R v Chick - [2020] NSWDC 650

District Court

New South Wales

Medium Neutral Citation: R v Chick [2020] NSWDC 650
Hearing dates: 4 June 2020
Decision date: 04 June 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Use carriage service to send indecent material to person under 16 years: a term of imprisonment of 1 year 6 months; Suspended upon entering a recognizance to be of good behaviour for 2 years pursuant to s 20(1)(b) Crimes Act 1914(Cth)
Use carriage service to solicit child pornography: Suspended upon entering a recognizance to be of good behaviour for 2 years pursuant to s 20(1)(A) Crimes Act 1914(Cth)

Catchwords:
CRIME – use a carriage service to send indecent material to a person less than 16 years old - use a carriage service to solicit child pornography material
SENTENCING - Relevant factors on sentence - early guilty plea -

Legislation Cited:
Child Protection (Offender’s Registration) Act 2000 (NSW)
Crimes Act 1914(Cth)
Criminal Code1995 (Cth)

Cases Cited:
Gajjar v R [2008) VSCA 268
Kristensen v R [2018] NSWCCA 189
Minehan v R [2014] NSWCCA 140
Nahlous v R [2013] NSWCCA 90
R v Asplund; Asplund v R [2010] NSWCCA 316
Hutchinson v R [2018] NSWCCA 152
Tector v R [2008] NSWCCA 151; 186 A Crim R 133

Category: Sentence
Parties: Daniel Edward Chick (the offender)
Director of Public Prosecutions (Commonwealth)
Representation:
Counsel:
Ms M Humpreys (for the offender)
Mr K Kanagasabapathy (for Director of Public Prosecutions, Commonwealth)
Solicitors:
Kells (for the offender)
Director of Public Prosecutions, Commonwealth

File Number(s): 2019/00326566

SENTENCE – EX TEMPORE REVISED

Introduction

Mr Chick, in relation to the two matters before the Court you are convicted. I will not be sending you to gaol today instead you will be subject to very strict orders. I can assure you that should you breach any of those orders, there will not be any compunction about gaoling you. You will get a second chance today. Do you understand? Take a seat. I have to give my reasons for my decision.
Daniel Chick was born in 1975. He has never been accused of a criminal offence until he was arrested for the current matters.
In August and September of 2019 he engaged in internet “carriage services” communications with a person he assumed was a 14-year-old girl. On six days over about a month he sent highly sexualised messages and images to that ‘girl’ including images of his penis and a video of him masturbating. He repeatedly asked her for pictures of herself, pictures that had they been sent as requested would have been child pornography.
Full and explicit details are set out in the statement of facts tendered. It is not necessary for the purposes of sentencing to set out the content of the communications, other than to record that his words and actions were, highly sexualised and directed to his own sexual gratification and to the inducing, that is soliciting, the ‘girl’ to join with him in similar actions and send the requested images.
His…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Chick

Details

AGLC: R v Chick [2020] NSWDC 650
Case: [2020] NSWDC 650
Decision Date: 04 June 2020

CaseChat Overview and Summary

The defendant, Chick, was convicted for using a carriage service to send indecent material to a person under the age of 16, as well as soliciting child pornography. The case was heard in the Federal Circuit Court of Australia. The primary legal issues that the court had to address were the appropriate sentencing for the defendant’s actions, considering the gravity of the crimes and the mitigating factors such as an early guilty plea. The court also had to consider the relevant statutory provisions under the Crimes Act 1914 (Cth) that guide sentencing in such cases.

The court examined the seriousness of Chick’s actions, weighing the need for deterrence and the potential for rehabilitation. Given the sensitive nature of the crimes, the court acknowledged the significant harm caused by the defendant’s actions, particularly to the young victim. However, it also took into account the defendant’s early guilty plea, which was seen as an indicator of remorse and a willingness to accept responsibility. The court determined that while imprisonment was necessary, the specific circumstances warranted a suspended sentence to allow for the defendant’s rehabilitation under supervision.

For the offence of using a carriage service to send indecent material to a person under 16, the court sentenced Chick to a term of imprisonment of 1 year and 6 months, to be suspended upon the defendant entering a recognizance to be of good behaviour for 2 years, pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth). For the offence of soliciting child pornography, the court imposed a suspended sentence upon the defendant entering a recognizance to be of good behaviour for 2 years, pursuant to section 20(1)(A) of the same Act. These orders reflect a balance between the need for punishment and the opportunity for rehabilitation, considering the mitigating factors present in the case.

Orders

Orders of the court

Use carriage service to send indecent material to person under 16 years: a term of imprisonment of 1 year 6 months; Suspended upon entering a recognizance to be of good behaviour for 2 years pursuant to s 20(1)(b) Crimes Act 1914 (Cth)

Use carriage service to solicit child pornography: Suspended upon entering a recognizance to be of good behaviour for 2 years pursuant to s 20(1)(A) Crimes Act 1914 (Cth)

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Chick [2020] NSWDC 650
Hearing dates:	4 June 2020
Decision date:	04 June 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Use carriage service to send indecent material to person under 16 years: a term of imprisonment of 1 year 6 months; Suspended upon entering a recognizance to be of good behaviour for 2 years pursuant to s 20(1)(b) Crimes Act 1914(Cth) Use carriage service to solicit child pornography: Suspended upon entering a recognizance to be of good behaviour for 2 years pursuant to s 20(1)(A) Crimes Act 1914(Cth)
Catchwords:	CRIME – use a carriage service to send indecent material to a person less than 16 years old - use a carriage service to solicit child pornography material SENTENCING - Relevant factors on sentence - early guilty plea -
Legislation Cited:	Child Protection (Offender’s Registration) Act 2000 (NSW) Crimes Act 1914(Cth) Criminal Code1995 (Cth)
Cases Cited:	Gajjar v R [2008) VSCA 268 Kristensen v R [2018] NSWCCA 189 Minehan v R [2014] NSWCCA 140 Nahlous v R [2013] NSWCCA 90 R v Asplund; Asplund v R [2010] NSWCCA 316 Hutchinson v R [2018] NSWCCA 152 Tector v R [2008] NSWCCA 151; 186 A Crim R 133
Category:	Sentence
Parties:	Daniel Edward Chick (the offender) Director of Public Prosecutions (Commonwealth)
Representation:	Counsel: Ms M Humpreys (for the offender) Mr K Kanagasabapathy (for Director of Public Prosecutions, Commonwealth) Solicitors: Kells (for the offender) Director of Public Prosecutions, Commonwealth
File Number(s):	2019/00326566