Nathan DAVIES (a pseudonym)[1] v The King - [2023] VSCA 225

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0137

NATHAN DAVIES (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2023
DATE OF JUDGMENT:	18 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 225
JUDGMENT APPEALED FROM:	[2022] VCC 1395 (Judge Lauritsen)

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CRIMINAL LAW – Appeal – Sentence – Multiple charges of using a carriage service to transmit indecent communications to persons under 16 – Multiple charges of using a carriage service to solicit child abuse material – Applicant subject to reporting obligations at time of offending for prior convictions of child sex offences – Applicant failed to report contact with 43 children – Guilty plea – Total effective sentence of 5 years and 3 months’ imprisonment with non-parole period of 3 years and 6 months – Sentencing judge incorrectly considered maximum prescribed penalty for failure to report contact as 10 years’ imprisonment instead of 5 years’ imprisonment – Applicant sentenced to 15 months’ imprisonment for rolled-up charge of failure to report contact – Whether sentencing judge’s error was material and whether a different sentence should be imposed – No reasonable prospect of a lower sentence being imposed – Leave to appeal refused.

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Counsel
Applicant:	Ms A Wong
Respondent:	Ms K Breckweg and Mr P Botros
Solicitors
Applicant:	Victoria Legal Aid
Respondent:	Mr S Bruckard, Solicitor for Commonwealth Public Prosecutions

PRIEST JA:

I agree with Macaulay JA, whose reasons for judgment I have had the considerable advantage of reading in draft.

MACAULAY JA:

Between the dates of 24 January and 7 November 2020, the applicant, then aged 24 years,[2] engaged in conversations with 43 different female children between the ages of 12 and 17 years, through the Facebook Messenger app. He did this using two accounts with usernames, ‘Nat Davies’ and ‘Nathan Davies’.[3] During these conversations, the applicant would ask the children their age and whether they had a boyfriend, inform them of his age, and ask whether they liked older men and would date him.
[2]His date of birth is 27 November 1995.
[3]The applicant’s pseudonym has been substituted for the actual usernames.
The applicant had previously been convicted of a registrable offence pursuant to the Sex Offenders Registration Act 2004 (Vic) (‘SORA’) which required him to report to police any contact with children, within 24 hours of that contact, for a period of eight years. The applicant failed to report his online conversations with any of these 43 children, in breach of his SORA reporting obligations. In relation to 25 of the children, beyond the failure to report the contact, no additional offending occurred. In relation to the other 18 children, however, the applicant also transmitted overtly sexualised messages or requested sexualised images of the children giving rise to further…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSCA 225
Decision Date: 18 September 2023

CaseChat Overview and Summary

The case involved Nathan Davies, who was appealing against a sentence imposed for multiple charges related to using a carriage service to transmit indecent communications to persons under 16, as well as charges of soliciting child abuse material. Davies had previously been convicted of child sex offences and was under reporting obligations at the time of the current offending. He failed to report contact with 43 children. The appeal was heard by the High Court of Australia. The primary legal issue before the court was whether the sentencing judge's error in calculating the maximum penalty for the failure to report contact charge was material and whether a different sentence should be imposed as a result. The court had to determine if the error was significant enough to affect the outcome of the sentencing, and if so, whether a different sentence should be imposed.

The court examined the sentencing judge's error in calculating the maximum penalty for the failure to report contact charge, which was incorrectly assessed as 10 years' imprisonment instead of 5 years. The court held that while the error was significant, it did not materially affect the overall sentence imposed. The sentencing judge had clearly considered the seriousness of the offending and the need for general and specific deterrence. The court concluded that there was no reasonable prospect of a lower sentence being imposed if the error had not been made. Therefore, the appeal against sentence was dismissed, and leave to appeal was refused. The final orders confirmed the original sentence of 5 years and 3 months' imprisonment with a non-parole period of 3 years and 6 months.

Orders