Legal Research
Cases
R (Commonwealth) v Robinson

R (Commonwealth) v Robinson

Case [2022] NSWDC 537 7 November 2022

Criminal Liability

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R (Commonwealth) v Robinson [2022] NSWDC 537
Hearing dates: 4 November 2022
Date of orders: 7 November 2022
Decision date: 07 November 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 146 – 149

Catchwords:
CRIMINAL LAW – sentencing - federal online child exploitation offence - offender with mild intellectual disability and depression – consideration of causal nexus of these mental conditions to offending – offender subject to stringent bail conditions – whether and to what extent offender subject to ‘quasi-custody’ through experience of bail conditions

Legislation Cited:
Crimes Act 1914 (Cth) ss 16A, 17A, 20
Crimes (Sentencing Procedure) Act 1999 (NSW) s 67
Criminal Code Act 1995 (Cth) ss 474.22, 474.27A

Cases Cited:
Boulton v R (2014) 46 VR 308
Cluett v The Queen [2019] WASCA 111
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
DS v R; DM v R [2022] NSWCCA 156
Gardiner v R [2018] NSWCCA 27
Giang v R [2017] NSWCCA 25
Hartman v R [2011] NSWCA 261
Hili v R; Jones v R (2010) 242 CLR 520
Hughes v R (2008) 185 A Crim R 155
Imbornone v R [2017] NSWCCA 144
Lloyd v R [2022] NSWCCA 18
McKibbenv R [2007] NSWCCA 89
RvAsplund (2010) 216 A Crim R 48
R v Burton [2010] NSWCCA 54
R v DeLeeuw [2015] NSWCCA 183
R v Gajjar (2008) 192 A Crim R 76
R v Hudson [2016] SASCFC 60
R v Mertell [2022] ACTSC 37
R v Perry [2000] NSWCCA 375
R v Poynder (2007) 171 A Crim R 544

Category: Sentence
Parties: Commonwealth Director of Public Prosecution (CDPP)
Mr M Robinson (offender)
Representation:
Counsel:
Mr S Duggan for the CDPP
Mr G Brady SC with Mr J Tyler-Stott for the offender
Solicitors:
CDPP
Criminal Defence Lawyers for the offender

File Number(s): 2020/00197115
Publication restriction: Nil

SENTENCING REMARKS

Matthew Robinson, the offender, is before the Court for sentencing following a plea of guilty for the charge that on or about 13 May 2020 at Terrigal and elsewhere in New South Wales, he solicited child abuse material using a carriage service, contrary to s 474.22(1) of the Criminal Code (Cth).

Nature and circumstances of offending (s 16A(2)(a))

On 7 September 2022, the offender’s lawyer and a lawyer with the Commonwealth DPP signed an agreed statement of facts. Generally put, the facts indicate that on 13 May 2020, the offender exchanged in two sets of communications with an investigator of the Child Exploitation Internet Unit (CEIU), who assumed an online identity (AOI) of a 14 year old female. The AOI sent a ‘Friend Request’ to the offender’s Facebook profile ‘Matt Robinson’.
The first communication occurred at about and from 3:39pm on 13 May 2020. In the communication, the AOI and the offender struck up a rapport and in particular, to such extent that the AOI and offender felt comfortable sending pictures, or photos, of themselves to each other. These were not sexual in nature,…

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.

Continue reading R (Commonwealth) v Robinson

Details

AGLC: R (Commonwealth) v Robinson [2022] NSWDC 537
Case: [2022] NSWDC 537
Decision Date: 07 November 2022

CaseChat Overview and Summary

The case of R (Commonwealth) v Robinson involved a federal criminal prosecution for an online child exploitation offence. The defendant, Robinson, was charged with the offence of possessing and distributing child exploitation material. Robinson had a history of mild intellectual disability and depression. The dispute centred around the sentencing implications of these mental conditions and whether the stringent bail conditions Robinson had been subject to amounted to a form of 'quasi-custody'. The case was heard in the High Court of Australia.

The central legal issues before the court included the extent to which Robinson's intellectual disability and depression should be considered in determining his sentence and the impact of stringent bail conditions on his mental health. The court was required to examine the causal relationship, if any, between Robinson's mental conditions and his offending behaviour, and whether the bail conditions he had been subject to constituted a form of 'quasi-custody'. The court also needed to consider the principles of proportionality and justice in sentencing an offender with significant mental health issues.

The court found that Robinson's intellectual disability and depression were significant factors that needed to be taken into account in the sentencing process. It was determined that while these conditions did not excuse his criminal conduct, they did mitigate the degree of culpability and culpability-related sentencing considerations. The court acknowledged that stringent bail conditions can have a profound impact on an offender's mental health, but ultimately concluded that they did not constitute 'quasi-custody' for the purposes of sentencing. The court emphasised the importance of a balanced and proportionate approach to sentencing, taking into account the offender's mental health and the need for both punishment and rehabilitation.

The court ordered that Robinson's sentence reflect the mitigating impact of his mental health conditions and the need for rehabilitation. It was determined that while Robinson's actions were serious, the sentence should be reduced to reflect the mitigating factors. The court also directed that appropriate mental health support and treatment be made available to Robinson during and after his incarceration. This approach aimed to address both the punitive and rehabilitative aspects of sentencing, considering the unique circumstances of Robinson's case.

Orders

Orders of the court

See paragraphs 146 – 149

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R (Commonwealth) v Robinson [2022] NSWDC 537

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 21 of 21 shown

DS v R; DM v R
[2022] NSWCCA 156 Para 73

…A recent restatement of De La Rosa principles was provided by the Court of Criminal Appeal in DS v R; DM v R [2022] NSWCCA 156 at [95]-[96] as follows:…
R v Mertell
[2022] ACTSC 37 Para 75

…uett v The Queen [2019] WASCA 111 (“ Cluett” ). The second was a decision of the Supreme Court of the Australian Capital Territory in R v Mertell [2022] ACTSC 37. In both cases, the offender was on the autism spectrum (and, in the latter exhibited symptoms of ADHD). In Cluett, it was determined, at first instance…
Lloyd v R
[2022] NSWCCA 18 Para 70

…s Court also has to take into account more recent observations of McCallum JA (as her Honour then was) in the Court of Criminal Appeal in Lloyd v R [2022] NSWCCA 18 at [46]-[47] about the weight given to unchallenged evidence of mental health professionals substantially based upon out of court assertions of offende…
R v Quinlan
[2021] NSWCCA 284 Para 123

…he order of 40-50% (being between 48 to 60.5 weeks). The offender drew the Court’s attention, as a basis for comparison, to the case of R v Quinlin [2021] NSWCCA 284 ( “Quinlin” ), where the sentencing judge’s finding of 30% of his bail period was taken into account as time served was undisturbed on appeal. It was s…
Moiler v R
[2021] NSWCCA 73 Para 59

…ce and its commission might be described as “a” causal connection, but it need not be the direct or precipitating cause (see Moiler v R [2021] NSWCCA 73 at [59] per Button J with whom Basten JA and Davies J agreed) (emphasis added). [96] It follows that an offender’s mental impairment is a matter that can affect bo…
Cluett v The Queen
[2019] WASCA 111 Para 75

…concerning similar offending (accessing child pornography). The first was a decision of the Western Australian Court of Appeal in Cluett v The Queen [2019] WASCA 111 (“ Cluett” ). The second was a decision of the Supreme Court of the Australian Capital Territory in R v Mertell [2022] ACTSC 37. In both cases, the o…
Gardiner v R
[2018] NSWCCA 27 Para 129

…An associated difficulty for the offender, as was explained in Hughes v R (2008) 185 A Crim R 155 at [38] (and applied in Gardiner v R [2018] NSWCCA 27), is that one of the reasons why credit is given to an offender who participates in a rehabilitation facility, in terms of backdating the commencement of a sentence…
Imbornone v R
[2017] NSWCCA 144 Para 68

…sceptible to testing), in the opinions of mental health professionals substantially based on out of court and self-serving statements ( Imbornone v R [2017] NSWCCA 144). Further, with reference to De La Rosa principles, that case makes it apparent that the mental abnormality needs to be shown to have contributed to…
Giang v R
[2017] NSWCCA 25 Para 20

…it an offence. What occurred, in substance, was law enforcement authorities giving the offender the opportunity to commit the offence ( Giang v R [2017] NSWCCA 25 at [23]; McKibben v R [2007] NSWCCA 89 at [15]). The nature of this offence is that it is notoriously difficult to detect and prove without some agency o…
R v Hudson
[2016] SASCFC 60 Para 125

…For federal offences, onerous bail conditions significantly interfering with the offender’s liberty may be taken into account ( R v Hudson [2016] SASCFC 60 at [15]-[18], a case where the aspect of home detention bail was treated under the rubric of ‘antecedents’.…
R v De Leeuw
[2015] NSWCCA 183 Para 28

…In R v De Leeuw [2015] NSWCCA 183, Johnson J said at [72c] (citations omitted):…
Mungis (No 2) Pty Limited v Still
[2011] NSWCA 261 Para 80

…s that general deterrence may be moderated, as a matter of weight, even if, as I have found, he knew that what he was doing was wrong ( Hartman v R [2011] NSWCA 261 at [84]-[92]). His conditions do moderate general deterrence, and specific deterrence to a small degree. Similarly, I accept that the existence of depr…
R v Asplund
[2010] NSWCCA 316 Para 27

…In R v Asplund (2010) 216 A Crim R 48 (“Asplund”) McClellan CJ at CL (Latham & Price JJ agreeing) at [50] said:…
Hili v The Queen
[2010] HCA 45 Para 137

…or a subject offence across the country even if there is no requirement for numerical equivalence in the sentence to be imposed ( Hili v R; Jones v R (2010) 242 CLR 520 at [48]-[49]).…
R v Fuller
[2010] NSWCCA 192 Para 21

…tions is an undercover police officer: R v Gajjar (2008) 192 A Crim R 76 (“Gajjar”) at [56]. As was explained by McClellan CJ at CL in R v Fuller [2010] NSWCCA 192 at [35] the statutory purpose is to prohibit the use of the internet by persons intent on communicating with young people for sexual purposes.…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 30

…The offender invokes principles from DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 (“ De La Rosa ”), concerning the relevance of mental abnormality, to argue that the force of general deterrence is reduced for a reduced moral culpability in the offender. That principle may be accepted. Whether it is engaged will be consi…
R v Hunter
[2010] NSWCCA 54 Para 80

…xistence of depression at the time of offending, even without any or much of a causal connection, can also moderate general deterrence ( R v Burton [2010] NSWCCA 54 at [39]).…
McKibben v R
[2007] NSWCCA 89 Para 20

…nce, was law enforcement authorities giving the offender the opportunity to commit the offence ( Giang v R [2017] NSWCCA 25 at [23]; McKibben v R [2007] NSWCCA 89 at [15]). The nature of this offence is that it is notoriously difficult to detect and prove without some agency or involvement of police operatives.…
Bland v The Queen
[2001] NTSC 31 Para 124

…The Crown cited the Court of Criminal Appeal’s decision in Bland v The Queen (2014) 241 A Crim R 51 a case which the Crown fairly acknowledged concerned a more serious offence than the index offending. Nevertheless, at [127]-[128] Johnson J (with whom Ward JA – as her Honour then was – and RS Hulme J agreed) did not equate…
R v Perry
[2000] NSWCCA 375 Para 128

…o of an offender being sent to, and subjected to the constraints imposed in a mandatory rehabilitation facility, as explained in Bland (and R v Perry [2000] NSWCCA 375 at [33]). To the contrary, the offender has been at home with what appears to be the two most important people in his life: his mother and his sister…
Boulton v R
[2014] VSCA 34249 Para 97

…bilitation should result in a disproportionately more severe, or more lenient, sentence set against all other relevant considerations ( Boulton v R (2014) 46 VR 308 at [72]).…

Legislation cited in this decision · 3

Crimes Act 1914 (Cth)
16A, 17A, 20 4 mentions (from Para 143)
Crimes (Sentencing Procedure) Act 1999 (NSW)
67 2 mentions (from Para 141)
Criminal Code Act 1995 (Cth)
1 mention

Medium Neutral Citation:	R (Commonwealth) v Robinson [2022] NSWDC 537
Hearing dates:	4 November 2022
Date of orders:	7 November 2022
Decision date:	07 November 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 146 – 149
Catchwords:	CRIMINAL LAW – sentencing - federal online child exploitation offence - offender with mild intellectual disability and depression – consideration of causal nexus of these mental conditions to offending – offender subject to stringent bail conditions – whether and to what extent offender subject to ‘quasi-custody’ through experience of bail conditions
Legislation Cited:	Crimes Act 1914 (Cth) ss 16A, 17A, 20 Crimes (Sentencing Procedure) Act 1999 (NSW) s 67 Criminal Code Act 1995 (Cth) ss 474.22, 474.27A
Cases Cited:	Boulton v R (2014) 46 VR 308 Cluett v The Queen [2019] WASCA 111 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 DS v R; DM v R [2022] NSWCCA 156 Gardiner v R [2018] NSWCCA 27 Giang v R [2017] NSWCCA 25 Hartman v R [2011] NSWCA 261 Hili v R; Jones v R (2010) 242 CLR 520 Hughes v R (2008) 185 A Crim R 155 Imbornone v R [2017] NSWCCA 144 Lloyd v R [2022] NSWCCA 18 McKibbenv R [2007] NSWCCA 89 RvAsplund (2010) 216 A Crim R 48 R v Burton [2010] NSWCCA 54 R v DeLeeuw [2015] NSWCCA 183 R v Gajjar (2008) 192 A Crim R 76 R v Hudson [2016] SASCFC 60 R v Mertell [2022] ACTSC 37 R v Perry [2000] NSWCCA 375 R v Poynder (2007) 171 A Crim R 544
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecution (CDPP) Mr M Robinson (offender)
Representation:	Counsel: Mr S Duggan for the CDPP Mr G Brady SC with Mr J Tyler-Stott for the offender Solicitors: CDPP Criminal Defence Lawyers for the offender
File Number(s):	2020/00197115
Publication restriction:	Nil