District Court
New South Wales
Medium Neutral Citation: R (Commonwealth) v Nafarette [2022] NSWDC 225 Hearing dates: 21 March 2022 Date of orders: 23 March 2022 Decision date: 23 March 2022 Jurisdiction: Criminal Before: Buscombe DCJ Decision: Sentence imposed one of an aggregate sentence of two and a half years’ imprisonment. The sentence commences on 21 March 2022 and expires on 20 September 2024.
Make an order under s 20 of the Commonwealth Crimes Act that the offender be immediately released upon a recognisance in the amount of $500 without surety.
Catchwords: CRIME – Child sex offences – Child abuse material – Using carriage service for child pornography material or child abuse material
SENTENCING – Meaning of ‘exceptional circumstances’ pursuant to s 20(1)(b)(ii) Crimes Act1914 (Cth) – Finding of ‘exceptional circumstances’
SENTENCING – Penalties - Recognisance
Legislation Cited: Crimes Act 1900 (NSW), ss 16A(2AAA), s 16A(2)(h), s 16A(2)(f), s 16A(2)(j), s 17A, ss 19(1)-(5)
Crimes Act1914 (Cth), s 20, s 20(1)(b)(ii)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 67
Cases Cited: Bullock v The Queen [2016] NSWCCA 131
BP v The Queen [2010] NSWCCA 159
Dark v The Queen [2022] NSWCCA 52
DPP v Joner-Collins [2021] VCC 2046
Category: Sentence Parties: Commonwealth Director of Public Prosecutions (Crown)
Jon Christopher Nafarette (Offender)Representation: Solicitors:
Mr Fenel (Crown)
Ms Perera (Offender)
File Number(s): 2020/00284000 Publication restriction: Nil
SENTENCE
Introduction
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The offender stands to be sentenced having pleaded guilty to the following four offences:
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That on 1 October 2020 at Blacktown, he possessed and controlled child abuse material in the form of data held in a computer or contained in a data storage device, and used a carriage service to obtain access to the material. That is an offence under s 474.22A of the Commonwealth’s Criminal Code.
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The second offence is that on or about 26 September 2020, at Blacktown and elsewhere, he solicited material using a carriage service. The material being child abuse material. That is an offence under 474.22(1) of the Criminal Code.
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The third offence is that on about 25 September 2020, at Blacktown and elsewhere, the offender made available child abuse material using a carriage service. That, too, is an offence under s 474.22(1) of the Criminal Code. The fourth offence is that on or about 25 September 2020, at Blacktown, the offender accessed child abuse material using a carriage service. That, too, is an offence under s 474.22(1) of the Criminal Code. Each offence has a maximum penalty of 15 years’ imprisonment.The offender is to be sentenced pursuant to pt 1B of the Commonwealth Crimes Act in particular pursuant to s 16A of that legislation. When sentencing the offender the court is to consider the nature and circumstances of the offences. The nature and circumstances of the offences are essentially set out in…
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- AGLC
- R (Commonwealth) v Nafarette [2022] NSWDC 225
- Case
- [2022] NSWDC 225
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the circumstances of Nafarette's case constituted 'exceptional circumstances' under section 20(1)(b)(ii) of the Crimes Act, which allows for a lesser penalty if such circumstances are found to exist. The respondent's legal team argued that his minimal involvement in the distribution of the material, coupled with his otherwise unblemished criminal record and his genuine remorse, warranted consideration of a lesser sentence. The Commonwealth, on the other hand, submitted that the severity of the offences, particularly in terms of the exploitation of children, necessitated a substantial penalty.
The High Court, in its judgement, recognised the heinous nature of the crimes committed by Nafarette but also considered the mitigating factors presented. The court acknowledged the respondent's limited role in the distribution of the material and his otherwise good character, including his early guilty plea and his efforts to assist law enforcement. These factors, in the view of the court, constituted exceptional circumstances warranting a departure from the usual penalties. Consequently, the court imposed a sentence of two and a half years' imprisonment, with the condition that Nafarette be immediately released on a recognisance of $500 without surety.
The court's final orders were that Nafarette would serve an aggregate sentence of two and a half years, starting on 21 March 2022 and ending on 20 September 2024. However, due to the finding of exceptional circumstances, Nafarette was to be immediately released upon entering into a recognisance of $500 without the need for a surety. This decision balanced the need for punishment and deterrence with the recognition of the mitigating factors present in Nafarette's case.
Orders
Orders of the court
Sentence imposed one of an aggregate sentence of two and a half years’ imprisonment. The sentence commences on 21 March 2022 and expires on 20 September 2024.
Make an order under s 20 of the Commonwealth Crimes Act that the offender be immediately released upon a recognisance in the amount of $500 without surety.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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