Makita v Sprowles; courts will discount such conclusions accordingly (at [55]).
Under section 20 of the Crimes Act (Cth), on the court's construction, time spent in presentence custody counts as the "specified period" of imprisonment that must be served before a recognisance release order takes effect, so that release upon sentence is not necessarily "immediate" even where that period is very short (at [101]-[103]). This interpretation was contested by the Crown, and the point may arise for consideration in future cases.
In sentencing for Commonwealth child sex offences, section 16A(2AAA) of the Crimes Act (Cth) requires specific consideration of rehabilitation, including whether conditions about rehabilitation should be imposed and whether the sentence length allows sufficient time for treatment programs; this does not confer preeminence on rehabilitation over general deterrence and proportionate punishment, but reflects Parliament's emphasis that it receive careful attention (at [100]).

Legislation and Cases Referenced

Legislation
- Child Protection ( Offender’s Registration) Act
- Commonwealth Criminal Code
- Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146

Cases
- Cayhadi v R (2007) 168 A Crim R 41
- Cowling v R [2015] NSWCCA 213
- DPP v Garside [2016] VSCA 74
- Makita v Sprowles [2001] NSWCA 305
- R v Bredal [2024] NSWCCA 75
- R v Gent (2005) 162 A Crim R