R v Bredal

[2024] NSWCCA 75

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Bredal [2024] NSWCCA 75

Hearing dates:

25 March 2024

Date of orders:

15 May 2024

Decision date:

15 May 2024

Before:

Harrison CJ at CL at [1]
Button J at [5]
Dhanji J at [6]

Decision:

Appeal dismissed.

Catchwords:

CRIME – Appeals – Appeal against sentence - By Crown against inadequacy – child sex offence – using a carriage service to “groom” a person under 16 years of age – whether wrong sentence was imposed – where s 20(1)(b)(iii) of the Crimes Act 1914 (Cth) is invoked – meaning of “exceptional circumstances” – in what circumstances does the “exceptional circumstances” test apply – whether sentencing judge erred in finding there were exceptional circumstances – whether the respondent voluntarily withdrew from the offending – whether the respondent’s conduct amounted to cooperation such that a five percent discount was warranted –respondent is of prior good character – respondent maintained a plea of not guilty and failed to show contrition or remorse – suspended sentence remains a sentence of imprisonment – where the Director sought leave to withdraw submission – leave not granted – appeal dismissed

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes Legislation Amendment (Sexual Crimes Against Children and Community ProtectionMeasures) Act 2020 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Code (Cth)

Judiciary Act 1903 (Cth)

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)

Penalties and Sentences Act 1992 (Qld)

Cases Cited:

Adamson v The Queen (2015) VR 194; 252 A Crim R 368

Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6

Carroll v The Queen (2009) 83 ALJR 579; [2009] HCA 13

CSR Ltd Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64

Danishyar v R; R v Danishyar [2023] NSWCCA 300

Dinsdale v The Queen (2000) 202 CLR 32; [2000] HCA 54

Director of PublicProsecutions(Cth) v El Karhani (1990) 21 NSWLR 370; 51 A Crim R 123

Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28

Elliot v Harris [1976] 13 SASR 516

Elomarv R [2018] NSWCCA 224

Galli v NSW State Parole Authority [2006] NSWSC 206

GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32

Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39

House v The King (1936) 55 CLR 499

Hurt v The King (2024) 98 ALJR 485; [2024] HCA 8

Kennedy v R [2020] NSWCCA 49

Koschier v R [2024] NSWCCA 24

Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92

Markovic v R (2010) 30 VR 589; 200 A Crim R 510

Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32

Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284

R v Baker [2017] NSWCCA 233

R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep)

R v Foster (2001) 33 MVR 565; [2001] NSWCCA 215

R v Jones [2022] SASCA 105

R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v Kelly (Edward) [1999] 2 All ER 13

R v Lopez [1999] NSWCCA 245

R v Nahlous [2013] NSWCCA 90; 228 A Crim R 503

R v Panuccio (Court of Appeal (Vic), 4 May 1998, unrep)

R v Paull (1990) 20 NSWLR 427; 49 A Crim R 142

R v Pickett [2010] NSWCCA 273

R v Sara [2020] NSWCCA 119

R v Tootell; Ex parte Attorney-General of Queensland [2012] QCA 273

R v Zamagias [2002] NSWCCA 17

Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21

Sigalla v R [2021] NSWCCA 22

Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74

The Queen v Bauer (2018) 265 CLR 56; [2018] HCA 40

The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75

Zuffo v R [2017] NSWCCA 187

Category:

Principal judgment

Parties:

Rex (Appellant)
Daniel Christian Bredal (Respondent)

Representation:

Counsel:
R Sharpe KC with A Chhabra (Appellant)
R Pontello SC with L Hutchinson (Respondent)

Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Benjamin Leonardo Lawyers (Respondent)

File Number(s):

2021/355781

Publication restriction:

Court Suppression and Non-Publication Orders made on 16 May 2023 at Penrith District Court

 Decision under appeal 

Court or tribunal:

Penrith District Court

Jurisdiction:

Criminal

Date of Decision:

17 November 2023

Before:

Allen DCJ

File Number(s):

2021/355781

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Commonwealth Director of Public Prosecutions (“the Director”), pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), appealed against the asserted inadequacy of the sentence imposed on the respondent, Daniel Christian Bredal. Mr Bredal was found guilty by a jury of a single offence of using a carriage service to “groom” a person under 16 years of age, contrary to s 474.27(1) of the Criminal Code (Cth). The charge was that Mr Bredal, between 26 November 2021 and about 14 December 2021 at Lawson and elsewhere in New South Wales, being 45 years of age, did use a carriage service to transmit communications to another person, 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. The recipient of Mr Bredal’s communications was a fictious assumed online identity (‘AOI’) operated by police.

On 17 November 2023, his Honour Judge Allen (the sentencing judge) sentenced Mr Bredal to a term of imprisonment of 1 year and 7 months. His Honour ordered, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that Mr Bredal be released immediately on entering a recognisance, for a period of 3 years, requiring that he, for a period of 2 years, comply with conditions including supervision by a probation officer, participation in rehabilitation programmes as directed, and be subject to a restriction on travelling outside the State.

On the appeal, the Director did not take issue with the length of Mr Bredal’s sentence. The complaint was as to its immediate suspension which the Director contended was inconsistent with s 20(1)(b)(iii) of the Crimes Act. Section 20(1)(b)(iii) requires the Court to be satisfied there are “exceptional circumstances” before suspending the entirety of a term of imprisonment for a Commonwealth child sex offence.

The principal issues on appeal were:

1. Whether the sentencing judge erred in finding there were exceptional circumstances within the meaning of s 20(1)(b)(iii) of the Crimes Act.

2. Whether the sentencing judge erred in finding that Mr Bredal voluntarily withdrew from the offending (a matter factually relevant to issue (1)).

3. Whether the sentence imposed on Mr Bredal was manifestly inadequate.

4. The proper approach to the Director’s post-hearing email to the Court seeking leave to withdraw a submission as to the appropriate test on appeal in relation to issue (1).

The Court held (per Dhanji J, Harrison CJ at CL and Button J agreeing), dismissing the appeal:

As to issue (1), per Dhanji J (Harrison CJ at CL and Button J agreeing):

1. At [103]: The sentencing judge was correct to find that the circumstances were exceptional. The flaw in the appellant’s argument was that the sentencing judge did not find any of the matters referred to, on its own, was exceptional. It was the combination of those matters that led to the finding. All were relevant and available matters to take into account in this regard. [Nature of the ‘exceptional circumstances’ test considered]

   Griffiths v The Queen (1989) 167 CLR 372, applied

   R v Tootell; Ex parte Attorney-General of Queensland [2012] QCA 273. applied

   R v Kelly (Edward) [1999] 2 All ER 13, considered

As to issue (2), per Dhanji J (Harrison CJ at CL and Button J agreeing):

1. At [79]-[81]: The timing of the applicant’s arrest was such that it could not be conclusively determined that he would not have continued in his offending conduct. That did, however, not preclude a finding on the balance of probabilities, that the respondent withdrew from the offence prior to his arrest. Such a finding was open to the sentencing judge on the evidence.

As to issue (3), per Dhanji J (Harrison CJ at CL and Button J agreeing):

1. At [111] – [119]: It was open to the sentencing judge to find the case was sufficiently exceptional so as to warrant the complete suspension of the sentence of imprisonment, having regard to all the circumstances of the case. A number of factors were of particular significance. Firstly, the respondent’s withdrawal from continued offending was significant and entitled to weight. It was, at least, an unusual circumstance and relevant to a finding of exceptional circumstances. Secondly, there was no evidence to suggest that Mr Bredal was actively looking to engage with a child. Further, and contrary to a submission made by the Director, it was not irrelevant that the communications were with an AOI and not a real child. The respondent’s personal circumstances, including his role in caring for three children with special needs was both unusual and significant. Finally, it was not to be forgotten that a suspended sentence remains a sentence of imprisonment. As such, the appeal ground as to manifest inadequacy was not made out.

   The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39, considered

   Dinsdale v The Queen (2000) 202 CLR 32; [2000] HCA 54, considered

   Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, applied

As to issue (4), per Dhanji J (Harrison CJ at CL and Button J agreeing):

1. At [121] – [122]: Leave to reopen was refused. The matter was heard and judgment reserved. In so far as the rules of natural justice demand that a party be given an opportunity to put their case, that opportunity is given at the hearing. The Director had argued its case on the basis that a House v King error was required. That was the case Mr Bredal responded to, with the assistance of senior and junior counsel, presumably at some expense. The prospect of further delay in the case was concerning. Further, in the event that leave were granted and Mr Bredal chose not to respond, the Court would be denied a contradictor. That would be an unsatisfactory context in which to decide an important issue. Finally, it was not self-evident that the Director’s revised position was correct. Sentencing is classically an area for discretionary judgment. Section 20(1)(b)(iii) explicitly refers to the Court being satisfied that the circumstances are exceptional. This, together with the deliberately non-prescriptive nature of the expression “exceptional circumstances”, suggests the test in s 20(1)(b)(iii) of the Crimes Act refers to the properly formed opinion of the sentencing judge or magistrate as part of the exercise of the sentencing discretion. In refusing leave to withdraw the submission, the Court would not be proceeding on an obviously incorrect basis.

   Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28, applied

   House v The King (1936) 55 CLR 499, considered

   CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64, applied

   Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92, applied

JUDGMENT

1. HARRISON CJ at CL: I have had the advantage or reading in draft the judgment of Dhanji J with which I agree. I wish only to add the following.

2. As his Honour Dhanji J has pointed out, the Director does not take issue with the length of Mr Bredal’s sentence. The proposition that the sentence is manifestly inadequate is therefore solely concerned with the manner in which the sentencing judge directed the sentence was to be served. The Director’s contention that the sentence is erroneous is accordingly, in the context of this appeal, coextensive with her contention that the sentencing judge erred in finding that there were exceptional circumstances within the meaning of s 20(1)(b)(iii) of the Crimes Act 1914 (Cth).

3. It was not in contest that Mr Bredal had no prior convictions. Not only was he a person of prior good character in that sense, he was also not found to have been in possession of illicit or illegal material in his home or on his electronic devices when his home was searched following his arrest. The offending behaviour occupied some parts of some days between 26 November 2021 and 15 December 2021, a relatively short period. That period came to an end when Mr Bredal withdrew from further contact or communications with the undercover operative. In that respect, I do not consider that his arrest as an intervening event precludes a finding that Mr Bredal voluntarily withdrew from the offending. Indeed, a submission to the contrary necessarily relies upon the assumption that it would otherwise have continued, an assumption for which there is no particular support. Moreover, the apologetic terms in which the correspondence ended suggests quite the contrary, as Dhanji J has emphasised. Finally, Mr Bredal’s personal circumstances, with responsibilities for special needs children, is also significant.

4. Having regard to the collocation of these several factors, I do not consider that the sentencing judge erred in concluding that there were exceptional circumstances within the meaning of the provision being considered.

5. BUTTON J: I agree with Dhanji J, and with the further remarks of the Chief Judge.

6. DHANJI J: This is an appeal brought by the Commonwealth Director of Public Prosecutions (“the Director”) pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), against the sentence imposed on Daniel Christian Bredal by his Honour Judge Allen (the sentencing judge) in the District Court of New South Wales at Penrith on 17 November 2023.

7. There is no issue that the references to the “Director” and ‘the Crown” in s 5D of the Criminal Appeal Act are picked up by s 68 of the Judiciary Act 1903 (Cth) so as to provide the Commonwealth Director a right to appeal to this Court against Mr Bredal’s sentence.

8. Mr Bredal was found guilty by a jury of a single offence of using a carriage service to “groom” a person under 16 years of age, contrary to s 474.27(1) of the Criminal Code (Cth). The maximum penalty for this offence is imprisonment for 15 years.

9. The charge on the indictment alleged that Mr Bredal, between 26 November 2021 and about 14 December 2021 at Lawson and elsewhere in New South Wales, being 45 years of age, did use a carriage service to transmit communications to another person, 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.

10. On 17 November 2023, Allen DCJ sentenced Mr Bredal to a term of imprisonment of 1 year and 7 months. His Honour ordered, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), that Mr Bredal be released immediately on entering a recognisance, for a period of 3 years, requiring that he, for a period of 2 years, comply with conditions including supervision by a probation officer, participation in rehabilitation programmes as directed, and be subject to a restriction on travelling outside the State. A sentence of imprisonment which allows the release of a federal offender pursuant to s 20(1)(b) of the Crimes Act is generally described as a suspended sentence. That provision allows the partial or total suspension of a sentence.

11. The Director takes no issue with the length of Mr Bredal’s sentence. The complaint is as to its immediate suspension which the Director contends is inconsistent with s 20(1)(b)(iii) of the Crimes Act. Section 20(1)(b)(iii) requires the Court to be satisfied there are “exceptional circumstances” before imposing a wholly suspended sentence for a Commonwealth child sex offence. The definition of a “Commonwealth child sex offence” includes the present offence (see s 3 of the Crimes Act). Central to the appeal is, therefore, the sentencing judge’s finding that the matter was relevantly exceptional for the purposes of s 20(1)(b)(iii) of the Crimes Act and the consequent imposition of a sentence which did not involve any component of full-time custody.

12. The Director appeals against the sentence on the following four grounds:

1. The sentencing judge erred in finding there were exceptional circumstances within the meaning of s 20(1)(b)(iii) of the Crimes Act, by:

1. taking into account an irrelevant consideration, namely that [Mr Bredal] did not have any prior convictions;

2. taking into account an irrelevant consideration, namely the erroneous finding that [Mr Bredal] voluntarily withdrew from the offending;

3. failing to take into account a relevant consideration, namely that [Mr Bredal] pleaded not guilty and has shown no contrition or remorse; and

4. finding that the circumstances were exceptional.

2. The sentencing judge erred in finding that [Mr Bredal] voluntarily withdrew from the offending.

3. The sentencing judge erred in finding [Mr Bredal’s] conduct amounted to co-operation such that a five percent discount was warranted.

4. The order that [Mr Bredal] be released forthwith resulted in a sentence that is manifestly inadequate, in particular because:

1. the sentence does not adequately reflect the serious nature of the offence as reflected in the maximum penalty;

2. the sentence does not adequately reflect the circumstances of the offending, including because there was an erroneous finding that [Mr Bredal] voluntarily withdrew from the offending;

3. the sentence does not adequately reflect the principles of general deterrence, specific deterrence, punishment and denunciation;

4. undue weight was placed on factors subjective to the offender; and

5. there was an erroneous finding that exceptional circumstances were made out.

Factual Background

The Crown Case at trial

13. It was not disputed at trial that Mr Bredal had engaged in a series of online chat exchanges with a fictitious assumed online identity (“the AOI”) operated by police. These exchanges were set out in Annexure A to the Crown submissions on appeal. I do not consider it necessary to set out in full the content of Mr Bredal’s messages and prefer not to do so given the explicit nature of them, or at least many of them, and the fact that this judgment will be published on the internet. A brief summary of the online chat exchanges is set out below.

14. On 26 November 2021, the AOI commenced a conversation with Mr Bredal on Chatiw, an adult chat website. [1] Early in this initial exchange, the AOI told Mr Bredal that she was [REDACTED] years old. Despite this, Mr Bredal continued the conversation, eliciting information from the AOI. Mr Bredal told the AOI he was 35 years old (though he was, in fact, 45 years old). This was consistent with Mr Bredal’s profile on the chat website which referred to him being 35. The AOI told Mr Bredal she was at school. In response to his question, she told him her location in Sydney. Some of Mr Bredal’s communications were sexually suggestive.

    1. Ex A, Tab 1 (AB Vol 2, pp 6-9).

15. The AOI suggested they move from the Chatiw platform in response to which Mr Bredal sent a chat invitation on Skype indicating he had to go to the shops but could chat later. [2] The AOI said she could chat later “if mum is not around”. Mr Bredal sought to initiate further conversation at 7:33 pm without response.

    2. Ex A, Tab 2 (AB Vol 2, p 10).

16. The next day, 27 November 2021 (a Saturday) at 9:56am, Mr Bredal sent a salutation to which he received no response. [3]

    3. Ex A, Tab 4 (AB Vol 2, p 12).

17. On 7 December 2021, the AOI initiated contact with Mr Bredal on Skype, starting from 2:53 pm in the afternoon.⁷ [4] There was a discussion about school and Mr Bredal asked what the AOI was wearing. Mr Bredal asked the AOI what she wanted to talk about to which she replied “whatever u want”. Mr Bredal essentially sounded her out in relation to talking about sex. Mr Bredal purported to take care that AOI was comfortable while steering the conversation towards sex. At Mr Bredal’s request, he and the AOI switched to a “private chat”. The chat became more explicit, escalating from what they each looked like, to Mr Bredal asking what the AOI was wearing followed by a description of him masturbating her.

    4. Ex A, Tab 3 (AB Vol 2, pp 13-31).

13. On 8 December 2021, there was a further exchange between Mr Bredal and the AOI. [5] Mr Bredal asked the AOI to describe her physical characteristics and told the AOI he thought she “would be sexy… especially in the shower” saying he would like to see her there. Mr Bredal asked the AOI, “[s]o did you try what we spoke about yesterday?”, a reference to the earlier discussion of masturbation. Mr Bredal introduced the prospect of meeting the AOI in person by stating that he wished he could show her how to masturbate. The AOI asked Mr Bredal, “like do u rlly [sic] mean when you say you want to meet me or are u just teasing”, to which Mr Bredal replied, “I’d like to”. Mr Bredal asked the AOI if she would like a picture of him which, following her affirmative response, he then sent. This, unsurprisingly, led to the AOI offering to send a picture of herself. Mr Bredal purported to ensure she was comfortable sending it. When it was received he responded in very flattering terms.

    5. Ex A, Tab 6 (AB Vol 2, pp 22-28).

14. On 9 December 2021 (a Thursday) at 5:01pm, the AOI recommenced the conversation by sending a greeting to Mr Bredal. During this conversation: [6]

1. The AOI asked, “did u rlly [sic] mean it when u said u wanted to meet up”. Following a further exchange, the Mr Bredal said, “I do” and continued, “[b]ut I’m worried you’d think I’m creepy”.

2. The AOI told Mr Bredal her mum would be away “till [sic] late on wed[nesday] next week”. To this, the Mr Bredal replied, “Oh? … [w]hat do you mean by late?”. The AOI said, “[she’s] on double shift on wed[nesday]”. The respondent replied, “[a]nd I’ll actually be closer on Wednesday… Parramatta” and said, “[w]e need to talk more about this though!!” He continued by stating, “I like the idea.”

   6. AB, Vol 2 pp 32-33.

20. On 12 December 2021 (a Sunday), at 1:16pm, the AOI resumed the conversation with the respondent by sending a greeting. [7] During this exchange, they continued their conversation from 9 December 2021 about meeting on the following Wednesday. The parties discussed how far the AOI was from Parramatta, and what they would do upon meeting. The AOI confirmed she would be home alone. Mr Bredal offered to send a message to the AOI when he was on his way to her house. There was further sexually suggestive chat during this exchange. Mr Bredal, as he had through all the exchanges to this point, continued to express a concern to ensure the AOI was comfortable while encouraging the suggestion of romantic interest and directing the conversation to grossly inappropriate topics.

    7. AB, Vol 2 pp 34-38.

21. The last two conversations between Mr Bredal and the AOI occurred on 13 and 14 December 2021. Their content was such that they were not suggested to be part of the offending behaviour. They are relatively short and are set out in full below given their importance to ground 2. (Note the username adopted by Mr Bredal has been included, however the username adopted by the AOI has been modified.)

“Skype chat 13 December 2021:

AOI 8:29PM

hi

Hey r u there?

Dan 8:30PM

Hey sorry. Just finished work

Wednesday meetings have been cancelled ☹

AOI 8:54PM

Oh wow u work late lol

Dan 8:54PM

Sometimes

AOI 8:55PM

So are u still coming to mine on wed?

Dan 9:15PM

I can’t because the meetings are cancelled so I’m not going to be at Parramatta…

AOI 9:36PM

Omg!!!! Really ☹

Dan 9:36PM

Yeah. Because I work at home [rolling eyes emoji]

Skype chat 14 December 2021:

AOI 6:23AM

soz I couldn’t keep chat last night mum told me to go to bed

I’m just confused, how cum u can’t just come over if u work from home?

Have I done something wrong ☹

Dan 7:29AM

No! Not at all

Because I live in the mountains, it’s a long trip when I am supposed to be working

AOI 7:52AM

Oh ok ☹

I’ll chat to u after school I guess

Dan 7:53AM

I’m sorry ☹”

The Defence Case at trial

22. Mr Bredal’s defence at trial was that he believed he was engaged in a role-play, or fantasy, exchange with the recipient of his communications. He thus denied any intention to make it easier to procure a person under the age of 16 to engage in sexual activity with him.

23. On 15 December 2021 (Wednesday), police attended the respondent’s residence where they executed a search warrant. Whilst police were in attendance, the respondent admitted to having a conversation with a person he had met online who he thought was pretending to be someone younger than they were. He said once he figured out that this was not the case, he “backed off” and “declined” to meet with the other person. After his arrest, Mr Bredal participated in an electronically recorded interview with police, during which he maintained this explanation.

24. By its guilty verdict, the jury rejected this defence.

Proceedings on Sentence

25. Sentencing proceedings were conducted on 22 August 2023.

26. The Crown relied on the evidence led at trial. Additionally, the Crown tendered a sentence summary document, a criminal history showing that the respondent had no prior convictions, written submissions and a schedule of relevant cases. The Crown also tendered a sentencing assessment report dated 2 August 2023, authored by Anna Johansson, Community Corrections Officer of Penrith Community Corrections Office and a pre-sentence consultation report authored by Xiang Yan Hong, Senior Psychologist of Penrith Community Corrections Corrective Services.

27. Mr Bredal read his own affidavit dated 22 August 2023. That affidavit provided evidence of the offender’s background and his then current circumstances and, additionally, explained the circumstances leading to two breaches of his bail conditions. The offending itself was not addressed. Written and oral submissions were made by his counsel.

28. The sentencing judge reserved his decision. On 17 November 2023, his Honour sentenced Mr Bredal, providing comprehensive reasons for his determination.

Principles to be applied on a Crown appeal

29. The Director relied on the following statement of McNaughton J in Danishyar v R; R v Danishyar [2023] NSWCCA 300 at [113]:

“Crown appeals against sentence are brought for the primary purpose of laying down principles for the governance and guidance of courts having the duty of sentencing convicted persons. The Crown needs to show the sentencing judge has made an error of the kind identified in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 (“House”); see CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [54] (Kiefel, Bell and Keane JJ) (“CMB”). Even if error is established, the Court is required to consider whether the Crown’s appeal should nonetheless be dismissed in the exercise of its residual discretion (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [26] (“Green”); Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24] (“Bugmy”)). The Crown must “negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised” (CMB at [34] (French CJ and Gageler J) and at [56] (Kiefel, Bell and Keane JJ), quoting R v Hernando [2002] NSWCCA 489 at [12]; (2002) 136 A Crim R 451.”

30. In that case I stated (at [67]) as follows:

“… To the extent that her Honour’s recitation of the principles suggests that it is not necessary for the Crown to establish manifest inadequacy, on what has generally been described as an “inadequacy appeal”, this is contrary to the conclusion of N Adams J in Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [246] (and see also Hoeben CJ at CL at [159], and Button J at [161]). No argument was raised in this case to the effect that the Crown was not required to establish manifest inadequacy. I would require full argument on the subject before accepting that a Crown appeal against sentence could be upheld in the absence of a finding of manifest inadequacy.”

31. I remain of that view. That is not to deny that the articulation of specific grounds of error is of importance in a Crown appeal. That is, it remains necessary for the Crown to articulate any specific errors of law on which it relies and for the Court to determine those complaints: Carroll v The Queen (2009) 83 ALJR 579; [2009] HCA 13 at [8]; R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [34]; R v Baker [2017] NSWCCA 233. This is because the identification of specific error may be instructive as to how the sentencing judge came to impose a sentence which falls outside the available range. Of course, it may be that a sentence is manifestly outside the available range despite the absence of any error. Conversely, it is possible that, despite the presence of error, a sentence is nonetheless not manifestly adequate. In the latter case, even if the Court’s power to intervene is enlivened, it is difficult to envisage circumstances where the Court would exercise the discretion to do so.

The meaning of exceptional circumstances in s 20(1)(b)(iii) of the Crimes Act 1914 (Cth)

32. Before commencing any consideration of the specific complaints made by the Director, it is helpful to have some understanding of what is meant by the expression “exceptional circumstances” in s 20(1)(b)(iii) of the Crimes Act. Section 20(1)(b) was amended to its current form, with bespoke requirements for Commonwealth child sex offences, including the exceptional circumstances test, by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) (“the amending Act”) (see cl 1 of Schedule 11). The new form of the section commenced operation on 23 June 2020 with application to offences committed on or after that date. The amending Act introduced a range of measures in relation to sentencing for Commonwealth child sex offences.

An overview of Part 1B of the Crimes Act and the impact of the amending Act

33. Section 20 is within Part 1B of the Crimes Act which deals with the “Sentencing, imprisonment and release of federal offenders”. In R v Paull (1990) 20 NSWLR 427, Hunt J (as his Honour then was) lamented, at 437:

“… I express my gratitude to both counsel for the assistance which they have provided me in coming to terms with Pt 1B of the Crimes Act (Cth). It is to be hoped that the Federal Parliament will quickly come to realise the difficulties caused by this unnecessarily complicated and opaque legislation and that it will give urgent reconsideration to its provisions.”

34. That comment was made over 30 years ago. Federal Parliament did not quickly come to realise the difficulties. The present state of the sentencing provisions is fairly described as substantially worse.

35. I am not so bold as to attempt a complete explanation of Part 1B of the Crimes Act. Some general observations with respect to Part 1B, and in particular the changes to the Part brought about the amending Act, however, are helpful in providing some context. Part 1B does not provide a code. Important common law principles continue to apply. Some State sentencing provisions are picked up (see for example ss 16E and s 20AB). The overriding principle, embodying the fundamental common law principal of proportionality, is expressed in s 16A(1):

Matters to which court to have regard when passing sentence etc.—federal offences

(1)    In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.

36. Section 16A(2) provides a (non-exhaustive) list of matters that “must” be taken into account. Section 16A(3) adds to those matters by requiring a court to “have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the offender, under that sentence or order”. Common law considerations remain relevant: Director of PublicProsecutions (Cth) v El Karhani (1990) 21 NSWLR 370.

37. Section 16A(2AAA) was introduced by the amending Act. It provides:

Matters to which court to have regard when passing sentence etc.—federal offences

…

(2AAA)    In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:

(a)    when making an order—to impose any conditions about rehabilitation or treatment options;

(b)    in determining the length of any sentence or non‑parole period—to include sufficient time for the person to undertake a rehabilitation program.

38. Somewhat unhelpfully, a further provision relating to sentencing for offences within Subdivision F of Division 474 of Part 10.6 of the Criminal Code (which includes s 474.27), is contained in that subdivision of the Criminal Code rather than with the other relevant sentencing provisions in Part 1B of the Crimes Act. Section 474.29AA of the Criminal Code, also introduced by the amending Act, provides:

474.29AA  Sentencing

(1)    In determining the sentence to be passed, or the order to be made, in respect of a person for an offence against this Subdivision, the court must take into account the following matters:

(a)    the age and maturity of the person in relation to whom the offence was committed;

(b)    if that person was under 10 when the offence was committed—that fact as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates;

(c)    the number of people involved in the commission of the offence.

(2)    However, the court need only take into account a matter mentioned in subsection (1) so far as the matter is known to the court and, for a matter mentioned in paragraph (1)(a) or (c), relevant.

(3) The matters mentioned in subsection (1) are in addition to any other matters the court must take into account (for example, the matters mentioned in section 16A of the Crimes Act 1914).

39. It is not immediately clear what this provision adds to pre-existing sentencing principles, other than, perhaps, putting some stress on the age of 10 as a point of demarcation between young and very young victims. The provision does not appear to have any particular significance to the present case. While there may be a question as to whether the AOI was a “person in relation to whom the offence was committed”, there is no doubt that the sentencing judge was required to have regard to the apparent age and maturity of the fictitious person Mr Bredal believed he was communicating with.

40. Returning to the Crimes Act, Division 3 of Part 1B deals with “Sentences of imprisonment”. Section 17A(1) provides that:

Restriction on imposing sentences

(1)   A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

41. Section 19 imposes requirements in relation to the commencement date of a federal sentence where the person is subject to a pre-existing State, Territory or federal sentence. The amending Act inserted s 19(5) – (7). The effect of these subsections is to require a court imposing a sentence for a Commonwealth child sex offence on a person subject to an uncompleted sentence for a child sex offence or a State or Territory registrable child sex offence, to make the sentence cumulative on the earlier sentence, unless satisfied that not doing so “would still result in sentences that are of a severity appropriate in all the circumstances” (s 19(6)) in which case reasons must be provided for doing so (s 19(7)). Again, it is unclear what these additional provisions add to pre-existing sentencing considerations and obligations.

42. Division 4 of Part 1B deals with “[t]he fixing of non-parole periods and the making of recognizance release orders”. In short, a sentencing court imposing a federal sentence or sentences which require the offender to serve a sentence, the aggregate of which exceeds 3 years, (either as a result of the sentences being imposed, or their aggregation with a sentence in relation to which the offender is already in prison, and with respect to which the person is not already subject to a non-parole period or a recognizance release order), or a federal life sentence, is to fix a single non-parole period with respect to those sentences: s 19AB(1) and (2). This is subject to s 19AB(3) which provides a power to refuse to set a non-parole period in particular circumstances, resulting in what, under New South Wales legislation, would be called a ‘fixed term’.

43. Where the further sentence is imposed while the offender is in prison serving an existing non-parole period in respect of a federal sentence, the Court is required, depending on the circumstances, to either confirm the existing non-parole period, fix a new non-parole period or decline to fix a non-parole period: s 19AD. An analogue provision applies where the person is in prison serving a pre-release period with respect to a partially suspended sentence: s 19AE.

44. Where the sentence, or aggregate sentence does not exceed 3 years, the Court is to fix a recognizance release order: s 19AC(1) and (2). Exceptions are provided for sentences that do not exceed 6 months (s 19AC(3)) or, where there are specified circumstances warranting such a result (s 19AC(4)).

45. The above provisions are subject to s 19AG which provides that for certain offences described as a “minimum non-parole offence” not only is a non-parole period to be set, that non-parole period is to be set at three-quarters of the sentence: s 19AG. Some leeway is allowed in fixing a non-parole period that is less than three-quarters of the sentence in the case of children (persons under 18 years) where “exceptional circumstances exist to justify fixing a shorter” non-parole period: s 19AG(4A). This provision thus, like s 20(1)(b)(iii), employs an “exceptional circumstances” test. Unlike s 20(1)(b)(iii), s 19AG(4A) adds the words “exist to justify” the otherwise proscribed outcome, and, additionally s 19AG(4B) requires the court to have regard to particular factors, one as “the paramount consideration” and the second as “a primary consideration”.

46. Division 5 of Part 1B is titled “Conditional release on parole or licence”. Despite this title this Division deals with a range of matters as set out in its four sub-divisions:

Subdivision A – Release on parole or licence

Subdivision B – Revocation of parole order or licence

Subdivision C – State and Territory laws providing for leave of absence, pre release etc.

Subdivision D – Discharge without conviction, conditional release and sentencing alternatives

Of present relevance is the last of these, subdivision D. That subdivision provides a number of sentencing options. Section 19B allows a court to decline to record a conviction despite a finding of guilt, either by dismissing the charge or by discharging the person on recognizance. Section 20 provides for the conditional release of offenders after conviction, to which I will return. Section 20AB picks up various State sentencing alternatives, including community corrections orders and intensive corrections orders.

47. Section 20(1)(a) allows a court, without passing sentence, to release an offender on a recognizance. This provision is essentially the equivalent of a good behaviour bond. A step up from an order under s 20(1)(a) is an order under s 20(1)(b) which provides for either wholly or partially suspended sentences. As noted above, Mr Bredal received a wholly suspended sentence under to s 20(1)(b).

48. In addition to amending s 20 to replace s 20(1)(b), the amending Act inserted s 20(1B) which requires a court to impose probation supervision and a restriction on travel during a period specified in the order imposing the recognizance release order.

47. Section 19AF requires a court, in the case of a recognizance release order, to commence the recognizance prior to the end of the sentence. That is, for example, a person could not be subject to a sentence of imprisonment for 6 months to be released on a recognizance after serving 7 months.

48. The amending Act also increased various maximum penalties across a range of child sex offences (by Schedule 5) and introduced mandatory minimum sentences applicable in some circumstances (by Schedule 6). The mandatory minimum sentences, where they apply, operate as “yardsticks” in the determination of the length of the sentence: Hurt v The King (2024) 98 ALJR 485; [2024] HCA 8, in which the amending Act was also considered more generally.

49. Amongst those increased penalties was an increase in the maximum penalty for an offence against s 474.27(1) from imprisonment for 12 years to imprisonment for 15 years. Section 16AAA sets out various mandatory minimum terms for a number of child sex offences, but not including s 474.27(1). Section 16AAB sets mandatory minimum terms for various Commonwealth child sex offences, where the person has previously been convicted of a “child sexual abuse offence”. Section 474.27 is included in s 16AAB, providing a mandatory minimum sentence of imprisonment for 4 years for an offence against that section in the prescribed circumstances. The mandatory minimum periods do not apply to offenders who were under the age of 18 at the time of the offence: s 16AAC(1). The mandatory minimum may otherwise be reduced but only by prescribed amounts (of up to 25 percent each), referable to discounts for a plea of guilty or co-operation with the authorities: s 16AAC(2).

50. The amending Act supplemented the increased penalties with changes with respect to supervision and rehabilitation: see s 20(1B) and s 16A(2AAA) each of which have been referred to above.

51. Against this background it is convenient to more closely consider s 20(1)(b).

Section 20(1)(b) of the Crimes Act

54. Section 20(1)(b) provides:

Conditional release of offenders after conviction

(1)    Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:

…

(b)    sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):

(i)    if none of the offences is a Commonwealth child sex offence--either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or

(ii)    if at least one of the offences is a Commonwealth child sex offence and the court is not satisfied that there are exceptional circumstances--after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or

(iii)    if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances--immediately.

In what circumstances does the “exceptional circumstances” test apply?

55. The first observation that should be made is that the provision provides a restriction when sentencing for a “Commonwealth child sex offence”. That expression is, as observed above, defined in s 3 of the Crimes Act (and relevantly for present purposes includes offences within subdivision F of Division 474 of the Criminal Code, which in turn includes s 474.27 of the Criminal Code). Section 20(1)(b)(iii) does not provide a general restriction on the imposition of non-custodial sentences for such offences. It has no application to the making of orders under s 19B, s 20(1) of the Crimes Act or a community corrections order pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”), as picked up by s 20AB. Nor does s 20(1)(b)(iii) apply to a sentence of imprisonment to be served by an intensive corrections order (“ICO”) pursuant to s 7 of the CSPA, as picked up by s 20AB. (Separately s 67 of the CSPA provides that an ICO is not available for various offences, including a number of offences against the Criminal Code, among which is listed an offence against s 474.27(1), “being an offence the victim of which was a person under the age of 16”. It is not immediately apparent that this provision would exclude the imposition of an ICO in the case of Mr Bredal, there being no actual victim, or at least one under 16 years of age, the charge establishing only that he, subjectively, believed the “person” to be under 16 years of age.)

56. It can be seen from the above that 20(1)(b)(iii) applies only in the limited situation where a sentence of imprisonment not exceeding three years (having regard to Division 4) is imposed, and a determination is required as to whether a recognizance release order is to be made and when it should take effect. Of course, s 19B, s 20(1)(a), and any other available sentencing option, such as, (if not excluded), an ICO under State law, is subject to the overriding prescription in s 16A(1) of the Crimes Act requiring the Court to “impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”.

57. The result is that, in sentencing for a Commonwealth child sex offence, when the s 17A threshold is crossed and a sentence of imprisonment is consequently to be imposed, and that sentence does not exceed 3 years, and the Court does not engage an alternative to full-time imprisonment such as an ICO, there is a legislative presumption that, at least, some part of that sentence should be served in actual custody. Part 1B of the Crimes Act must, of course, be read as a whole. While other sentencing options may not require passage through the restricted s 20(1)(b) aperture, the presence of s 20(1)(b) is not entirely irrelevant. The presence of that restriction says at least something as to the seriousness with which Commonwealth child sex offences are viewed. The point is similar to that made in Hurt v The King, per Gageler CJ and Jagot J, at [35], in the context of mandatory minimum sentences:

“That these provisions enable a court to impose less than the statutory minimum sentence in appropriate cases by an exercise of power under one or other of these provisions does not mean that the statutory minimum sentence is incapable of acting as a yardstick representing the Commonwealth Parliament’s view of the least worst possible case warranting imprisonment against which the case before the court at the time can be measured. In saying that ‘if the person is convicted of a current offence described in column 1 of an item in the following table, the court must impose for the current offence a sentence of imprisonment of at least the period specified in column 2 of that item’, s 16AAB(2) (and s 16AAA) presupposes both conviction and that the court has decided, first, to impose a sentence of imprisonment (thereby excluding s 19B and s 20(1)(a)), and, second, that the sentence of imprisonment is not to be subject to any direction under s 20(1)(b).”

The meaning of exceptional circumstances in s 20(1)(b)(iii)

58. Turning to the expression “exceptional circumstances” itself, the most obvious observation is that expression is not further defined. No particular considerations are mandated (in contrast to s 19AG(4B) referred to above). The legislature must be presumed to have been deliberately non-prescriptive, beyond the words themselves. The result is that it is left to the court to determine whether the circumstances of a particular case are, or are not, exceptional. That is, of course, not a license to ignore a statutory threshold for the imposition of a particular sentence.

59. The Director referred the Court to the second reading speech of the Attorney General for the Commonwealth with respect to the Bill, and to the explanatory memorandum. The amending Act and the purpose revealed by the extrinsic material were also discussed in Hurt v The King at [41]-[43]; [92]. Those materials essentially confirm what is obvious from the legislation itself. That is, the amendments, including to s 20(1)(b), were directed to the imposition of heavier sentences on child sex offenders. With respect to the term “exceptional circumstances” the explanatory memorandum stated:

“The term ‘exceptional circumstances’ under paragraph 20(1)(b)(ii) is deliberately not defined. Given the variable circumstances which may militate against or support a sentence of imprisonment, it would impose practical constraints if ‘exceptional circumstances’ was defined. Firstly, the phrase is not easily subject to general definition as circumstances may exist as a result of the interaction of a variety of factors which, of themselves, may not be special or exceptional, but taken cumulatively, may meet this threshold. Second, a list of factors said to constitute ‘exceptional circumstances’, even if stated in broad terms, will have the tendency to restrict, rather than expand, the factors which might satisfy the requirements for ‘exceptional circumstances’.”

60. The use of the expression, “exceptional circumstances”, including in the context of sentencing, is not new. The above explication is consistent with what would, in any event, be understood from the words themselves. In R v Tootell; Ex parte Attorney-General of Queensland [2012] QCA 273, the Queensland Court of Appeal (Holmes and Fraser JJA, Henry J) considered the expression in the context of s 9(5) of the Penalties and Sentences Act 1992 (Qld) which required that an offender serve an actual term of imprisonment for an “offence of a sexual nature committed in relation to a child under 16 years”, “unless there are exceptional circumstances”. The Court (at [18]) described as helpful the observations of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [1999] 2 All ER 13 at 20 where his Lordship, also in the context of sentencing legislation, said:

“We must construe ‘exceptional’ as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”

61. A combination of factors, each not in itself exceptional, may in combination demonstrate that the circumstances of the case are exceptional: Griffiths v The Queen (1989) 167 CLR 372 at 379; Tootell at [20]. Plainly, the requirement may result in a necessity to impose a sentence which would not have been imposed absent the requirement for exceptional circumstances. The factors that combine to make a particular case exceptional will all be factors relevant to the determination of sentence more generally. The purposes of sentencing will remain at the forefront. It is the impact of the particular factors on those purposes that will make the case either exceptional or unexceptional.

62. The exercise of the sentencing discretion referred to above, is, of course, in the context of Part 1B of the Crimes Act and relevant common law. That context includes the various changes brought by the amending Act discussed above, such as the increase in maximum penalties and, more generally, legislative intentions with respect to Commonwealth child sex offenders. That regime informs the sentencing process as part of the “other matters” the Court must take into account pursuant to s 16A(2) of the Crimes Act: see Hurt v The King at [32].

63. The changes brought about by the amending Act are both punitive and rehabilitative, both stemming from a concern to protect the community. The term “exceptional” used in its present context thus requires the circumstances to be sufficiently “exceptional” such that, despite a period of imprisonment being required, the offender should not be required to serve any part of that sentence in actual custody. While a finding in relation to exceptional circumstances is a step in the sentencing process (after determining the s 17A threshold has been crossed, and determining the length of the sentence), the instinctive synthesis remains engaged. As I have said, whether the threshold is reached is not considered in a vacuum, but rather having regard to all the circumstances of the case. It is “based on an assessment of all of the usual sentencing criteria”: R v Jones [2022] SASCA 105 at [45]. To take the obvious example, the greater the objective seriousness of an offence the more difficult it will be to establish the case is relevantly exceptional.

64. Finally, the decision as to whether the circumstances are sufficiently exceptional for the purposes of s 20(1)(b)(iii) of the Crimes Act so as to warrant the complete suspension of the sentence is not to be thought of as a decision between a sentence of imprisonment and no punishment at all. The option of no (curial) punishment at all has been provided by the legislature in s 19B of the Crimes Act. Section 20(1)(b) has been maintained by the legislature as a sentencing option in an appropriate case. As Bray CJ said in Elliot v Harris (No 2) [1976] 13 SASR 516 at 527, in an observation endorsed in, at least, R v Nahlous [2013] NSWCCA 90; 228 A Crim R 503 at [86]; R v Zamagias [2002] NSWCCA 17 at [31] and R v Foster (2001) 33 MVR 565; [2001] NSWCCA 215 at [36], "[s]o far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such as a sentence involved on the defendant’s record and his future…". Of course, a suspended sentence is significantly more lenient than one that is not suspended. But it involves real punishment nonetheless.

65. In the present case it was not suggested that the sentencing judge misdirected himself as to the test for exceptional circumstances. Rather, the complaint is that the circumstances upon which his Honour relied were not capable of constituting exceptional circumstances. It is necessary to consider the factors relied on by his Honour.

Ground 2 - the sentencing judge erred in finding the respondent voluntarily withdrew from the offending

66. As has been made clear, at the centre of this appeal is whether it was open for his Honour to find the case was relevantly exceptional for the purposes of s 20(1)(b)(iii) of the Crimes Act. This is the subject of ground 1. His Honour’s finding that the respondent voluntarily withdrew from the offending was a matter taken into account in determining that the case was relevantly exceptional. That factual finding is challenged by ground 2. If the Director is correct in this challenge, it feeds into ground 1 making it convenient to deal with this complaint first.

67. The Director accepted that the challenged finding is one of fact, found by his Honour to the benefit of Mr Bredal. It was not suggested that his Honour’s finding was constrained in any way by the verdict of the jury. The Director thus accepted that she assumed a burden to establish that it was not open to his Honour to make the finding on the balance of probabilities.

68. In the course of his reasons his Honour made a number of references to the submissions of the parties, including the respondent’s submission that, prior to the time of his arrest Mr Bredal had abandoned plans for a meeting with the AOI and had otherwise withdrawn from the offending. His Honour said:

“I am also mindful that throughout the various conversations the offender was not infrequently encouraged by the AOI to continue to participate in the conversation. Be that as it may, the AOI, on a number of occasions, disclosed in messages to the offender that she was [REDACTED] years old, living with her mother and attending school. It is also apparent that any intention to meet was an idea or loose plan or arrangement, at best, which was pursued more intently and repetitiously by the AOI in the conversations following 7 December 2021. I am satisfied there was no plan or detailed or concrete arrangement in place for such a meeting and by 13 December 2021 the offender had abandoned or withdrawn from ongoing contact with the AOI and the further pursuit or development of any such plan to meet.”

69. His Honour later, for the purposes of determining the objective gravity of the offending, relied on this finding, referring to the respondent “withdrawing from the conversation and any anticipated meeting by 13 December 2021”. It was thus clear that his Honour’s finding of withdrawal related both to any physical meeting and, additionally, ongoing sexual communications online.

70. His Honour acknowledged that sexual activity is not restricted to physical contact but rather, includes any activity “of a sexual or indecent nature”, which “accommodates indecent or suggestive ‘chat’ communications”, referring to Adamson v The Queen (2015) VR 194; 252 A Crim R 368 at [41]. His Honour’s factual finding was thus directed to Mr Bredal’s withdrawal, not just from a physical meeting but from the offending altogether.

71. It is necessary to consider the evidence relevant to his Honour’s finding.

72. In the first conversation on Chatiw on 26 November 2021, shortly after being told the AOI was [REDACTED] years old, Mr Bredal asked “her” where she was in Sydney. (It is not clear how he knew she was in Sydney.) The AOI nominated a suburb. One obvious potential purpose in asking this question was to gauge the prospects of a physical meeting. Mr Bredal interrupted the chat at 4:50pm and then sought to resume the conversation at approximately 7:30pm and again the next morning but did not receive a response from the AOI. There was then no contact until the AOI made contact on 7 December 2021. The conversation on that date was significantly more explicit but contains no reference to a meeting.

73. The AOI initiated contact the next day, 8 December 2021. On that day Mr Bredal suggested showering with the AOI and when asked why said, “to be close to you …” and “to see you”. He reiterated that he would “love to” see the AOI. The respondent reintroduced the topic of masturbation (having raised this on 7 December 2021) and said to the AOI “I wish I could show you”, and, “if I was there I could lol”. When asked by the AOI if he would really want to meet her, the respondent said “I’d like to”. Mr Bredal’s offer to send a photograph of himself was accepted by the AOI resulting in him sending a close up picture of his face. The AOI offered to send a picture in return which was also accepted. It is notable that Mr Bredal initiated the exchange of pictures. That he sent a genuine picture might be thought to have made the prospect of a meeting more likely. (Presumably, the photograph sent by the AOI was a photograph sourced by police of a girl who appeared to match the age and description that had been provided by the AOI). The exchange of photographs, in the context of a grooming offence, can also be considered a potential precursor to the exchange of more explicit images. The conversation ended when Mr Bredal indicated he needed to go out. While ending the immediate conversation he was active in encouraging the prospect of further conversation at a later time.

74. The AOI initiated contact the next day, 9 December 2021 (a Thursday). The AOI asked Mr Bredal if he was serious about meeting up and on receiving a positive response, she said her mother would be out until late on Wednesday the following week. Mr Bredal indicated that he would be closer on Wednesday as he would be in Parramatta, and that he “like[d] the idea [love heart emoji]” and they needed to talk more about it. It is clear the respondent was expressing enthusiasm for the prospect of meeting the AOI. Nonetheless, the respondent did not contact the AOI over the next days. The next contact was made by the AOI on Sunday, 12 December 2021. The AOI reintroduced the subject of “Wednesday” to which Mr Bredal replied “Mmhmm. What are your thoughts?” Despite this somewhat ambivalent first response the respondent quickly introduced the prospect of physical sexual activity and encouraged an arrangement to meet the AOI at her home for that purpose. The chat ended with Mr Bredal asking the AOI to message him the next day which ‘she’ agreed to do after school.

69. The next day, Monday 13 December 2021, the AOI messaged Mr Bredal at approximately 8:30pm. Mr Bredal, in his reply apologised, presumably for not being in contact earlier, saying he had just finished work. He then said, as part of this first response “Wednesday meetings have been cancelled [sad emoji]”. A short time later when asked if he was still coming to the AOI’s house on Wednesday he said “I can’t because the meetings are cancelled so I’m not going to be at Parramatta …”. This conversation can fairly be described as somewhat perfunctory. The next morning the AOI made contact. Mr Bredal reassured the AOI that she had done nothing wrong but explained that because he lived in the Blue Mountains it was a “long trip when I’m supposed to be working”. The AOI acknowledged this and said “I’ll chat to u after school I guess” to which the respondent replied “I’m sorry. [Sad emoji].” No further conversation took place.

70. Mr Bredal was arrested the following day.

71. Clearly, having regard to his arrest on 15 December 2021, the possibility that Mr Bredal might have, but for his arrest, continued to engage with the AOI beyond that time in contravention of s 474.27(1) of the Criminal Code cannot be excluded. That fact is, of course, not inconsistent with a finding on the balance of probabilities that the respondent did withdraw from both any physical meeting and ongoing communication in contravention of the provision.

72. There was evidence before his Honour that Mr Bredal did in fact have a meeting on Wednesday, 15 December and, significantly, that it had not been cancelled. On Mr Bredal’s arrest that day he asked police if he could telephone his boss as he was supposed to be in a meeting. In his record of interview conducted with police that day he confirmed that he was scheduled to attend a meeting in Parramatta which is why he had needed to speak to his boss earlier. He said that he had told the AOI that he had cancelled the meeting “even though I was going to be in Parramatta”.

73. Mr Bredal’s use of a ruse to cancel the meeting with the AOI is significant. It is also necessary to have regard to the fact that no attempt was made to reschedule such a meeting, or even suggest that a meeting could be arranged for another time. These matters in combination tend to suggest Mr Bredal had abandoned any desire to meet with the AOI. This conclusion is further supported by viewing the messages of 13 and 14 December in the context of the other messages.

74. The brief exchanges on 13 and 14 December 2021 can be contrasted with the respondent’s earlier engagement with the AOI. On 26 November, the respondent had attempted to continue the conversation without success. On 7 and 8 December, the chat ended with the respondent emphasising his interest in resuming the conversation later. On 9 December, the respondent ended the chat stating that he wanted to continue contact, including arranging a meeting. While he did not instigate the contact, when the AOI messaged him on 12 December he engaged in a similar way and ended the chat by inviting the AOI to contact him the next day. Thus, each of the earlier conversations ended with a clear indication that ongoing contact was sought. Both the content and the tone of the exchanges on 13 December and 14 December were significantly different. The Director accepted, in this Court and below, that those conversations did not themselves involve any sexual activity, or evince any intention of “making it easier to procure [the AOI] to engage in sexual activity” with the respondent. [8] This concession reflects the functional nature of the communication. That function was to terminate plans to meet. While that did not explicitly exclude further contact, the quality of the exchanges suggests this. In particular the last message sent by the AOI was “I’ll chat to you after school I guess”. This was an invitation from the AOI to further online contact in lieu of the abandoned meeting. The response “I’m sorry [sad emoji]” was not an acceptance of that invitation. It came on the back of a reversal of earlier plans. Viewed in its broader context, of both the abandonment of the meeting, and the change in tone and content of the conversation, it is consistent with Mr Bredal declining the invitation, but expressing it as an attempt at a gentle let down.

    8. Criminal Code (Cth) s 474.27(1)(c)

75. I am, for the reasons given above, of the view that it was open to the sentencing judge to find as a fact, on the balance of probabilities, that the respondent withdrew from not only any attempt to meet in person, but from the continuation of the offence altogether.

Ground 1 - the sentencing judge erred in finding exceptional circumstances

The nature of the error asserted

82. At the hearing the Director proceeded on the basis it was necessary for the Director to establish House v The King [9] error with respect to the sentencing judge’s finding that the circumstances were exceptional for the purposes of s 20(1)(b)(iii) of the Crimes Act. Mr Bredal responded to that case. It may be at least arguable, that s 20(1)(b)(iii) of the Crimes Act involves an evaluative judgment rather than the exercise of a discretion such that the correctness standard applies: see The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61]; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32 at [26]; Koschier v R [2024] NSWCCA 24 at [28]- [42]). Nonetheless, given the approach of the Director at the hearing I am of the view I should proceed on this basis.

    9. (1936) 55 CLR 499

The appellant’s specific complaints with respect to the finding of exceptional circumstances

Ground 1(b) - Voluntary withdrawal

83. The Director contends the sentencing judge erred in coming to his finding of exceptional circumstances in part by making an erroneous finding that the respondent had withdrawn from the offending. As discussed above in the context of ground 2, the sentencing judge found, and it was open for him to so find, the respondent voluntarily withdrew from the continued commission of the offence. The voluntary withdrawal of an offender from offending which is typically ongoing can be a very significant factor in mitigation of sentence. More typical examples are the ongoing supply of prohibited drugs (see R v Burns [2007] NSWCCA 228) or social security fraud (see R v Lopez [1999] NSWCCA 245 at [18]).

84. In R v Burns Harrison J (as the Chief Judge then was) said (at [27] and [29]):

27    The voluntary cessation of criminal activity is well recognised as a significant factor to be taken into account by a sentencing tribunal.

…

29    The respondent cited authority in support of the proposition that voluntary cessation of what is, typically, an ongoing activity, is a significant factor in mitigation for a number of reasons. See, for example, R v Lopez [1999] NSWCCA 245, R v Bacon (2000) 120 A Crim R 28 and R v Hutton [2004] NSWCCA 60. These factors are as follows. First, there is a public policy to be served in providing encouragement to offenders such as the respondent to cease their criminal activities. Secondly, specific deterrence is a matter to be given little or no weight. Thirdly, it provides strong evidence of remorse, contrition and rehabilitation. Finally, in some cases (although not the present case) it may support the proposition that the offence was committed as a result of need rather than greed.

85. See also R v Pickett [2010] NSWCCA 273 at [76]; Kennedy v R [2020] NSWCCA 49 at [43]; R v Sara [2020] NSWCCA 119 at [104].

86. Some of the considerations referred to by Harrison J in R v Burns were not relevant to the respondent with the result that his withdrawal was not as significant as will sometimes be in other (perhaps most) cases. The first of the factors referred to by his Honour was, however, relevant and important. There is a strong public policy in encouraging offenders to withdraw from what is otherwise ongoing, and potentially escalating, criminal activity. An offender in the position of the respondent should not be made to think that having embarked on a course there is nothing to be gained by desisting.

87. The last factor referred to by Harrison J in R v Burns, (evidence of need rather than greed) was not relevant. Nor, given the respondent’s plea of not guilty could his withdrawal be regarded as evidence of contrition or remorse. It was, nonetheless, capable of informing the applicant’s likelihood of re-offending and thus the need for specific deterrence.

88. A plea of not guilty, or failure to admit guilt is not, of itself, inconsistent with good prospects of rehabilitation. In Sigalla v R [2021] NSWCCA 22, Brereton JA (with whom Hoeben CJ at CL and Cavanagh J agreed) said (at [143]):

“No doubt an acknowledgement of wrongdoing may be a significant element in rehabilitation. However, while the absence of true remorse may reduce the weight that can be given to prospects of rehabilitation, it does not necessarily nullify them.Remorse is not a prerequisite to an assessment that an offender has some prospect of rehabilitation, and a plea of not guilty does not disentitle an offender from a finding that he or she has prospects of rehabilitation …” (Footnote omitted)

89. In Galli v NSW State Parole Authority [2006] NSWSC 206, Adams J said, at [18]:

“… there are a number of reasons why people do not admit their offences. Amongst the strongest of them is shame.”

90. It is relevant to note, in this context, rehabilitation and the unlikelihood of re-offending, while related, are distinct concepts: see Zuffo v R [2017] NSWCCA 187 at [47]-[49]. While the respondent’s denial of his offending raised a question as to whether he had undergone, or will in the future undergo, a complete internal reckoning, his decision to withdraw supported a conclusion that the offending conduct he had commenced was not something he wanted to pursue. Any uncertainty or ambivalence in this regard is likely to have been reinforced by the very significant consequences for him of his detection. The respondent’s lack of commitment to the conduct together with his arrest and sentencing are such as to found an inference that it is unlikely he will pursue such a course in the future. This conclusion is supported by other factors, discussed below.

91. Contrary to the appellant’s submission, the respondent’s withdrawal was an important consideration relevant to whether Mr Bredal had demonstrated exceptional circumstances.

Ground 1(a) - The respondent’s lack of prior convictions

92. The appellant complains that the sentencing judge erred in having regard to the Mr Bredal’s absence of prior convictions in finding that exceptional circumstances had been established. The short answer to this is, as observed above, exceptional circumstances are necessarily informed by matters that go to the purposes of sentence. An absence of prior convictions is such a matter, and one that can operate significantly in mitigation. That the respondent would have been facing a mandatory minimum sentence had this been a second offence of its type, does not change this.

93. Certainly, it might be doubted that the absence of a prior record alone could make a case exceptional. But it is a matter to which regard must be had, and which may, in combination with other matters, justify a finding that the case is relevantly exceptional. In this regard it should be noted that the evidence in the present case went beyond an absence of prior convictions, but rather established Mr Bredal’s prior positive good character: see Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 at [52], [106], [108]. The sentencing judge referred to Mr Bredal’s:

‘‘… lack of any prior criminal convictions or offences or traffic infringements or any anti-social history, his historical involvement in the Rural Fire Service and assistance to the community…”

94. The role of prior good character (beyond the absence of convictions) as a significant matter in sentencing is uncontroversial: see, for example, Elomar v R [2018] NSWCCA 224, per Hoeben CJ at CL at [116].

95. Mr Bredal’s lack of prior record also impacted the significance of a conviction being recorded. It is to be recognised that “the mere fact of conviction may be a punishment”: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [68] per Gummow J; see also Kirby J at [123]; Callinan J at [177], [186]. It may be that for a person with prior convictions, the entry of a further conviction may not matter great deal. The position for a person such as the respondent, having reached a mature age, and a responsible position in the community, without blemish is quite different. There was no question that the recording of a conviction was a necessary result. Nonetheless, the disapprobation inherent in the recording of a conviction, particularly for an offence of the present nature, does operate in and of itself as punishment.

Ground 1(c) - Failure to take into account the respondent’s plea of not guilty and failure to show contrition or remorse.

96. The appellant complains that the sentencing judge failed to have regard to a relevant factor in finding the case was relevantly exceptional, in that his Honour failed to have regard to the respondent’s plea of not guilty and the fact he had not shown contrition or remorse.

97. The fact that Mr Bredal had pleaded not guilty could not be treated as a matter adverse to him as opposed to the absence of a matter favourable to him, albeit the distinction has been described as “border[ing] on the metaphysical”: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 at [65]. Contrition and remorse are matters that, if established by an offender, operate in mitigation but which the respondent did not have available to him. The absence of these favourable factors on sentence was not disqualifying of a finding that the circumstances were exceptional.

98. With respect to the Director’s complaint that the sentencing judge failed to have regard to these matters, it would have been surprising had his Honour made specific reference to them in finding the circumstances to be exceptional. They were simply absent factors that could not be called upon in support of the finding. The proper approach to the question has been discussed above. His Honour was aware of all the circumstances of the case in determining whether the threshold of “exceptional circumstances” had been met. I am not satisfied there was any failure by his Honour to have regard to the matters referred to under this sub-ground of appeal.

Ground 1(d) - Error in finding the circumstances were exceptional

99. It can be accepted, as the Director contends, that in amending s 20(1)(b) to include s 20(1)(b)(ii) and (iii), Parliament was concerned to limit the prospect that a Commonwealth child sex offender will receive a wholly suspended sentence. Nonetheless, in doing so, Parliament also plainly left open the availability of such a sentence in an appropriate case, limiting such cases to those which can be described as “exceptional” for that purpose.

100. The Director argues that the various matters referred to by his Honour were not relevantly exceptional. The first matter referred to by the Director in this context is his Honour’s finding the offence was of a relatively low level of objective seriousness. The Director submits that treatment of the objective gravity of the offence as exceptional was wrong, and inconsistent with the legislative provision. His Honour did not, however, find that the objective gravity of the offence in and of itself made the case exceptional. His Honour took it into account together with other factors. He was right to do so.

101. The same may be said of the other matters referred to by the appellant under this ground: the respondent’s withdrawal; his cooperation with police and in the conduct of the trial; the absence of any attempt to misrepresent who he was, apart from lowering his age (which suggested a lack of planning or forethought in the commission of the offence); his lack of prior criminal history; the hardship which would be occasioned to his family; and that he had spent two days in custody.

102. All of these matters were relevant. With respect to the last of these, the Director’s submission that the time in custody was as a result of breaches of bail and was therefore “appropriate and unremarkable” misunderstands the nature of bail. Bail is not refused as punishment. Irrespective of how the time in custody came about, it was pre-sentence to custody solely referable to the offence and, consequently, a matter his Honour was required to take into account. (In the event it might also be noted Mr Bredal, in his affidavit of 22 August 2023, explained the extenuating circumstances leading to the breaches and the fact that, in the light of those difficulties, his bail conditions were varied.

103. The flaw in the appellant’s argument is that the sentencing judge did not find any of the matters referred to, on its own, was exceptional. It was the combination of those matters that led to the finding. All were relevant and available matters to take into account in this regard. As to whether the result was open to his Honour will be considered in the context of ground 4.

Ground 3 - the sentencing judge erred in finding the respondent’s conduct amounted to cooperation such that a five percent discount was warranted

104. The appellant accepted that the respondent’s conduct did amount to cooperation but contended that the allowance was unduly generous. No issue was taken with his Honour’s provision of a discrete discount. A discount of five percent, in the context of a relatively short sentence, does not produce a significant reduction. In these circumstances, the appellant’s contention is difficult to sustain.

105. Further, and in any event, the Director’s complaint was not with the length of the sentence but rather the order for Mr Bredal’s immediate release. Acknowledging this, at the hearing of the appeal the Director withdrew reliance on ground 3 as a “standalone” ground.

106. I would not uphold ground 3.

Ground 4 - manifest inadequacy

107. In The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 French CJ, Keane and Nettle JJ said (at [28]):

“Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

108. In Dinsdale v The Queen (2000) 202 CLR 32; [2000] HCA 54 Gleeson CJ and Hayne J said (at 325-326):

“Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.”

109. The present case is one in which it is said the inadequacy arises because “the wrong type of sentence was imposed”.

110. For the reasons given above, his Honour’s reasons reveal no patent error of principle in his approach to the finding of exceptional circumstances leading to the suspension of the sentence. That does not foreclose the possibility of latent error which the appellant contends is established on the basis that his Honour’s finding that the case was relevantly exceptional was not open.

109. In my view, it was open to his Honour to find the case was exceptional sufficient to warrant the complete suspension of the sentence of imprisonment. All of the factors referred to by his Honour were relevant in the manner I have discussed. Some had more significance than others. To my mind a number of factors were of particular significance.

110. Firstly, the respondent’s withdrawal from continued offending was, for the reasons given above, significant and entitled to weight. It was, at least, an unusual circumstance and relevant to a finding of exceptional circumstances.

111. In relation to the offending itself, the contact made by Mr Bredal with the AOI was on an adult chat site. There was no evidence to suggest that Mr Bredal was actively looking to engage with a child. That he continued to engage with the AOI, in the manner in which he did, after becoming aware of the AOI’s age, was morally reprehensible. The absence of any indication on searching the respondent’s home and electronic devices of an interest in children, and the respondent’s lack of prior record together with his withdrawal from the offending conduct, suggest that contact with a “child” may well not have occurred but for the undercover police operation. This conclusion is further supported by the absence of any attempt by the respondent to hide his identity. As has been noted, the extent to which he did misrepresent himself was with respect to his age which he lowered from 45 to 35. That misrepresentation was made in the respondent’s profile on the adult chat site, and repeated by the respondent in direct communication with the AOI. There is no reason to think that the reduction in age on the respondent’s profile was made in order to render it easier to have contact with children.

112. Relatedly, and contrary to a submission made by the Director, it was not irrelevant that the communications were with an AOI and not a real child. Of course, Mr Bredal did not know this, such that his moral culpability might be regarded as undiminished by this fact. Nor are the relevance of general and specific deterrence diminished. But the harm actually done remains a very relevant factor when sentencing for most criminal offences. It affects the determination of what is a sentence appropriate in all the circumstances by impacting the need to ensure the offender is adequately punished (s 16A(k), which perhaps incorporates factors such as retribution and denunciation. If not these remain relevant common law considerations.

113. I do not mean to suggest that the matters I have referred to above are such that Mr Bredal’s conduct was not objectively serious or concerning, particularly in the continuation of the communications on various occasions. They are, however, considerations which differentiate the case from many others.

114. Subjectively, for the reasons given above, the respondent’s absence of convictions and prior good character were, while not unusual, nonetheless, significant.

115. The respondent’s personal circumstances, including his role in caring for three children with special needs was both unusual and significant. No issue was taken with the relevance of this factor to the exercise of the sentencing discretion: s 16A(2)(p); Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75. Whilst the Director contended that others were available to care for the children, this did not deny the respondent’s significant role in their lives and the consequent difficulty his absence would cause. Senior counsel for the respondent submitted that this circumstance, on its own, came close to being exceptional. Again, whether that is so or not, need not be decided. It was a factor that was both significant and unusual.

116. Finally, as discussed above, it is not to be forgotten that a suspended sentence remains a sentence of imprisonment.

117. The above considerations, together with the various matters referred to in the context of ground 1, are such that contrary to the Director’s submission, the finding of exceptional circumstances was open to his Honour so as to justify wholly suspending the sentence, having regard to all the circumstances of the case.

118. It follows that ground 4 is not made out.

The Director’s revised position

121. Subsequent to the preparation of my draft judgment, an email was sent to the Court on behalf of the Director seeking leave to withdraw the submission that the determination of exceptional circumstances is a discretionary decision subject to review on the limited basis of a House v King error, and, further seeking leave to provide written submissions on the question as to the relevant test having regard to Koschier v R and GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore. Whilst not stating so explicitly, the effect of this is the Director wishes to argue that a “correctness” test applies. Mr Bredal’s solicitor was copied into the email, however no indication was given in the email that his consent was sought before sending the email. It should have been. No indication was given as to the opponent’s attitude to the application.

122. I would not grant the leave sought. There are a number of reasons that lead me to this view.

1. The matter has been heard and that hearing was completed with judgment reserved. As was said by McHugh J in Eastman v Director of Public Prosecutions(ACT) (2003) 214 CLR 318; [2003] HCA 28 at [29] and [31]:

“[29]    Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing - ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.

…

[31]    Once the hearing has concluded, the workload of the Court makes it impossible for the Court to give leave to file further submissions - with all the attendant delay in the Court's business by a fresh round of submissions. Efficiency requires that the despatch of the Court's business not be delayed by further submissions reflecting the afterthoughts of a party or - as perhaps is the case in this appeal - some dissatisfaction with the arguments of the party's counsel.”

2. While the above observations were made in the context of the workload of the High Court they are no less pertinent in the present context.

3. The case was argued on the basis that House v The King error was required. That was the case Mr Bredal responded to. He briefed senior and junior counsel to do so, presumably at some expense. He is entitled to be heard on any further argument, which would result in further to delay and expense.

4. The prospect of further delay in this case is particularly concerning. This is a Crown appeal. The outcome of the appeal will determine whether Mr Bredal goes to gaol. Any delay in the Court’s determination is likely to result in a state of prolonged anxiety (which I am prepared to assume: cf s 68 Crimes (Appeal and Review) Act2001 (NSW); R v JW [2010] NSWCCA 49).

5. In the event that leave were granted and Mr Bredal chose not to respond, the Court would be denied a contradictor. That would be an unsatisfactory context in which to decide an important issue.

6. If the view I take prevails the case will be decided on the basis that House v The King applies. There is an argument that this is wrong. That argument, however, has not been heard. The decision in this case will not, in those circumstances stand as authority that House v The King error applies in the present circumstances. A decision is not binding authority for something it assumes rather than decides: CSR Limited v Eddy (2005) 226 CLR 1; [2005] HCA 64; at 11 [13]; Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92; at [56] and cases there cited.

7. It is, in any event, not self-evident that the Director’s revised position is correct. Sentencing is classically an area for discretionary judgment. At common law tests have been formulated requiring an offender to establish exceptional circumstances. Examples include requiring exceptional circumstances to justify less than full-time custody for a person involved in trafficking drugs in substantial degree: R v Clark (Court of Criminal Appeal (NSW), 15 March 1990, unrep), since overruled by Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284; or requiring exceptional circumstances before hardship to others can be taken into account: see R v Panuccio (Court of Appeal (Vic), 4 May 1998, unrep); Markovic v R (2010) 30 VR 589; 200 A Crim R 510; cf Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75. It has never been suggested that the determination in such cases is other than the product of a discretionary judgment. Of course it is arguable that the position is different where there is a legislative dictate, albeit logic does not demand such an outcome. There are a number of sentencing provisions which require an evaluation of whether a bar, or precondition has been met. An example is the restriction on imposing a sentence of imprisonment unless satisfied “no other sentence is appropriate in all the circumstances of the case”: Crimes Act, s 17A. Or to similar effect “no penalty other than imprisonment is appropriate”: CSPA, s 5. These provisions have not been suggested to be other than an aspect of the discretionary determination of sentence. Section 20(1)(b)(iii), like those other provisions, explicitly refers to the Court being satisfied of the precondition. This, together with the well understood discretionary nature of sentencing, and the deliberately non-prescriptive nature of the expression “exceptional circumstances”, suggests the test in s 20(1)(b)(iii) of the Crimes Act refers to the properly formed opinion of the sentencing judge or magistrate as part of the exercise of the sentencing discretion.

8. I make the above points, not to express any view on the issue, other than that in proceeding as I propose, the Court would not be proceeding on an obviously incorrect basis.

9. Finally, in the event the matter were to be determined on a correctness test, it is doubtful I would come to any different view as to the appropriate outcome.

Conclusion

123. For the reasons given above I would dismiss the appeal. It is unnecessary to consider the residual discretion.

**********

Endnotes

Amendments

22 May 2024 - Redactions in [14], [68] and [72] made pursuant to the Court Suppression and Non-Publication Orders made on 16 May 2023 at Penrith District Court

Decision last updated: 22 May 2024