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District Court 25 February 2025

R v Pacey

[2025] NSWDC 53

Sexual offences
CRIME SENTENCE COMMONWEALTH OFFENCES

Citation: R v Pacey [2025] NSWDC 53
Court: District Court of New South Wales
Date: 25 February 2025
Judge(s): Bourke SC DCJ

Background

The offender, an 18-year-old male at the time of the offending, was sentenced for three Commonwealth offences arising from online communications with a 13-to-14-year-old victim. The contact began on TikTok in June 2022 and moved to the messaging platform Discord, where the offender became aware of the victim's age within two weeks and before any sexualised communications occurred.

Over a significant period, the offender sent the victim explicit images and videos of himself, transmitted sexually explicit roleplay-style messages, and manipulated her into creating and sending him sexually explicit photographs and videos of herself. The victim's expressions of discomfort and self-described feeling of obligation, including fear that the offender would self-harm if she refused, featured prominently in the agreed facts.

The offender pleaded guilty at the earliest opportunity to all three charges. The offences carried maximum penalties of 15 years imprisonment (for two of the charges) and 10 years imprisonment (for the third).

  • What was the objective seriousness of each of the three offences, particularly given the degree of factual overlap between them?
  • What weight should be given to the offender's youth, personal circumstances, and rehabilitation prospects in sentencing for serious Commonwealth child sexual offences?
  • Whether a recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Cth) was appropriate in the circumstances, rather than a term of actual imprisonment.

Decision

Bourke SC DCJ assessed the objective seriousness of the offences by reference to factors common to all three: the victim was a real child aged 13 to 14; the offending continued over a significant period; it was committed for the offender's sexual gratification; and the offender had actual knowledge of her age. The Court noted mitigating features, however, including that the age difference was relatively small (the offender being 18), the offending involved no technical sophistication, and there were no threats to publish the material. The Court also found that, while genuine manipulation occurred through the offender's references to self-harm and mental fragility, the offending arose in the context of a relationship involving real mutual friendship and affection rather than deliberate predatory targeting of a stranger.

The Court addressed the significant factual overlap between the three offences carefully, ensuring that the sentencing exercise did not result in double-counting. The Crown had accepted that the three counts could be partitioned so that each captured a distinct category of conduct.

On the question of disposition, the Court placed substantial weight on the offender's age, his extreme psychological fragility and vulnerability, his positive rehabilitation trajectory since the offending, family support, and the assessment that actual imprisonment would expose him to serious harm and likely impede rather than advance his rehabilitation. The Court concluded that sending him into custody would be antithetical to community protection, given the assessed risk that imprisonment would increase his likelihood of reoffending. Having applied a 25 per cent discount for the early guilty plea, the Court determined that a recognizance release order was appropriate.

Orders Made

  • The offender was convicted of all three offences.
  • A two-year term of imprisonment was imposed, but the offender was ordered to be released immediately under s 20(1)(b) of the Crimes Act 1914 (Cth) upon entering a recognizance (a formal undertaking, without sureties) to comply with the following conditions for two years:
  • Be of good behaviour and not commit any offence.
  • Be subject to supervision by a Probation officer.
  • Obey all reasonable directions of the Probation officer.
  • Not travel interstate or overseas without written permission of the Probation officer.
  • Undertake counselling, treatment, and/or rehabilitation as reasonably directed by the Probation officer.
  • The Court advised the offender that breach of any condition could result in arrest and service of the term of actual imprisonment.

Key Takeaways

  • The District Court held that, even for serious Commonwealth child sexual offences, a recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Cth) can be appropriate where the offender's personal circumstances, youth, vulnerability, and rehabilitation prospects collectively justify that course.
  • Factual overlap between multiple charges arising from the same course of conduct requires careful partitioning to avoid double-counting in the sentencing exercise, a step the Court undertook explicitly here.
  • A presumption of harm applies where an actual child is the victim of offences of this kind, and the offender's knowledge of the victim's age is a factor that increases objective seriousness.
  • Where an offender uses references to self-harm and mental fragility to influence a victim's compliance, the court treated this as a form of manipulation relevant to objective seriousness, even in the absence of more overt threats.
  • The principles in Bugmy v R (2013) 249 CLR 571, concerning the weight to be given to an offender's deprived or disadvantaged background, were among the authorities the Court considered alongside the s 16A(2) Crimes Act 1914 (Cth) sentencing framework applicable to Commonwealth offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), including s 16A(2) (sentencing factors) and s 20(1)(b) (recognizance release orders)

Cases
- Bugmy v R (2013) 249 CLR 571
- CDPP v De La Rosa [2010] NSWCCA 194
- Crowder v The King [2024] VSCA 211
- R v Bredal [2024] NSWCCA 75
- R v TBE [2024] QCA 204
- TM v R [2023] NSWCCA 185
- VP v R [2010] NSWCCA 159