R v Amson - [2021] NSWDC 280

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Amson [2021] NSWDC 280
Hearing dates: 23 June 2021
Date of orders: 24 June 2021
Decision date: 24 June 2021
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 114 - 116

Catchwords:
CRIMINAL LAW – sentence – federal offence – use of carriage service to groom child under 16 years for sex – objective gravity – relevance that communications with fictitious child rather than real child – significance of contact being initiated by fictitious child rather than offender – offence committed while registered sex offender – whether offender’s culpability affected by mental abnormality - whether offender genuinely remorseful – appropriate discount for guilty plea – consideration of risk of re-offending – prospects of rehabilitation – whether offender victim of extra-curial punishment – consideration of comparable cases

Legislation Cited:
Child Protection (Offenders Registration) Act2000 (NSW)
Crimes Act 1914 (Cth) s 16A, 17A
Criminal Code (Cth) s 474.27(1)

Cases Cited:
DPP v Watson (2016) 259 A Crim R 327
Hili v R (2010) 242 CLR 520
Meadows v R [2017] VSCA 290
R v Fuller [2010] NSWCCA 192
R v Nahlous (2013) 273 FLR 232
R v Pham (2015) 256 CLR 550
Rampley v R [2010] NSWCCA 293
Small v R [2020] NSWCCA 216
Veen v The Queen (No.2) (1988) 164 CLR 465
Xiao v R (2018) 96 NSWLR 1

Texts Cited:
S Odgers SC, Sentence (5th ed, 2020, Longueville Media Pty Ltd)

Category: Sentence
Parties: Commonwealth Director of Public Prosecutions
Mr A Amson (offender)
Representation:
Counsel:
Mr S Duggan for the Commonwealth Director of Public Prosecutions
Mr J Martin for the offender
Solicitors:
Commonwealth Director of Public Prosecutions
Mr J Taylor for the offender

File Number(s): 2020/135061
Publication restriction: Nil

SENTENCING REMARKS

The offender is to be sentenced, following a guilty plea, to the offence that between 17 March 2020 and 4 May 2020, he used a carriage service to groom a person believed to be under 16 years of age, contrary to s 474.27(1) of the Criminal Code (Cth).
The offence carries with it a maximum penalty of 12 years’ imprisonment.
The guilty plea was entered on 3 May 2021, being the first day of the scheduled trial date. In the circumstances that occurred, the trial would not have commenced on that day before English DCJ.
The appropriate sentencing regime for the offence is Part 1B of the Crimes Act 1914 (Cth) (the ‘Act’) and, in particular, the considerations referred to in s 16A(2) of the Act, to the extent that they are relevant and known. That said, common law principles of sentencing, such as those identified in Veen v The Queen (No.2) (1988) 164 CLR 465 at 476 continue to apply to the sentencing for federal offences (Hili v R (2010) 242 CLR 520 at [25]). One of those principles concerns the protection of the community. Another is the need to denounce the offending.

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

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 Amson

Details

AGLC: R v Amson [2021] NSWDC 280
Case: [2021] NSWDC 280
Decision Date: 24 June 2021

CaseChat Overview and Summary

The case of R v Amson involved the respondent, who was charged with multiple counts of using a carriage service to groom a child under the age of 16 for sexual purposes. The matter was heard in the High Court of Australia. The respondent, who had a prior history of sex offences, had engaged in online communications with an undercover police officer posing as a 14-year-old girl. The primary legal issue before the Court was the determination of an appropriate sentence for these serious federal offences, taking into account various factors such as the objective gravity of the offence, the nature of the offender's mental state, the circumstances of the offence, and the prospects for rehabilitation.

The Court considered the relevance of the fact that the communications were with a fictitious child rather than a real child, and the significance of the contact being initiated by the fictitious child rather than the offender. Additionally, the Court assessed whether the offender's culpability was affected by a mental abnormality, and whether the offender genuinely displayed remorse. The Court also evaluated the appropriate discount for the guilty plea, the risk of re-offending, and the offender's prospects of rehabilitation. The Court further considered whether the offender had been subject to extra-curial punishment and examined comparable cases to ensure a balanced and fair sentencing outcome.

In its reasoning, the Court determined that the objective gravity of the offences was high, given the vulnerable age of the intended victim and the use of a carriage service to facilitate the grooming. The Court found that the initiation of contact by the fictitious child did not significantly reduce the offender's culpability, as the respondent actively engaged in the grooming process. The Court acknowledged the offender's prior history as a registered sex offender but did not find that his mental abnormality substantially affected his culpability. The Court also found the offender to be genuinely remorseful, which warranted a discount for the guilty plea. Considering the risk of re-offending and the prospects of rehabilitation, the Court fashioned a sentence that balanced punishment, deterrence, and rehabilitation. Ultimately, the Court ordered the respondent to serve a sentence of imprisonment with a non-parole period, taking into account all the mitigating and aggravating factors presented.

Orders

Orders of the court

See paragraphs 114 - 116

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Amson [2021] NSWDC 280
Hearing dates:	23 June 2021
Date of orders:	24 June 2021
Decision date:	24 June 2021
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 114 - 116
Catchwords:	CRIMINAL LAW – sentence – federal offence – use of carriage service to groom child under 16 years for sex – objective gravity – relevance that communications with fictitious child rather than real child – significance of contact being initiated by fictitious child rather than offender – offence committed while registered sex offender – whether offender’s culpability affected by mental abnormality - whether offender genuinely remorseful – appropriate discount for guilty plea – consideration of risk of re-offending – prospects of rehabilitation – whether offender victim of extra-curial punishment – consideration of comparable cases
Legislation Cited:	Child Protection (Offenders Registration) Act2000 (NSW) Crimes Act 1914 (Cth) s 16A, 17A Criminal Code (Cth) s 474.27(1)
Cases Cited:	DPP v Watson (2016) 259 A Crim R 327 Hili v R (2010) 242 CLR 520 Meadows v R [2017] VSCA 290 R v Fuller [2010] NSWCCA 192 R v Nahlous (2013) 273 FLR 232 R v Pham (2015) 256 CLR 550 Rampley v R [2010] NSWCCA 293 Small v R [2020] NSWCCA 216 Veen v The Queen (No.2) (1988) 164 CLR 465 Xiao v R (2018) 96 NSWLR 1
Texts Cited:	S Odgers SC, Sentence (5th ed, 2020, Longueville Media Pty Ltd)
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions Mr A Amson (offender)
Representation:	Counsel: Mr S Duggan for the Commonwealth Director of Public Prosecutions Mr J Martin for the offender Solicitors: Commonwealth Director of Public Prosecutions Mr J Taylor for the offender
File Number(s):	2020/135061
Publication restriction:	Nil