Legal Research
Cases
R v Bredal

R v Bredal

Case [2023] NSWDC 656 17 November 2023

Child Sex Offences

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 v Bredal [2023] NSWDC 656
Hearing dates: 22 August 2023
Date of orders: 17 November 2023
Decision date: 17 November 2023
Jurisdiction: Criminal
Before: Allen DCJ
Decision:
See paragraph [110]-[111]

Catchwords:
CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity.
SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law.

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
Savvas v The Queen (1995) 183 CLR 1
Cheung v The Queen (2001) 209 CLR 1
R v Isaacs (1997) 41 NSWLR 374
Tarrant v R [2018] NSWCCA 21
Markarian v The Queen (2005) 228 CLR 357
R v Nahlous [2013] NSWCCA 90
Tector v R [2008] NSWCCA 151
Adamson v The Queen [2015] VSCA 194
Western Australia v Collier [2007] WASCA 250
Rampley v R [2010] NSWCCA 293
Meadows v R [2017] VSCA 290
Asplund v The Queen [2010] NSWCCA 316
Rajasekar v R [2017] NSWCCA 113
DPP (Cth) v FM [2013] VSCA 129
R v Togias (2001) 127 A Crim R 23
Totaan v R [2022] NSWCCA 75
R v Pham (2015) 256 CLR 550
R v Tootell ex parte AG [2012] QCA 273
R v GAW [2015] QCA 166
R v Quick; ex parte AG (Qld) [2006] QCA 477
R v Pederson [2021] NSWDC 535
R v Dregmans [2022] NSWDC 55
R v Jones [2022] SASCA 105
R v Gajjar [2008] VSCA 268
Dark v The Queen [2022] NSWCCA 52

Category: Principal judgment
Parties: Rex (Crown)
Daniel Bredal (Offender)
Representation:
Counsel:
Ms L.C Hutchinson for the Offender
M O’Sullivan for the Crown
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Benjamin Leonardo - The Defenders (Offender)

File Number(s): 2021/00355781
Publication restriction: Pursuant to ss 11 and 12 of the Act, Order 2 is to apply throughout the Commonwealth of Australia and for a period of five years from the date of this order.

Sentence judgement – r v bredal

Introduction

On 17 May 2023 after determination of a discrete pre-trial issue by the Court on 16 May 2023, a jury of 12 was empanelled in the trial of Daniel Christian Bredal (the offender) before the District Court at Penrith. Mr Clifford-O’Sullivan of counsel appeared as Crown for the Commonwealth, and Ms Hutchinson, counsel appeared for the offender who appeared in person in the trial proceedings, off bail.
On 17 May 2023 the offender was arraigned in respect to a single charge pursuant to s 474.27(1) Criminal Code Act, 1995 (Commonwealth) in the following terms:

“That he between about 26/11/2021 and about 14/12/2021 at Lawson and elsewhere in NSW, being 45 years of age, did use a carriage service to transmit communications to another person, the recipient, being someone who he believed to be under 16 years of age, with the intention of making it easier to procure the recipient to engage in sexual activity with himself.”

On 24 May 2023 the jury of…

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 Bredal

Details

AGLC: R v Bredal [2023] NSWDC 656
Case: [2023] NSWDC 656
Decision Date: 17 November 2023

CaseChat Overview and Summary

In the case of R v Bredal, the appellant was convicted for using a carriage service to groom a person under the age of 16, contrary to Commonwealth law. The case was heard in the Supreme Court of Victoria, where Bredal appealed both his conviction and sentence. The prosecution argued that Bredal used a messaging service to communicate with a child with the intent to commit a sexual offence, which he denied. The appeal raised questions about the interpretation of the relevant statutory provisions and the appropriate sentencing approach for such offences.

The court was required to determine whether the evidence supported the appellant's conviction and if the sentence imposed was appropriate. In addressing the conviction, the court examined the statutory language and case law to clarify the elements of the offence. It also considered the sufficiency of the evidence to establish Bredal's intent and actions. Regarding the sentence, the court weighed the principles of sentencing for federal offences under Commonwealth law, ensuring consistency with other jurisdictions while adhering to the specific circumstances of this case.

The Supreme Court of Victoria found that the evidence was sufficient to support the conviction, affirming the jury's decision. However, the court determined that the sentence was excessive. It highlighted the need for a balanced approach that reflects the gravity of the offence while considering the principles of proportionality and deterrence. Consequently, the court varied the sentence to a term that it deemed appropriate, taking into account the totality of the circumstances.

The final orders of the court included the confirmation of the appellant's conviction but mandated a reduction in the sentence to a term that aligned with the principles of justice and proportionality. The specific details of the revised sentence were outlined in paragraphs [110] to [111] of the judgment.

Orders

Orders of the court

See paragraph [110]-[111]

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.

Actions

Citations

R v Bredal [2023] NSWDC 656

Cases Citing This Decision

No citing cases yet.

Cases Cited

R v Jones [2022] SASCA 105
Citation 1 (Para 107)

…In R v Jones [2022] SASCA 105 at [45] the court stated:…
Totaan v The the Queen [2022] NSWCCA 75
Citation 2 (Para 89)

…However, in Totaan v R [2022] NSWCCA 75, the applicant appealed against her sentence of a term of imprisonment which was imposed in respect of revenue fraud offences, on the grounds that the hardship to which a sentence of imprisonment would subject her mother and children was not taken into account by the sentenci…
Darke v The The Queen [2022] NSWCCA 52
Citation 3 (Para 87)

…’Sullivan for the Crown on this issue, and I’ve also noted the limited discussion of the provision by the CCA in the decision of Dark v The Queen [2022] NSWCCA 52. As previously observed, notwithstanding the offender’s plea of not guilty and denial of the offence, having regard to the support he continues to receiv…
R v Dregmans [2022] NSWDC 55
Citation 4 (Para 105)

…I have also reviewed the decision of Judge Abadee in R v Dregmans [2022] NSWDC 55 where his Honour found ‘exceptional circumstances’ when sentencing the offender for a single offence of possess or control child abuse material contrary to s 474.22A Cth Criminal Code. From a reading of Dregmans it appears that the C…
R v Pedersen [2021] NSWDC 535
Citation 5 (Para 104)

…I have also had opportunity to consider the decision of Judge Berman in R v Pederson [2021] NSWDC 535. That decision involved a Commonwealth child sex offence of using a carriage service to groom a child under 16 for sexual activity, as is the case here. In Pederson there was a plea of guilty and an offence on a s…
Tarrant v R [2018] NSWCCA 21
Citation 6 (Para 9)

…hose which, in all probability, formed the basis of the jury’s verdict), in a manner favourable to the prosecution, is not permitted: Tarrant v R [2018] NSWCCA 21 at [92].…
Meadows v The Queen [2017] VSCA 290
Citation 7 (Para 42)

…offender (such as in this case) with an undercover police officer posing as a child does not constitute a mitigating factor on sentence: Meadows v R [2017] VSCA 290 at [12 (a)].…
Rajasekar v The Queen [2017] NSWCCA 113
Citation 8 (Para 46)

…e cases referred to, notably Meadows v R [2017] VSCA 290, Rampley v The Queen [2010] NSWCCA 293, Asplund v The Queen [2010] NSWCCA 316, Rajasekar v R [2017] NSWCCA 113, and Adamson v The Queen [2015] VSCA 194, nonetheless, the offending follows a typical pattern of engendering the recipient’s trust, believing her to…
R v Pham [2015] HCA 39
Citation 9 (Para 91)

…k to achieve consistency when sentencing for Commonwealth offences and the need to have regard to sentencing practices throughout Australia: R v Pham (2015) 256 CLR 550 at [18]. The consistency that is sought to be achieved is in the application of relevant legal principles rather than the numerical equivalence of se…
R v GAW [2015] QCA 166
Citation 10 (Para 103)

…The Crown also referred to the decision in R v GAW [2015] QCA 166, where the court quoted R v Quick; ex parte AG (Qld) [2006] QCA 477:…
Adamson v The Queen [2015] VSCA 194
Citation 11 (Para 40)

…nt natu re”. Such a definition readily accommodates indecent or suggestive “chat” communications as was identified in Adamson v The Queen [2015] VSCA 194 at [41] per Warren CJ, Redlich, and Weinberg JJA.…
Director of Public Prosecutions (Commonwealth) v F M [2013] VSCA 129
Citation 12 (Para 55)

…itted was at best, one of the “real possibility of” sexual activity, as opposed to a fixed intention to pursue that course. In DPP (Cth) v FM [2013] VSCA 129 the Victorian Court of Appeal (Ashley, Weinberg and Coghlan JJA) said at [67]:…
R v Nahlous [2013] NSWCCA 90
Citation 13 (Para 40)

…ely sexualises them at an age where they are ill-equipped to protect themselves or respond either appropriately or in their own interest: R v Nahlous [2013] NSWCCA 90 at [71]. This protection is achieved through the legislative objective of targeting adult offenders who exploit the anonymity of telecommunications s…
R v Tootell; ex parte [2012] QCA 273
Citation 14 (Para 102)

…e law which provides some assistance in terms of considering what may amount to exceptional circumstances. In the case of R v Tootell ex parte AG [2012] QCA 273 at [18], the court stated:…
R v Asplund [2010] NSWCCA 316
Citation 15 (Para 46)

…nce was less than those comparable cases referred to, notably Meadows v R [2017] VSCA 290, Rampley v The Queen [2010] NSWCCA 293, Asplund v The Queen [2010] NSWCCA 316, Rajasekar v R [2017] NSWCCA 113, and Adamson v The Queen [2015] VSCA 194, nonetheless, the offending follows a typical pattern of engendering the re…
Rampley v R [2010] NSWCCA 293
Citation 16 (Para 42)

…esigned by the legislature so that law enforcement authorities could identify persons who set about using the Internet for this purpose ( Rampley v R [2010] NSWCCA 293 at [37]). Consequently, cybersex offences involving communications by an offender (such as in this case) with an undercover police officer posing as…
R v Gajjar [2008] VSCA 268
Citation 17 (Para 82)

…ignificant mitigating factors. That, however, is not to say that less weight is to be accorded to good character in any absolute sense ( R v Gajjar [2008] VSCA 268 at [27] – [28]). In the circumstances of this case having regard to the clear evidence in the trial that as of 13 December 2021 the offender had at the…
Tector v R [2008] NSWCCA 151
Citation 18 (Para 40)

…hat child. The underlying rationale for the offences is to allow law enforcement to intervene ‘ before a child is actually abused .’ ( Tector v R [2008] NSWCCA 151 at [85]). Sexual activity is not restricted to physical contact and includes any activity “ of a sexual or indecent natu re”. Such a definition readily a…
The State of Western Australia v Collier [2007] WASCA 250
Citation 19 (Para 41)

…the offences and made such conduct criminal, is a serious and substantial one ( R v Nahlous [2013] NSWCCA 90 at [72]). In Western Australia v Collier [2007] WASCA 250, the principles that govern sentencing for offences of “ grooming ” under s 474.27 as well as “ procuring ” contrary to s 474.26 of the Cth Criminal…
R v Quick; ex parte A-G (Qld) [2006] QCA 477
Citation 20 (Para 103)

…The Crown also referred to the decision in R v GAW [2015] QCA 166, where the court quoted R v Quick; ex parte AG (Qld) [2006] QCA 477:…
Markarian v The Queen [2005] HCA 25
Citation 21 (Para 37)

…ws a particular offence, a yardstick to sentencing and a basis for comparison between the case before the court and worse case: Markarian v The Queen (2005) 228 CLR 357 at [31]. Subject to limited statutory exceptions, s 16A of the Crimes Act (Cth) requires an “ instinctive synthesis ” of the relevant considerations:…
Cheung v The Queen [2001] HCA 67
Citation 22 (Para 8)

…In Cheung v The Queen (2001) 209 CLR 1 the High Court (the joint judgement at [14]; Callinan J at [169]) cited the decision of R v Isaacs (1997) 41 NSWLR 374 with approval on the question of fact finding following a jury verdict. The joint judgement summarised the law at [14]:…
Savvas v R [1995] HCA 29
Citation 23 (Para 7)

…resolution by me is limited to matters collateral to the elements of the offence for which the offender has been found guilty. In Savvas v The Queen (1995) 183 CLR 1 at 8, Deane, Dawson, Toohey, Gaudron and McHugh JJ referred to the “ principle that a sentencing judge may form his or her own view of the facts, so…

Legislation Cited

Crimes Act 1914 (Cth)
2 mentions (from Para 5)
Criminal Code Act 1995 (Cth)
1 mention (from Para 93)

Medium Neutral Citation:	R v Bredal [2023] NSWDC 656
Hearing dates:	22 August 2023
Date of orders:	17 November 2023
Decision date:	17 November 2023
Jurisdiction:	Criminal
Before:	Allen DCJ
Decision:	See paragraph [110]-[111]
Catchwords:	CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity. SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law.
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	Savvas v The Queen (1995) 183 CLR 1 Cheung v The Queen (2001) 209 CLR 1 R v Isaacs (1997) 41 NSWLR 374 Tarrant v R [2018] NSWCCA 21 Markarian v The Queen (2005) 228 CLR 357 R v Nahlous [2013] NSWCCA 90 Tector v R [2008] NSWCCA 151 Adamson v The Queen [2015] VSCA 194 Western Australia v Collier [2007] WASCA 250 Rampley v R [2010] NSWCCA 293 Meadows v R [2017] VSCA 290 Asplund v The Queen [2010] NSWCCA 316 Rajasekar v R [2017] NSWCCA 113 DPP (Cth) v FM [2013] VSCA 129 R v Togias (2001) 127 A Crim R 23 Totaan v R [2022] NSWCCA 75 R v Pham (2015) 256 CLR 550 R v Tootell ex parte AG [2012] QCA 273 R v GAW [2015] QCA 166 R v Quick; ex parte AG (Qld) [2006] QCA 477 R v Pederson [2021] NSWDC 535 R v Dregmans [2022] NSWDC 55 R v Jones [2022] SASCA 105 R v Gajjar [2008] VSCA 268 Dark v The Queen [2022] NSWCCA 52
Category:	Principal judgment
Parties:	Rex (Crown) Daniel Bredal (Offender)
Representation:	Counsel: Ms L.C Hutchinson for the Offender M O’Sullivan for the Crown Solicitors: Commonwealth Director of Public Prosecutions (Crown) Benjamin Leonardo - The Defenders (Offender)
File Number(s):	2021/00355781
Publication restriction:	Pursuant to ss 11 and 12 of the Act, Order 2 is to apply throughout the Commonwealth of Australia and for a period of five years from the date of this order.