R v Branco

[2025] NSWDC 128

District Court

New South Wales

Medium Neutral Citation:

R v Branco [2025] NSWDC 128

Hearing dates:

13 February 2025

Decision date:

20 February 2025

Jurisdiction:

Criminal

Before:

Priestley SC DCJ

Decision:

(1) The offender is convicted of the offence under section 474.27(1) of the Commonwealth Criminal Code.

(2)   The offender, ADRIAN RADFORD BRANCO, is sentenced a term of imprisonment of 22 months to commence on 20 February 2025 and expiring on 19 December 2026. Execution of the sentence is wholly suspended upon the condition that the offender enter into a recognizance self in the sum of $1.00 without security. To comply with the following conditions:

(a)   that the offender is to be of good behaviour for a period of 22 months to date from 26 February 2025

(b)   that the offender is to comply with the following further conditions:

(i)   Be of good behaviour for a period of two years commencing 20 February 2025.

(ii)   Accept the supervision and guidance from probation officers for that period.

(iii)   Obey all reasonable directions of the probation officer.

(iv)   Not travel interstate or overseas without the written permission of the probation officer; and

(v)   Undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

Catchwords:

CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity

Legislation Cited:

Criminal Code(Cth)

Crimes Act (Cth)

Cases Cited:

Bugmy v The Queen [2013] HCA 37

De La Rosa (2010) NSWLR 79 NSWLR 1

Millwood [2012] NSWCCA 2

R v Bredal [2024] NSWCCA 75

Totaan v The Queen [2022] NSWCCA 75

Xiao v R [2018] NSWCCA 4

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions (Crown)
Adrian Radford Branco (Offender)

Representation:

Counsel:
Mr B Cochrane for the Offender

Solicitors:
Commonwealth Director of Public Prosecutions for the Crown
James Fuggle Rummery Solicitors for the Offender

File Number(s):

2023/208537

JUDGMENT

1. Adrian Branco appears for sentence in respect of one charge under the Criminal Code (Cth). That charge is under section 474.27, of using a carriage service to “groom” persons under 16 years of age. The actual words of the provision are:

(1)   A person (the sender) commits an offence if:

(a)   the sender uses a carriage service to transmit a communication to another person (the recipient); and

(b)   the sender does this with the intention of making it easier to procure the recipient to engage in sexual activity with the sender; and

(c)   the recipient is someone who is, or who the sender believes to be, under 16 years of age; and

(d)   the sender is at least 18 years of age.

2. The maximum penalty for this offence is 15 years imprisonment. I take that maximum sentence into account as a legislative guidepost, indicating the legislature’s view of the seriousness of the matter to assist in arriving at the appropriate sentence.

3. There are no matters to be considered on a section 16BA schedule.

4. The date of the offending was between 5 March 2023 and 16 March 2023. The offender was arrested on 29 June 2023 and spent one day in custody. He was not on conditional liberty at the time of the offending.

The facts

5. The facts are fully set out in the statement of facts which form part of exhibit A. The offender was born in November 1983 and the events in question occurred in March 2023 so that he was 39 at the relevant time.

6. He lived in Larnook In northern New South Wales.

7. The offending is made up of text conversations on either a website, chatIW or on the social media platform Snapchat. Such conversations occurred on the 5, 7, 8, 9, and 16 March 2023. Although more than one conversation occurred on some days it can reasonably be said that there were six occasions or days on which this offending occurred or which go to make up this offending.

8. On 5 March contact was made and the assumed online identity told the accused that she was 13 years old to which he replied “oh wow didn’t know you were that young bet you’re a real cutie”. The conversation continued with the offender making flattering remarks of the online identity referring to her lovely smile and suggesting that they move to Snapchat.

9. The offender asked questions like where is your dad. Having switched to Snapchat the offender told the online identity she could delete everything on there, meaning Snapchat. The online identity asked him what his name on Snapchat was and he said it was “Adrian Branco 22”.

10. Still on 5 March the Snapchat conversation continued with further reference to the lovely smile of the online identity with the offender asking to see it to which she replied only if he sent a photo of himself. The offender sent a photo of himself together with his nine-year-old daughter. The online identity sent a photo about which he said to her that she was so pretty.

11. The offender asked the online identity to delete the photos as he did not want to get into trouble. He asked if she had more pictures and he would like to see them.

12. Also on 5 March 2023 the conversation in sexual terms progressed to the offender saying he wished he could have his way with the online identity and to kiss her everywhere and make love to her which he said did not mean sex.

13. The offender then asked if the online identity had full-body pictures of herself and stated “definitely really naughty thoughts lol”.

14. The offender said he was way too old for her and he wished he wasn’t but was happy to just be friends and hoped that was okay with her.

15. Still on 5 March the conversation turned to him saying I bet you look very cute in a swim outfit and suggesting that she should let him see and he will rate her.

16. On 7 March 2023 there was another conversation in the course of which the online identity said do you mean see me naked to which the offender said “yeah okay sweetie hehe I better keep it PG don’t want to get in trouble” and “bet you look really cute in your school outfit to lol”. He then soon suggests that she’s better off in just her birthday suit and when asked what that meant he said “What’s our (sic) born in nothing” and she said do you mean like naked and he said “Yeah hehe”.

17. The 7 March conversation is when things progress to more explicit sex references with the offender saying he wished he could kiss her lovely lips and went on to say “would you let me work my way down to your sexy lips between your hips and kiss them lick them and touch your cute little tits hehe I hope you do (sic) mind me saying that sweetheart”. The conversation then descends into comments such as “spread your legs wide lick and suck on your clit hehe would you like that my sweetheart”. The online identity asked if he meant all that stuff in real life and he said yes.

18. Also in that conversation the offender gave the online identity instructions as to how she should masturbate and in very explicit terms said he wished he was there to show her and said “I would kiss your lips spread your legs your hot pussy really good licking hehe”.

19. On 8 March there was reference to weekend activities and the offender’s hope to take her out somewhere fun one day and agreeing to her proposition that he come to see her in real life.

20. On 9 March there is talk about meeting though it must be said in a somewhat vague way. The parts of the conversation extracted then moved to talk of kissing and cuddling. Before it concluded the offender said he would miss chatting with the online identity and asked when she would be available to chat.

21. On this occasion and on an earlier occasion the offender changed the chat setting so the message would be deleted immediately after being read and the chat was closed. The authorities had interfered with that hence the evidence I infer, though perhaps it is also recorded otherwise by the authorities.

22. The last day of communication by the offender was 16 March when he said he missed chatting with the online identity. The next day 17 March the online identity sent a message saying hi to which the offender did not respond and there were no further communications.

Objective seriousness

23. The above summary of the facts bears out the following:

1. The style or methodology of the offender is to ingratiate himself with flattering talk and then proceed to ultimately explicit sexual language. It is clearly significantly predatory.

2. The progression to Snapchat and the ability to erase messages indicate a degree of sophistication and does not allow for an argument of some kind of impulsivity over the period of these 11 days.

3. That said the offender uses his own name in his Snapchat name and sends actual photos of himself and his daughter. Whilst there was some attempt to hide the activity there was a decided lack of sophistication in hiding his name and identity.

4. The progression to explicit sexual talk follows requests for photographs initially of the person clothed but ultimately with the suggestion that they be naked.

5. The offender knew what he was doing was wrong given the expiring messages and also by asking the online identity to delete the photographs and his reference to getting into trouble.

6. The offending could be described as ingratiating as well as predatory in the way that he talks about just being happy to be friends before launching into the more sexual requests.

7. The explicit content on 7 March adds to the degree of seriousness particularly that set out at paragraph 17 and 18 of the agreed facts.

8. So too the seriousness of the matter is heightened by the instructions as to masturbation.

9. I do not consider this is a case where there was any serious intent on the part of the accused to actually meet up with the 13-year-old and engage in the conduct he describes. I base this on the rather vague references to meeting at paragraph 27 of the agreed facts of what happened on 9 March 2023. This is followed by the next communication on 16 March where what is said is that he will miss chatting to the online identity and there is no communication at all thereafter.

24. Taking all these matters into account my view is that whilst this offending is very concerning and is serious, and whilst I would not place it at the lowest level of seriousness, it is below the mid range.

Subjective case

25. The offender argues for a discount of between 10-15% owing to his plea. Being a Commonwealth matter the state legislative provisions governing the timing of a plea and what discount is to be provided do not apply. In this case the matter was set down for trial to commence on 25 November 2024, was adjourned to 28 November due to illness and then a plea was entered on 2 December which was the further date given for the trial. Just when it was indicated or otherwise known there would be a plea is not clear on the evidence but it is fair to say this was a very late plea with the unavoidable result of a much reduced utilitarian value. Nevertheless there has been some value in the trial not proceeding. I allow 5% as the discount and would indicate that the fact of the plea will be taken into account as demonstrating some contrition albeit belated.

26. The offender has a criminal history. His first offence was in Queensland when aged 18. That was an offence of entering a dwelling and committing an indictable offence. No conviction was recorded. One year later he committed further offending, thus breaking the bond he was on. He was convicted of those offences and was given a suspended one month sentence for one charge and for other charges a 12 month sentence suspended for two years. Those outcomes suggest the matters were not considered serious, without being trivial.

27. In New South Wales in 2003 and up until 2007 there were numerous offences of drive disqualified and there were also a number of minor offences dealt with by way of a suspended sentence. Between 2007 and this offence there was just the one offence in 2019 of cultivating a small amount of a prohibited plant for which he received a community correction order.

28. In my view when this criminal history is considered in the knowledge of the personal background of the offender which is set out below this history does not deny him some leniency. Indeed the offender is to be given some credit for having been able to remain largely prosocial despite the adversity of his background.

29. The case presented by the offender relied largely on the psychological report of Ms. Davey dated 1 February 2025. That report sets out the history of the offender. Whilst the history was not given, nor adopted, on oath it was not the subject of any challenge. There was some cross examination challenging the statement within the report that there were no signs of paraphilia, on the understandable basis that given the nature of the offending one might expect such a finding.

30. In explaining her report in answer to this challenge and by reference in particular to paragraphs 19.2 and 17.5 the point being made by Ms. Davey was not that she was asserting or concluding there was an absence of arousal with what was occurring for she says there was, but that the conduct was motivated to relieve the offender’s boredom which was related to his depression. His conduct she said was not motivated to meet anybody as a consequence. It was put to Ms Davey that it was absurd to say that boredom would lead to conduct which has been admitted to by the plea which constitutes a grooming of a 13-year-old and that such conduct indicates underlying paraphilia. The answer to this was as just stated namely the object of the communications were to relieve boredom and included gaining arousal but was not motivated by any underlying paraphilia.

31. I accept this analysis by the psychologist with one exception. The analysis is consistent with the facts where he disengages after communicating over a period of about 11 days. As noted above the sequence of communications whilst developing in a grooming like way are not communications focused on actually meeting, again as demonstrated by the fact that no actual meeting was ever organised and it was the offender who disengaged. I therefore accept that the offending was not motivated by paraphilia. I reject that there was no intention to make it easier to engage in sexual activity by reason of the communications by reason of the plea; that intention is connected to the non paraphilic intent to do so, i.e. to relieve the boredom.

32. As to the history of the offender it is fair to say that he has led a life very far removed from a person who, to quote Justice Simpson from Millwood [2012] NSWCCA 2 “has had what might be termed a normal or advantaged upbringing”. The written submissions of the offender neatly summarise his history. From the report itself however I note that from the age of 2 to 8 years the offender lived with his parents in cars, tents and abandoned houses. They moved across countries including Portugal, Greece and India. His father preferred to live in the bush and in a car. Life was regimented by his father’s rules. The offender had no toys and no socialising. There was frequent domestic violence between his parents including physical beatings. This included the offender being knocked out by his father. At age 8 the offender was unvaccinated. It was when the family returned to Australia when the offender was 8 that he had his first contact with an education system. He was then involved in a major car accident suffering a head injury and was hospitalised for five months. At age 10 he was placed in foster care for a time due to domestic violence. He once saw his mother suicidal and hanging from a rope in what would appear to be an unsuccessful suicide attempt.

33. At age 14 the offender and his family moved to Cairns but after a significant fight with his father the offender then at that age lived on the streets. At 16 he returned to the northern rivers and lived on the streets in Tweed heads. He reunited with his mother in a caravan park.

34. The offender has three children to two mothers and maintains a relationship with the mothers. He gained support from his most recent partner Megan. These charges have had an impact on his involvement with the children each of whom suffer some kind of mental health issues. They respectively are aged 16, 10 and 5 years of age.

35. Since the age of 21 the offender has had a work history initially as a cook or chef. Later he worked as an organic farmer.

36. He has a history of excessive alcohol use as well as a history of marijuana use though since the arrest in this matter has reduced if not stopped such use.

37. He now lives on a rural property at what was termed a multiple occupancy at Billin Cliff’s village.

38. As to the actual offending he said that at the time he was lonely and far from himself. He had been depressed and was using online chat sites and dating sites and viewing pornography.

39. A range of psychometric testing was undertaken with the report providing detailed interpretation of those results. In terms of diagnosis the psychologist suggests that the offender appears to present with a profile consistent with a range of mental health conditions namely major or mild neurocognitive disorder due to traumatic brain injury; autism spectrum disorder; posttraumatic stress disorder; social anxiety disorder; and persistent depressive disorder.

Sentencing considerations

40. There is no dispute as to the relevant principles of sentencing in this Commonwealth matter. The Crown submissions conveniently set out those principles.

41. Section 17A of the Crimes Act (Cth) provides that a court shall not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances of the case.

42. Section 16A provides that in determining the sentence the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. That section goes on to provide a range of matters that must be taken into account such as may be relevant and known to the court (subsection 2)

43. Each of the parties has addressed such of those factors as are considered relevant, and those that were addressed, or are considered necessary to note, are referred to below. The initial letter reference is to the relevant sub par of s16A(2).

44. (a): The nature and circumstances of the offence have been dealt with above in detailing the facts and assessing the seriousness of the matter.

45. (d), (e) and (ea): These provisions talk of the effect on a victim or any injury from the offence. As already noted in offences of this type the absence of such damage is not mitigatory.

46. (f): The offender only entered his plea on the eve of the hearing so that such contrition that he has exhibited if any was only of late onset. This does not provide him with much assistance, but remains a matter relevant to take into account.

47. (g): This has been dealt with above. There is of course no statutory equivalent to the New South Wales provisions for Commonwealth offending as to the quantification of a discount for a plea of guilty. Xiao v R [2018] NSWCCA 4 established that in Commonwealth cases there may be a discount for the utilitarian value of the plea. As discussed above there will be a discount of 5%.

48. (j) and (ja): There is clearly a need for general and specific deterrence in this case. General deterrence because of the need to ensure that there is not the abuse of children through the rather insidious mechanism of the Internet where offending is so difficult to detect. But particularly so in my view here specific deterrence. The offender’s case is that he was not sexually motivated by the age of the 13-year-old he believed he was communicating with. Despite the mental health and background of the offender making him a less suitable vehicle for deterrence, both specific and general, it needs to be impressed upon him that when suffering depression and other effects of mental ill health, such that he was, on his case which is accepted, looking for diversions, the use of the internet in this way is grossly inappropriate. He was looking to relieve boredom and depression; whilst he may not be the best equipped to consider the consequences of his actions at all times, his case is not that he cannot act appropriately. The evidence of his work history, good relations with ex partners, and minimal offending over a significant period, shows that he can, and counter balances the matters referred to at par 17.6 of Ms Davey’s report to a significant degree. Hence the need to impress upon him that this is not acceptable conduct. This approach also seeks to address the risk for damage to be done to young children communicating in this way.

40. (m) The character, antecedents, age, means and physical and mental condition of the offender. This has been set out by reference to the psychologist report above.

41. The submissions made for the offender based on the background and mental condition are as follows:

1. Firstly, due to his childhood and developmental background he has suffered significant disadvantage. This lessens his moral culpability and also makes him a less appropriate vehicle for general deterrence. I accept this submission.

2. Secondly his state of mental health is such that the principles set out in De La Rosa (2010) NSWLR 79 NSWLR 1, apply. Amongst other consequences this means again he is a less suitable vehicle for general deterrence and that custody may be more onerous. It may also impact on specific deterrence but in my view in the facts of this case there is a need for specific deterrence and his stated mental health is not such that he is beyond appreciating why that is so. As already noted a message needs to be given to the offender that on occasions of being affected by his mental health such as boredom arising from depression in the very complex background that he has whatever he might do it should not be this offending behaviour.

3. The submission is also made, as discussed in De La Rosa that where the mental health issue contributes to the commission of the offence then the moral culpability may be reduced. I accept that in this case there is a clear connection between the background of the offender, his mental health and the committing of his offence so that his moral culpability is further reduced. When one reflects upon this however, whilst that connection is there, for the reasons stated concerning deterrence, the reality is he could have done any number of things to deal with his depression, and happened to choose this offending. For that reason the impact here is less than was argued for.

51. The Crown was at something of a disadvantage as at the time of preparing the written submissions the psychological report was not available. As already noted the history contained in the report was not the subject of challenge. There was a challenge to the conclusions and that has been discussed above.

52. (n): The offender’s prospects of rehabilitation in my view are good. The finding is that the offending was not motivated by a sexual interest in children as explained by Ms. Davey. For that reason the need for rehabilitation in terms of any such sexual interest is non-existent though there is a need, which is a matter of common sense, that he adopt other methods to deal with his depressive condition.

53. In this regard I also note subsection 16 (2AAA), which in respect to Commonwealth child sex offences provides that the court must have regard to the objective of rehabilitating the person and specifically requires the court to consider when determining the non-parole period the sufficient time for the person to undertake a rehabilitation program. In my view this consideration is also relevant to consider when considering whether the matter is a case of exceptional circumstances as that term is used in section 20(1)(b). In my view it is a consideration to be taken into account with other relevant matters.

54. It is relevant to consider the impact of the sentence on the offender’s family and as was established in Totaan [2022] NSWCCA 7 that impact does not need to be significant or exceptional.

55. The offender led evidence that he was in receipt of a carer’s pension in respect of the care that he provides to his mother. It follows that if he is not in the community she will not be able to obtain that care from him and although there was no evidence of an inability for that care to be provided by somebody else I do consider it to be a matter that should be taken into account. That is not only because he is in fact her present carer but also because of their history where they have both endured the domestic violence of the offender’s father and reunited when the offender was approximately 20 when the offender was finding his way in life having spent some time living on the streets and his mother was living in what appears to be very modest circumstances on her own so that the bond between them I would find is strong.

Exceptional circumstances

56. Based on the above findings there is a strong subjective case for this offender in respect of the offending which I have found to be below the mid range.

57. The ultimate submission for the offender was that the court should make a finding of exceptional circumstances with the result that the sentence may be one where there is not imposed a sentence of immediate imprisonment. In respect of what may constitute exceptional circumstances both parties referred to R v Bredal [2024] NSWCCA 75 and the judgment of Dhanji J.

58. Before considering the question of exceptional circumstances it first must be determined whether it is open to consider them for the provision only applies in respect of a sentence of less than three years. That this is so is because by section 19AC a court must fix a recognisance release order where the sentence does not exceed three years. In contrast to section 19AB whereby if the sentence exceeds three years there must be the imposition of a non-parole period, subject to 19AC(3).

59. Taking all of the above matters into account including that the maximum sentence and legislative guidepost is 15 years in my view the appropriate sentence prior to the application of the 5% discount is two years imprisonment. Allowing for the discount I would reduce that term to 22 months, after rounding it down to the nearest month and allowing for the day in custody. It follows that it is relevant to consider the exceptional circumstances question.

60. The basis of seeking a finding of exceptional circumstances is based of course upon the subjective case of the offender. The written submissions of the Crown were not able to address that as they were not aware of that material at the time the written submissions were provided. No point was taken by the Crown about that and there was little said in submissions arguing against the points being made on behalf of the offender that there were exceptional circumstances other than to make it plain that it was not conceded.

61. In Bredal, and particularly at [99] et seq the matter of exceptional circumstances was raised. The key finding was that there had been no error by the sentencing judge in finding exceptional circumstances. It is open to make a finding of exceptional circumstances based on numerous factors even when those factors looked at in isolation may not be themselves exceptional.

62. This case does not require such a nuanced approach. The background of this offender and his life experiences are truly exceptional even though, sadly, the court regularly deals with offenders from significantly disadvantaged backgrounds. In general terms somebody from a disadvantaged background attracting Bugmy principles as here would not for that reason alone necessarily fit the description of having exceptional circumstances.

63. In the present case there are the following factors to consider. Firstly the notable background of disadvantage which at the risk of generalisation is something of a standout feature even amongst cases of disadvantage. Secondly there are the significant mental health issues of the offender. Thirdly there is the evidence of the psychologist which I accept at 17.4 of her report that the offending appeared to be one without signs of paraphilia, which is a matter setting this case apart from concerns commonly arising with this type of offending. Fourthly there is the relatively low level of objective seriousness of the offending itself as assessed above, a result arrived at in circumstances where there had been voluntary disengagement by the offender in the communication, a factor I would note that was also present in Bredal. Fifthly the lack of any prior convictions for offending of this character and indeed on my analysis of his criminal history a criminal history which is minimal once the tumultuous circumstances of his late teens and early 20s were passed. Sixthly in my view the prospects of this offender reoffending are low due to the lack of any paraphilia condition and his objective circumstances where he has exposure to family support in the form of his former partners and his mother and where he has had over the past 15 years if not longer some work history and a decided decrease in offending.

64. For these reasons are find that there are exceptional circumstances. It follows that there should be an order made that sees the offender immediately released upon giving security of the kind referred to in section 20(1)(a).

Orders

1. The offender is convicted of the offence under section 474.27(1) of the Commonwealth Criminal Code.

2. The offender, ADRIAN RADFORD BRANCO, is sentenced a term of imprisonment of 22 months to commence on 20 February 2025 and expiring on 19 December 2026. Execution of the sentence is wholly suspended upon the condition that the offender enter into a recognizance self in the sum of $1.00 without security. To comply with the following conditions:

1. that the offender is to be of good behaviour for a period of 22 months to date from 26 February 2025

2. that the offender is to comply with the following further conditions:

1. Be of good behaviour for a period of two years commencing 20 February 2025.

2. Accept the supervision and guidance from probation officers for that period.

3. Obey all reasonable directions of the probation officer.

4. Not travel interstate or overseas without the written permission of the probation officer; and

5. Undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

**********

Decision last updated: 14 April 2025