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R v Abbott

R v Abbott

Case [2023] NSWDC 488 18 August 2023

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District Court

New South Wales

Medium Neutral Citation: R v Abbott [2023] NSWDC 488
Hearing dates: 18 August 2023
Date of orders: 18 August 2023
Decision date: 18 August 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Imprisonment sentence of 1 year and 6 months. Immediate release subject to a recognizance order of 3 years.

Catchwords:
CRIME — Child sex offences — Using carriage service to groom person under 16 years for sexual activity
SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law
SENTENCING — Federal offences — Penalties — Imprisonment with immediate release subject to recognisance — Exceptional circumstances
SENTENCING — Mitigating factors — Plea of guilty — Remorse — Steps to rehabilitation — Unlikely to re-offend
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Specific deterrence — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis — Presentence report — psychological reports

Legislation Cited:
CrimesAct 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code (Cth)

Cases Cited:
Adamson v R (2015) 47 VR 268
Barbaro v The Queen (2014) 253 CLR 58
Director of Public Prosecutions (Cth) v Watson (2016) 259 A Crim R 327; [2016] VSCA 73
DPP v Smith [2010] VSCA 215
Hili v The Queen (2010) 242 CLR 520
Hopkins v R [2004] NSWCCA 105
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R (Commonwealth) v Nafarette [2022] NSWDC 225
R v Asplund [2010] NSWCCA 316
R v Bajracharya [2022] ACTSC 276
R v Finch [2022] NSWDC 578
R v Fuller [2010] NSWCCA 192
R v Kelly [1999] UKHL 4; [2000] 1 QB 198
R v Pederson [2021] NSWDC 535
R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
R v R E [2023] NSWCCA 184
R v Rzeminski [2022] NSWDC 731
Re Zoudi (2006) 14 VR 580 at 589; [2006] VSCA 298
Small v R [2020] NSWCCA 216
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
Tootell v R [2012] QCA 273
Totaan v R [2022] NSWCCA 75
Weininger v The Queen (2003) 212 CLR 629
Xiao v R [2018] NSWCCA 4

Category: Sentence
Parties: Bradley Dean Abbott (the offender)
Director of Public Prosecutions (Commonwealth)
Representation:
Counsel:
S Howell (for the offender)
Solicitors:
R El Hage (for Commonwealth Director of Public Prosecutions)
Morrisons Law (for the offender)

File Number(s): 2022/72841

JUDGMENT – EX TEMPORE REVISED

Introduction

On 14 March 2022, Bradley Dean Abbott was arrested by New South Wales police. He was interviewed and eventually made admissions in relation to a serious criminal offence. A search warrant was then issued. His electronic devices were seized and analysed. No evidence of further offences was identified from those devices, but the matter for which he was arrested and subsequently charged is a particularly serious one.
When he came before the Local Court, Abbott accepted his guilt in relation to an offence pursuant to s 474.27 Criminal Code (Cth). The offence…

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 v Abbott

Details

AGLC: R v Abbott [2023] NSWDC 488
Case: [2023] NSWDC 488
Decision Date: 18 August 2023

CaseChat Overview and Summary

In the case of R v Abbott, the defendant was charged with using a carriage service to groom a person under 16 years for sexual activity. The case was heard in the Supreme Court of Victoria, where the court was required to consider the appropriate sentence for this Commonwealth offence. The central legal issues revolved around the principles of sentencing for federal offences, particularly in light of the defendant's early guilty plea, demonstrated remorse, and potential for rehabilitation. Additionally, the court had to balance the objectives of general and specific deterrence with the objective seriousness of the offence.

The court began by considering the defendant's early guilty plea, which was acknowledged as a significant mitigating factor. The court also took into account the defendant's expressed remorse and the steps he had taken towards rehabilitation, which indicated a low likelihood of re-offending. In terms of the objective seriousness of the offence, the court recognised the gravity of using a carriage service to groom a minor for sexual activity, which carried a strong potential for harm and societal impact. The presentence report and psychological evaluations provided further insight into the defendant's background and potential for reform.

After weighing all the mitigating and aggravating factors, the court determined that an imprisonment sentence of one year and six months was appropriate. However, given the defendant's early guilty plea, remorse, and prospects for rehabilitation, the court decided that the sentence should be served with immediate release subject to a recognizance order of three years. This decision reflects a balanced approach to sentencing, aiming to achieve both punitive and rehabilitative objectives.

The final order of the court was an imprisonment sentence of one year and six months, with immediate release subject to a recognizance order of three years. This outcome recognises the severity of the offence while also considering the defendant's personal circumstances and potential for reform.

Orders

Orders of the court

Imprisonment sentence of 1 year and 6 months. Immediate release subject to a recognizance order of 3 years.

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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Citations

R v Abbott [2023] NSWDC 488

Most Recent Citation

R v Lidden [2024] ACTSC 297

Cases Citing This Decision

R v Lidden [2024] ACTSC 297
Citation 1

…2 Hili v The Queen [2010] HCA 45; 242 CLR 520 Meadows v R [2017] VSCA 290 Mertell v The King [2022] ACTCA 69 Rampley v R [2010] NSWCCA 293 R v Abbott [2023] NSWDC 488 R v Bredal [2024] NSWCCA 75 R v Gajjar [2008] VSCA 268; 192 A Crim R 76 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v Mertell [2022] ACTSC 37 R v R…

See all citing cases →

Cases Cited

R v RE [2023] NSWCCA 184
Citation 1 (Para 27)

…I prefer to focus on the particulars of the case, an approach which is at last receiving recognition by appellate courts, see for example: R v R E [2023] NSWCCA 184 at [35].…
R v Finch [2022] NSWDC 578
Citation 2 (Para 46)

…I have received a number of other cases from the defence; Rzeminski , R v Pederson [2021] NSWDC 535; R v Finch [2022] NSWDC 578; and Bajracharya [2022] ACTSC 276. The Commonwealth attached a table of other cases to their submissions.…
R v Rzeminski [2022] NSWDC 731
Citation 3

…] NSWDC 535 R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 R v R E [2023] NSWCCA 184 R v Rzeminski [2022] NSWDC 731 Re Zoudi (2006) 14 VR 580 at 589; [2006] VSCA 298 Small v R [2020] NSWCCA 216 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Tootell v R [2012] QCA 273 Totaan v R [2022] NSWCCA 75 Weininger…
R v Bajracharya [2022] ACTSC 276
Citation 4 (Para 46)

…I have received a number of other cases from the defence; Rzeminski , R v Pederson [2021] NSWDC 535; R v Finch [2022] NSWDC 578; and Bajracharya [2022] ACTSC 276. The Commonwealth attached a table of other cases to their submissions.…
Totaan v The the Queen [2022] NSWCCA 75
Citation 5 (Para 10)

…I note that he is a parent and provider. I do not underestimate the impact gaoling a parent can have on children: s 16A(2)(p) Crimes Act ; Totaan v R [2022] NSWCCA 75.…
R (Commonwealth) v Nafarette [2022] NSWDC 225
Citation 6 (Para 14)

…n, there remains the option of allowing the offender immediate release. He referred me to Judge Buscombe’s decision of R (Commonwealth) v Nafarette [2022] NSWDC 225.…
R v Pedersen [2021] NSWDC 535
Citation 7 (Para 46)

…I have received a number of other cases from the defence; Rzeminski , R v Pederson [2021] NSWDC 535; R v Finch [2022] NSWDC 578; and Bajracharya [2022] ACTSC 276. The Commonwealth attached a table of other cases to their submissions.…
Small v R [2020] NSWCCA 216
Citation 8 (Para 5)

…ng and vulnerable can be subject to predatory communications from generally much older men for the purpose of their sexual gratification: Small v R [2020] NSWCCA 216.…
Xiao v R [2018] NSWCCA 4
Citation 9 (Para 17)

…For transparency’s sake, and in accordance with the advice of the Court of Criminal Appeal in Xiao v R [2018] NSWCCA 4 at [269] to [278]. I will reduce the otherwise appropriate sentence by 25% to reflect the utilitarian value of the plea. Other values will be synthesised in my determination of the appropriate sen…
Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73
Citation 10 (Para 9)

…or general deterrence and denunciation in matters such as this: R v Porte [2015] NSWCCA 174 at [52]; Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [89].…
R v Pham [2015] HCA 39
Citation 11 (Para 47)

…x of facts that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74].…
R v Porte [2015] NSWCCA 174
Citation 12 (Para 9)

…gly, appellate courts have stressed the need to give primacy to the need for general deterrence and denunciation in matters such as this: R v Porte [2015] NSWCCA 174 at [52]; Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [89].…
Barbaro v The Queen [2014] HCA 2
Citation 13 (Para 47)

…same as in a past case or cases: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74].…
Munda v Western Australia [2013] HCA 38
Citation 14 (Para 54)

…icular, to prevent offending against the vulnerable from repetition of the type of offending by others: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 [52] to [58].…
R v Tootell; ex parte [2012] QCA 273
Citation 15 (Para 59)

…I must consider the statutory context. I considered the helpful citation from the Queensland Court of Appeal in Tootell v R [2012] QCA 273 at [18], taken from R v Kelly [1999] UKHL 4; [2000] 1 QB 198 at [208]:…
R v Asplund [2010] NSWCCA 316
Citation 16 (Para 31)

…The absence of common aggravating features is important when it comes to assess the level of seriousness of this matter. For example, in R v Asplund [2010] NSWCCA 316 at [48] the presence of such aggravating features led to a conclusion that that matter involved a high level of criminality.…
Hili v The Queen [2010] HCA 45
Citation 17 (Para 47)

…te sentence will never be precisely the same as in a past case or cases: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74].…
R v Fuller [2010] NSWCCA 192
Citation 18 (Para 11)

…be committed with relative ease. This they submit is another reason for giving great weight to principles relating to general deterrence: R v Fuller [2010] NSWCCA 192 at [26].…
DPP v Smith [2010] VSCA 215
Citation 19 (Para 33)

…at often has less weight. Often the seriousness of the offence can outweigh personal circumstances, even in the case of a first offender: DPP v Smith [2010] VSCA 215.…
Re Zoudi [2006] VSCA 298
Citation 20 (Para 61)

…I remind myself that the word ‘exceptional’ is a stringent requirement: Re Zoudi (2006) 14 VR 580 at [589]; [2006] VSCA 298 at [28(5)]. While a stringent requirement, it is not an impossible one. In my view, the following factors make this matter exceptional. Those matters relate to the objective and subjective fa…
R v Hopkins [2004] NSWCCA 105
Citation 21 (Para 58)

…result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative: Hopkins v R [2004] NSWCCA 105 at [22]. This requires consideration of the term ‘exceptional circumstances’:…
Weininger v The Queen [2003] HCA 14
Citation 22 (Para 56)

…ge requires an attempt to translate the complexity of the human condition and human behaviour to the mathematics of punishment: Weininger v The Queen (2003) 212 CLR 629 at [24].…
Commissioners of Customs and Excise v. Redrow Group Plc [1999] UKHL 4
Citation 23 (Para 59)

…statutory context. I considered the helpful citation from the Queensland Court of Appeal in Tootell v R [2012] QCA 273 at [18], taken from R v Kelly [1999] UKHL 4; [2000] 1 QB 198 at [208]:…
Adamson v R [2015] VSCA 19451
Citation 24 (Para 7)

…on of the practice of encouraging children to engage in inappropriate sexual behaviour and to protect children from immature decisions: Adamson v R (2015) 47 VR 268 at [27].…
[2000] 1 QB 198 [2000] 1 QB 198
Citation 25 (Para 59)

…ext. I considered the helpful citation from the Queensland Court of Appeal in Tootell v R [2012] QCA 273 at [18], taken from R v Kelly [1999] UKHL 4; [2000] 1 QB 198 at [208]:…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 48)
Crimes Act 1914 (Cth)
1 mention (from Para 10)

Medium Neutral Citation:	R v Abbott [2023] NSWDC 488
Hearing dates:	18 August 2023
Date of orders:	18 August 2023
Decision date:	18 August 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Imprisonment sentence of 1 year and 6 months. Immediate release subject to a recognizance order of 3 years.
Catchwords:	CRIME — Child sex offences — Using carriage service to groom person under 16 years for sexual activity SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law SENTENCING — Federal offences — Penalties — Imprisonment with immediate release subject to recognisance — Exceptional circumstances SENTENCING — Mitigating factors — Plea of guilty — Remorse — Steps to rehabilitation — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Specific deterrence — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis — Presentence report — psychological reports
Legislation Cited:	CrimesAct 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code (Cth)
Cases Cited:	Adamson v R (2015) 47 VR 268 Barbaro v The Queen (2014) 253 CLR 58 Director of Public Prosecutions (Cth) v Watson (2016) 259 A Crim R 327; [2016] VSCA 73 DPP v Smith [2010] VSCA 215 Hili v The Queen (2010) 242 CLR 520 Hopkins v R [2004] NSWCCA 105 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R (Commonwealth) v Nafarette [2022] NSWDC 225 R v Asplund [2010] NSWCCA 316 R v Bajracharya [2022] ACTSC 276 R v Finch [2022] NSWDC 578 R v Fuller [2010] NSWCCA 192 R v Kelly [1999] UKHL 4; [2000] 1 QB 198 R v Pederson [2021] NSWDC 535 R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 R v R E [2023] NSWCCA 184 R v Rzeminski [2022] NSWDC 731 Re Zoudi (2006) 14 VR 580 at 589; [2006] VSCA 298 Small v R [2020] NSWCCA 216 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Tootell v R [2012] QCA 273 Totaan v R [2022] NSWCCA 75 Weininger v The Queen (2003) 212 CLR 629 Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Bradley Dean Abbott (the offender) Director of Public Prosecutions (Commonwealth)
Representation:	Counsel: S Howell (for the offender) Solicitors: R El Hage (for Commonwealth Director of Public Prosecutions) Morrisons Law (for the offender)
File Number(s):	2022/72841