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District Court 5 May 2025

R v Stevens

[2025] NSWDC 517

Sexual offences
FORM 1 OFFENCES POSSESS CHILD ABUSE MATERIAL FOUND GUILTY AFTER JURY TRIAL STRONG SUBJECTIVE CIRCUMSTANCES NO PRIOR RECORD “EXCEPTIONAL CIRCUMSTANCES”

Citation: [2025] NSWDC 517
Court: District Court of New South Wales
Date: 5 May 2025
Judge(s): Sutherland SC DCJ

Background

The offender, a man born in 1996, was sentenced for three substantive Commonwealth child sex offences involving online communications of a sexual nature with young males who were initially under 16 years of age. He had been arrested in April 2022 following the execution of a search warrant at his home, where naked images of a 16 year old boy were found on his electronic devices.

He pleaded guilty to two offences: using a carriage service to transmit indecent communications to a person under 16 (contrary to s 474.27A(1) of the Criminal Code Act 1995 (Cth)) and soliciting child abuse material from a person believed to be under 16 (contrary to s 474.22(1)). He pleaded not guilty to a third offence of using a carriage service to procure a person under 16 for sexual activity (s 474.27(1)), but was found guilty following a jury trial in October 2024. Two further related offences were placed on a Form 1 (s 16BA schedule) to be taken into account.

The offending arose from the offender's obsessive interest in buses, which led him to form relationships with younger males who shared similar interests. He had been clinically diagnosed with Autism Spectrum Disorder, which contributed to significant difficulties with social skills and sensory processing from a young age. He had no prior criminal record.

  • What was the appropriate sentence for three Commonwealth child sex offences involving online communications with minors, taking into account Form 1 matters?
  • What weight should be given to the offender's diagnosis of Autism Spectrum Disorder and other strong subjective circumstances, including his lack of prior criminal history?
  • Whether the offender's circumstances constituted "exceptional circumstances" sufficient to justify a non-custodial or partially suspended sentence under Commonwealth sentencing principles (s 20 of the Crimes Act 1914 (Cth)).
  • The appropriate application of Commonwealth sentencing factors under s 16A of the Crimes Act 1914 (Cth), including general and specific deterrence, rehabilitation prospects, and community protection.
  • What discount, if any, should be applied for the guilty pleas (utilitarian value) and how the verdict following trial on the third count affected sentencing.

Decision

The Court conducted a detailed assessment of the offender's subjective circumstances. His Honour found that the offender's Autism Spectrum Disorder was a significant factor. It affected his capacity for social interaction and explained, at least in part, the nature of his engagement with younger males through their shared fixation on buses. The Court drew on expert evidence regarding the offender's cognitive and social functioning. These subjective features were found to be "strong."

Sutherland SC DCJ considered the principles in Bugmy v The Queen regarding background disadvantage, and the relevance of cognitive impairment to sentencing. His Honour concluded that the offender's moral culpability was somewhat reduced by his diagnosis, and that considerations of specific deterrence and denunciation needed to be tempered by his personal circumstances. The Court also noted the offender's complete absence of any prior criminal record.

His Honour found that "exceptional circumstances" existed within the meaning required to justify a recognisance release order under s 20 of the Crimes Act 1914 (Cth). The combination of the offender's Autism Spectrum Disorder, his lack of prior offending, his rehabilitation prospects, and the nature and context of the offending were considered collectively to reach this threshold. The Court emphasised that this finding turned on the particular facts of the case and should not be read as establishing a general principle.

Appropriate discounts were applied for the utilitarian value of the guilty pleas on the two plea indictment counts. No discount was available for the trial indictment count, where the offender was found guilty by the jury.

Orders Made

  • The precise sentencing orders are contained in the full (truncated) judgment. Based on the reasoning summarised above, the Court found "exceptional circumstances" existed and imposed a sentence that reflected the strong subjective features, the Form 1 matters, and the differing maximum penalties applicable to each offence.
  • The Court took into account the two Form 1 offences (possession of child abuse material under s 474.22A(1) and a further indecent communication offence under s 474.27A(1)) when sentencing for the soliciting child abuse material offence (plea indictment Count 2).

Note: The full text of the judgment was truncated in the material provided, so the precise quantum of sentence and form of orders cannot be confirmed from the available text. Practitioners should consult the full judgment on NSW Caselaw for the exact orders.

Key Takeaways

  • The District Court found that a well-supported Autism Spectrum Disorder diagnosis, combined with expert evidence about its impact on social functioning and moral culpability, contributed to a finding of "exceptional circumstances" under s 20 of the Crimes Act 1914 (Cth) in Commonwealth child sex matters. Comprehensive psychological and psychiatric evidence linking the diagnosis to the offending behaviour was central to this finding.

  • Where the offender pleaded guilty to some counts but was found guilty at trial on others, the utilitarian discount was applied only to the plea counts. Each count was assessed distinctly in terms of culpability and discount entitlement.

  • Admitted but uncharged conduct was taken into account under the Form 1 (s 16BA) procedure in Commonwealth matters when sentencing on the related substantive offence, with the relationship between the Form 1 offences and the substantive count bearing on the overall sentencing outcome.

  • Different maximum penalties applied to different counts under s 474.27A(1) depending on when the offending occurred, reflecting the legislative amendment introduced by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), which increased the maximum penalty from 7 to 10 years from 22 June 2020.

  • The finding of "exceptional circumstances" was anchored in the cumulative weight of multiple factors, including the offender's ASD diagnosis, absence of prior criminal record, strong rehabilitation prospects, and the particular context of the offending. No broad proposition was established that ASD will always satisfy the threshold, confirming that such findings remain highly fact-specific.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), s 578A
- Crimes Act 1914 (Cth), ss 16A, 16BA, 20, 23ZD
- Criminal Code Act 1995 (Cth), ss 474.17, 474.19, 474.22, 474.22A, 474.26, 474.27, 474.27A
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)

Cases:
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Blackett v R [2021] NSWCCA 210
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- DPP (Cth) v Guest [2014] VSCA 29
- R v Bredal [2024] NSWCCA 75
- Griffiths v The Queen (1989) 167 CLR 372
- Crowder (a pseudonym) v The King [2024] VSCA 211
- R v Gajjar (2008) 192 A Crim R 76
- R v Howard [2024] NSWDC 514
- R v Jones [2022] SASCA 105