R v Cui

[2023] NSWDC 422

District Court

New South Wales

Medium Neutral Citation:

R v Cui [2023] NSWDC 422

Hearing dates:

10 October 2023

Decision date:

13 October 2023

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

See page 27 of these Reasons

Catchwords:

CRIME – Using carriage service to groom and transmit indecent material

Legislation Cited:

Crimes Act 1914 (Cth), ss 16A(1), 16A(2)(k), 16A(2)(g),16A(2)(j), (ja), 16A (2)(m), 16A(2AAA), 17A, 20AB (1AA)(a)(iii)

Crimes (Sentencing Procedure) Act 1999, s 8

Criminal Code (Cth), s 474.27(1)

Cases Cited:

DPP (Cth) and DPP v Garside [2016] FSCA 74

DS v R [2022] NSWCCA 110

DS v R, DM v R [2022] NSWCCA 156

in DPP (Cth) v Garside [2016] VSCA 74

Patterson v R [2021] NSWCCA 273

R v Gajjar [2008] VSCA 268 - 192 A Crim R 76

R v Michael Nahlous [2013] NSWCCA 90

Totaan [2022] NSWCCA 75

Category:

Sentence

Parties:

Rex
Ruijie Cui (Offender)

Representation:

Counsel:
A Brown (Crown)
A Mathur SC (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)

File Number(s):

2022/282235

Publication restriction:

None

JUDGMENT: ex tempore

1. HIS HONOUR: The offender Mr Cui is being sentenced for the following offences to which he entered pleas of guilty at Downing Centre Local Court on 27 June 2023.

Sequence	Offence	Description	Maximum Penalty
1	Section 474.27(1) Criminal Code (Cth)	Using a carriage service to groom a person under 16 years for sexual activity	15 years imprisonment
2	Section 474.27A(1) Criminal Code (Cth)	Using carriage service to transmit indecent material to person under 16 years	10 years imprisonment

Pre-sentence Custody

2. The offender was arrested on 21 September 2022 and was granted conditional bail on 24 November 2022. Accordingly there is 65 days of pre‑sentence custody to be taken into account.

Maximum Penalty

3. The offences carry maximum penalties of 15 and ten years respectively. The maximum penalty provided serves an indication of the seriousness with which Parliament views the particular offences, a yardstick for sentencing and a basis for comparison between the case before the Court and the putative worst case.

Sentence for Commonwealth Offences – General Principles

4. Section 16A(1) of the Crimes Act 1914 (Cth) provides that:

“In determining the sentence to be passed, or the order to be made . . . a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.”

5. This obligation has been referred to “the primary obligation”.

6. Section 16A(2) of the Crimes Act (Cth) then provides a non‑exhaustive “checklist” of the matters take into account if relevant and known to the Court in sentencing Commonwealth offenders.

7. Specifically, in addition to any other matters the Court thinks are relevant the Court must take into account a series of specific matters as are relevant and known to the Court.

8. This “checklist” is not a catalogue of considerations which is exclusive of other relevant considerations each consideration is “in addition to any other matters” which are determined to be relevant on the question of sentence in a particular case.

Imprisonment

9. Section 17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment in respect of a Commonwealth offender unless the Court having considered all other available sentences is satisfied that no other sentence is appropriate in all the circumstances of the case.

Principles relevant sentencing for online child exploitation offences

10. The applicable principles to which regard should be had when sentencing for online child exploitation offences such as are before me include:

1. General deterrence which is significant sentencing consideration as there is paramount public interest in promoting the protection of children.

2. Such offences are becoming increasingly prevalent with the advent of the internet as a means of allowing predators to use the internet anonymously to forge relationships with children as a first step to luring them for sexual abuse.

3. A sentence of immediate imprisonment will ordinarily be required for such offences.

4. There is an intrinsic harm caused by sexual offences involving children.

5. Evidence of prior good character will often have limited weight in such matters.

6. Whilst the presumption of harm does not arise where there is no victim, for example, where the recipient of the communications is, as in this case, an undercover police officer, that does not lessen the seriousness of the offending, as the Court noted in R v Gajjar [2008] VSCA 268 - 192 A Crim R 76 after referring to several authorities:

“An offender’s conduct was to be regarded as no less morally reprehensible merely because the person to whom the communication was made was, unbeknown to him, an undercover police officer.”

7. Factors that have been considered relevant in assessing the seriousness of offending involving the online grooming of children include;

1. The number, length and type of conversations between the offender and the victim.

2. The frequency of conversations and the level of persistence shown by the offender.

3. The nature of any sexual material communicated.

4. The extent to which the intent to future activity which is exposed and developed.

5. The nature of the sexual activity intended.

6. Whether any inducements were offered, including alcohol or money, or whether any threats were made.

7. Whether the victim was a real person.

8. Any age or power differential between the offender and the victim.

9. The nature of any prior relationship between the offender and the victim.

10. The offender’s level of awareness and deliberateness in the communications, and,

11. The planning and sophistication involved in the offence, including any steps taken by the offender to protect his or her anonymity.

The parties’ ultimate submissions

11. The Crown’s ultimate submission is that having regard to the nature and gravity of the offending, the presumption in favour of actual imprisonment that applies to such offences, the need for significant weight to be given to general deterrence (and the absence of any reason to moderate that weight) and the need to denounce conduct and to protect a vulnerable class within the community from sexual exploitation that the only appropriate penalty is a term of imprisonment with a non-parole period.

12. On behalf of the offender the ultimate submission is that s 17A of the Crimes Act obliges a court not to pass a sentence of imprisonment unless having considered all other available sentences it is satisfied that no other alternative is appropriate in the circumstances of this case, and notwithstanding the presumption in these sort of cases generally in favour of imprisonment this is not such a case because of the reduced objective gravity of the offences taken in conjunction with the peculiar circumstances of the case, the offender’s low likelihood of recidivism, his excellent prospects of rehabilitation and the particular onerous period of remand (65 days) he has already served speak to the appropriateness of an order that does not involve any further period of imprisonment.

Outcome

13. For the reasons that follow I have decided to accept the offender’s submissions and whilst I propose to order a period of imprisonment, I will make an order that the offender be immediately released on conditions.

My Reasoning

Adequate punishment: ss 16A(1) and 16A(2)(k) Crimes Act 1400 (Cth)

14. I have had regard to the maximum penalties applicable to determine the extent to which the offender’s conduct offends against the legislative object of suppressing the grooming of children online for sexual purposes and the exposure of children to indecent material.

15. Section 16A(2)(k) emphasises the obligation of the Court to “ensure the person is adequately punished for the offence”. Clearly enough this involves weighing up all of the relevant factors but importantly the starting point must be the objective seriousness of the offences.

Nature and circumstances of each offence: s 16AA(2)(a)

16. The nature and circumstances of the offences are set out in the agreed statement of facts which has been tendered before me. In summary they are:

Sequence 1

17. The offender engaged in on-line communication with an undercover police officer posing as a 13 year old female (the AOI) after - using the Chatiw screen name “unzipped”. He initiated an on-line conversation on 20 May 2022. During that conversation,

1. Was told that the AOI was 13 years old.

2. Quickly turned the conversation sexual.

3. Described in graphic terms various forms of sexual acts he wanted to perform on the AOI.

18. The conversation on 20 May 2022 then moved onto another platform where the offender continued to engage in a highly sexualised conversation with the AOI and sent two images depicting adults engaged in sexual activity.

19. On 25 May 2022 there was further significant communication between the offender and the AOI which included,

1. Offering to be her “sugar daddy”.

2. Telling the AOI to keep it “secret” if they met up.

3. Again describing in graphic terms sexual acts he wanted to perform on the AOI, including oral sex.

4. Encouraging the AOI to touch herself.

5. Sending two further images to the AOI depicting adults engaged in sexual activity.

6. Again raising the possibility of meeting with the AOI.

20. Further messages were sporadically exchanged between 26 May 2022 and 1 June 2022 which was the last date of these messages.

Objective Seriousness / Moral Culpability

21. The Crown emphasises that the fact that the “victim” in the matter was not a real child does not make the offence any less morally reprehensible nor does it amount to a mitigating factor, and reminds me that s 474.20.9A requires certain mandatory factors to be taken into account of which only the age (13) and maturity of the victim, or intended victim of the offence, is one.

22. On behalf of the offender it is submitted that the offence falls at the lower end of the range of objective seriousness and the offender’s moral culpability is not high.

23. Assessing the objective seriousness of offences such as this is a separate but related task to assessing the moral culpability of an offender -

24. DS v R, DM v R [2022] NSWCCA 156 at [63] – [66]. The assessment of an offender’s moral culpability is not a component of the assessment of the objective gravity of the offence but an assessment of an offender’s moral culpability includes consideration of the objective seriousness of the offence, together with the offender’s personal circumstances.

25. It has been said that in some cases an offender’s mental impairment can affect both the moral culpability of the offender as well as the objective seriousness of the offence. But while a mental impairment may affect an assessment of objective seriousness it does not necessarily do so even if there is a causal connection between the impairment and the offences, DS v R [2022] NSWCCA 110, Patterson v R [2021] NSWCCA 273. Quite where the line is drawn to identify the necessary nexus so as to allow mental impairment to be relevant to the consideration of objective seriousness is to my mind a little obscure.

26. I accept the offender’s submission that at the relevant time he suffered from a major depressive illness, currently in remission. I shall return to this topic later in these reasons however I have concluded that there is a connection between the offender’s mental health condition at the time of the offending and the offending that is relevant to both the objective seriousness of the offences, as well as the moral culpability of the offender, together with his prospects of rehabilitation and re-offending. To put it simply I do not think the offending would have occurred but for the offender’s mental health.

27. When assessing the nature and circumstances of the offence, I should record that I accept the offender’s submission that his motivation in engaging in the offending conversation, and his disregard for the age of the victim was that they were but manifestations of fantasies and never intended by him to be acted upon.

28. Both the medical evidence and the sworn evidence of the offender supports this contention.

29. Accordingly in relation to the nature and circumstances of the offence I find that it falls towards the lower end of the range of objective seriousness and that the offender’s moral culpability is not high, and that his motivation was to satisfy some fantasy rather than to take the sexual encounters further. As I have said I do think that there is at least some connection between the offending and the offender’s mental health condition if for no other reason that I am convinced that, if not for the mental health condition, the offending would not have occurred.

30. I appreciate that the offence is complete simply by the conversations and with the offender having an intention to continue the sexualised conversations with a person he understood was 13 years old. Nonetheless I think his moral culpability in light of his mental health diagnosis which is to my mind extremely relevant, and as I will come to equally important when considering his prospects of rehabilitation and re-offending.

31. I conclude that the objective seriousness of this offence is well towards the lower end of the scale.

Sequence 3

32. The offender initiated a conversation with a separate AOI on 17 August 2022. During the course of that conversation:

1. He was told that this AOI was 14.

2. He then turned the conversation towards sexual matters.

33. The AOI provided the offender with her phone number during the course of the conversation however he never made any attempt to make any further contact with her.

Objective Seriousness

34. The Crown submits that this represents a moderately serious example of an offence of this type having regard to the following matters.

1. The offender was told by the AOI early on in the communication that she was 14 years of age. And his response was to immediately pursue the possibility of sexual activity.

2. The communications were limited to a single day and the offender did not attempt to re-engage with further conversations.

3. The sexual material communicated was text based and in moderately graphic terms.

4. There was a discussion about keeping the communications secret.

35. The offender’s submission is that this conduct is even more towards the lowest end of objective seriousness and the other offending because it was limited to a single day. The offender did not attempt to re-engage with further conversations. It did not involve the transmission of any sexually explicit images, has less repetition and a lower volume of messages. Moreover as with the other matter there is a complete absence of any suggestion of planning or sophistication and no effort at all was made by the offender to conceal his identity.

36. I think it is important to observe that despite being given the “victim’s” phone number the offender never followed up the victim even though there was a gap of some five weeks between this conversation and his arrest.

37. I conclude in relation to the Sequence 3 offence that it is very much towards the lower end of objective seriousness and for reasons I gave in relation to the other offence, the moral culpability of the offender in all the circumstances is low.

General and specific deterrence: ss16A(2)(ja) and 16(2)(j)

38. As I have said general deterrence is of particular significance when sentencing for offences of this type given the difficulty of their detection and the substantial public interest in promoting the protection of children, especially in the new world of online communications.

39. I accept that general deterrence looms large but for reasons I will explain I do not think in this case there is any particular need for specific deterrence. Moreover, because of his mental health issues at the time of the offending I also do not consider that the offender is a particularly suitable candidate to be used as an example for the purposes of general deterrence.

Character, antecedents and age: s 16A(2)(m)

40. The offender is currently 39 years of age and was 38 at the time of the offending.

41. He has no criminal history, however, as was observed in DPP (Cth) v Garside [2016] VSCA 74 that is often the case in these types of offences.

42. The offender appears otherwise to be of exemplary character to the extent that I conclude that the conduct before me was an aberration explicable by his mental health issues in the context of the COVID lockdowns.

Guilty plea: s 16A(2)(g)

43. The offender entered pleas of guilty to each of the offences in the Downing Centre Local Court on 27 June 2023.

44. The Court must take into account the fact and timing of the guilty plea but the degree to which the fact and timing of the plea resulted to any benefit of the community or any victim or witness to the offence and so doing the following considerations apply:

1. The New South Wales mandatory discount scheme does not apply to Commonwealth offences. The fact that a plea may, however, be relevant for its subjective value as evidence of general contrition, acceptance of responsibility and or willingness to facilitate the course of justice, and

2. The Court must have regard to the utilitarian or objective value of a guilty plea even in the absence of any subjective value.

45. The Crown accepts that the pleas were entered at the first reasonable opportunity.

46. I have decided to allow the full 25% discount which would be available under the New South Wales legislation notwithstanding that it is reasonably clear that the Crown case against the offender was very strong.

Contrition and co-operation with law enforcement authorities: s 16A(2)(f) and (h)

47. In my opinion contrition and remorse are best shown by “taking action . . . or in some other observable manner” and needs to be established by proper evidence rather than mere statements of appropriate words. To put it bluntly, it is my opinion that in this context actions very much speak louder than words.

48. For reasons I will explain I am satisfied that in this case the offender has been cooperative with authorities and that the offender is genuinely remorseful and contrite and has with the help of some medical professionals established a real insight into his offending, why it occurred and how it is that he can work on preventing it from occurring again.

49. There is evidence of both contrition and a level of cooperation with law enforcement authorities in the form of the offender’s guilty plea, his admission to police upon arrest, his provision of passwords to devices and his admissions made during the course of a recorded interview.

50. However, his endeavours to get medical help to treat his underlying mental health conditions to my mind is objective proof of real remorse, contrition and insight.

51. The offender gave sworn evidence before me that he is genuinely contrite and remorseful which I accept which in light of all the other evidence I accept.

Prospects of rehabilitation: s 16(2)N

Rehabilitation in child sex offences: s 16A(2)AAA

52. The Court must have regard to the objective of rehabilitation, including by considering whether it is appropriate that any order should include a condition about rehabilitation or treatment options or that the length of any sentence to be imposed should include sufficient time for an offender to undertake a rehabilitation program. However, that section does not displace the requirement that the sentence must be of a severity appropriate in all the circumstances of the offence. I shall return to this topic shortly but I am satisfied that the offender’s prospects of full rehabilitation are high and that the corresponding prospect of him reoffending is low.

Effect of any sentence on the Offender’s family: s 16A(2)(p)

53. This section requires the Court to consider, if relevant, “the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants”.

54. In Totaan [2022] NSWCCA 75, Bell CJ (with whom Gleeson JA, Harrison, Adamson and Dhanji JJ agreed) held that decisions which have said that

“Decisions which have held that a court imposing a sentence for a Federal offence may only have regard to hardship to a family member or dependant where the circumstances of hardship satisfy the epithet “exceptional” are “plainly wrong” and should not be followed.”

55. The Court also held that authorities which have held that:

“...authorities which have held that hardship must rise to the level of “exceptional” before being given a specified weight, or resulting in a substantial reduction of sentence, are wrongly decided and should not be followed.”

56. Thus the law in New South Wales is that “section 16A(2)(p) should be applied according to its terms.” The Court should consider any hardship to the offender’s family or dependants as part of the instinctive synthesis that is at the heart of the sentencing process even if it can be said that the hardship is not of itself exceptional. That said, as with all of the listed factors in s 16A(2) the weight to be given to this consideration is a matter of discretionary judgment which will always turn on the facts of any particular case.

57. The offender has a wife and female primary school aged children. It is clear that they will suffer greatly if he is in prison. They have already suffered significantly as a result of his arrest and period of incarceration. They are innocent victims to what has happened here and I do give weight to the impact of any further period of imprisonment would have on them.

Presumption of actual imprisonment: s 20(1)(b)(ii)

58. It is important to remember that the effect of s 20(1)(b)(ii) is that if a court determines a sentence on a Commonwealth child sex offender to imprisonment but with a release on a recognizance order there is a presumption that they will serve some period of actual imprisonment before release unless there are exceptional circumstances that justify being released immediately on a recognizance release order.

Why did the Offender offend?

59. In light of the offender’s otherwise exemplary character and my finding that the offending was entirely anomalous with that character. This question has to be asked and answered.

60. I make the following findings:

1. The offender engaged in sexual chats online with strangers due to intimacy issues with his wife.

2. Save for the offences that are before me (and perhaps one when he posed as a woman), the balance of the offender’s online chats for a period of more than two years were always with people he understood to be adult women.

3. At the time of the offending chats the offender was simultaneously messaging adult women.

4. The offender did not have possession of any other child abuse material such as pornographic images of children.

5. The offender was not looking for relationships or to meet up with people, rather he was engaging in flirtations and sexually explicit conversations in some form of fantasy world.

6. The offender did not intend to act on his conversations, the sexualised conversations were the end in and of themselves.

7. The conduct was largely, if not entirely, a consequence of the offender’s mental health condition at the time and was some form of attempt, (albeit subconsciously) to self-medicate for those problems. I also suspect that there is an element of addiction in this sort of activity and whilst there is no particular evidence before me I think having regard to all of the evidence I ought to infer that the offender had become addicted to the short‑term thrills that might be obtained from online sexual chats.

8. Conversations with both of the AOI’s were ceased by the offender just as they might have appeared to be on the precipice of an in person meeting - again this underlines my finding that he never had any intention of meeting up with the victims.

61. When the offender was arrested and police seized all the electronic equipment from his home namely his laptop, two phones and a USB, no child abuse material (save for the instant offences), or any material of interest was found.

62. Dr Pulley who has treated the offender identifies the absence of any evidence of child pornography material on the offender’s devices is something which supports the offender’s explanation of no sexual interest or fantasies about children.

63. Dr Pulley says that this absence “would be surprising if he had been using the internet to satisfy his need for gratification of paedophilic fantasy.”

64. I accept the sexualised conversations were the end, in and of themselves rather than a means to procure further sexual conduct with the other party to the conversation and this to my mind reduces the seriousness of the offence.

65. I also accept that the offender was engaging in chat room conversations to fill a gap in his relationship and was attempting to seek to address (by some form of self-medication) the symptoms of his depressive illness. Further I accept that the offender did not intend to meet or have any type of physical relationship with the AOI’s and that the chats were manifestations of his fantasies.

66. Ms Mathur, senior counsel for the offender who has assisted me with extremely comprehensive and helpful submissions puts it this way.

“The evidence in this case argues powerfully for a finding that this case falls within the category of cases where both the objective seriousness for the offending and moral culpability of the offender are reduced and the offences fall towards the lower end of the scale for this type of offending.

Further the accumulative effect of the nature of the offences themselves, coupled with the nexus between the offender’s major depressive illness and the offending are highly relevant.”

67. I find that the offending was an aberration caused by the peculiar circumstances that the offender found himself in at the time in the context of the COVID lockdowns together with his mental health issues. I find that the conduct was entirely out of character and therefore that it is highly unlikely that it will reoccur especially in light of the offender’s commitment to ongoing treatment to which I will come.

Specific deterrence: s 16A(2)(j)

68. It is well established that an offender’s mental health at the time of offending may have the consequence that he is not an appropriate vehicle for general deterrence resulting in a reduction in the sentence that would otherwise have been imposed. As I have said, I have taken into account the offender’s mental health when considering the question of general deterrence.

69. As to specific deterrence, in my judgment this has been met in this case when consideration is given to what the offender experienced following his arrest, namely:

1. The offender went from having no experience with the criminal justice system to spending 65 days on remand in what he describes and what I accept, was a terrifying and devastating experience.

2. Whilst in custody he was racially bullied, felt intimidated, coerced to hand over his meals, slept in a cell with cockroach infestation and was exposed to the issue of illicit drugs for the first time in his life.

3. He deteriorated physically and mentally because during the, what might be thought to be the short period of 65 days, there were two periods in which he spent in solitary confinement. They being respectively 14 days and ten days of COVID isolation, both exposing him to complete confinement to his cell with no fresh air.

4. He was held in protective custody until released on bail as a result of the nature of his offending.

5. Upon his release the offender spent eight months subject to extremely strict bail conditions, including a curfew which has had a significant impact on his life and the lives of his family members. Significantly he was prevented from finding work due to restrictions on accessing the internet.

6. Specific deterrence also requires a close consideration of whether it is likely that an offender will reoffend without further punishment (R v Michael Nahlous [2013] NSWCCA 90 at [89]).

70. Having regard to my assessment in respect of rehabilitation and likelihood of recidivism which are very high and very low respectively this further attenuates the need for specific deterrence in this case.

Rehabilitation: s 16A(2)

71. As I have said in my opinion the offender has excellent prospects of rehabilitation and the correspondingly low likelihood of recidivism.

72. Mr Dombrowski’s opinion (psychologist) provided in aid of a bail application is that:

1. In assessment the offender gave no indication of any serious personality pathology.

2. Cognitive behavioural therapy and pharmaco therapy will assist in his desires to overcome his depression and social intimacy deficits and he has expressed a strong desire to access such treatments which is a positive prognostic factor.

3. The offender has minimal criminogenic needs.

4. The offender is not likely to require close monitoring to maintain stable law abiding behaviour in the community.

5. There is no evidence, (either personal to the offender or in the literature) to support an assertion that he would be a risk to his own children.

6. There is no indication that it would be unsafe for him to return to live in his family home.

7. Supervised access to the internet may be a useful safeguard if released on bail.

73. Dr Pulley’s opinion provided in anticipation of the offender’s sentencing proceeding is that:

1. There is insufficient evidence to diagnose the offender with a paraphilia (e.g. paedophilia).

2. The offender has very good prospects of rehabilitation due to his willingness to engage with treatment, stable background, acceptance of responsibility for the offending behaviour, lack of antisocial attitudes and likelihood of compliance with conditions of a non‑custodial order.

74. Dr Pulley concludes that when consideration is given to the presence or absence of risk factors, the offender presents as someone who is at a relatively low risk of recidivism.

75. The offender has already made significant progress in addressing his mental health issues that are the root cause of his offending. Dr Pulley describes him as appearing to have good insight into his mental health problems and having entered remission. Further his actions and the reflections of his wife demonstrate that he has and will continue to seek treatment and enact preventative measures to his life to avoid the recurrence of offending. To reincarcerate the offender would, to my mind, not only interrupt his progress to date but would almost certainly lead to a significant decline in his mental health.

76. His treating psychologist Natalia James reports as follows:

“The offender remains dedicated and committed to continue therapy by weekly sessions... The offender is diligent and entirely engaged in therapy. The offender reports that he is adamant in resolving his issues in a timely managed manner ... in order to achieve long‑term sustainability and improve his general quality of life...

The chances of the offender reoffending are low. He has no personality disorder. He has no past offences. He is well supported. He functions well in the workplace. He is supported by his family and his friendships.”

77. That statement is consistent with all of the other evidence including a statement in the sentencing assessment report tendered before me and I accept it.

78. Given the uniform opinions of all the medical professionals as well as the offender’s ongoing active treatment of his mental health issues by way of formal psychological treatment with Ms James, open discussions with his wife and deep self‑reflection the overwhelming evidence is that the offender has excellent prospects of rehabilitation.

Remorse

79. In his affidavit the offender has articulated a compelling expression of remorse for his conduct. He states, “I cannot forgive myself for what I have done. I am sorry.” He speaks of living with great regret and shame. His oral evidence before me was thoughtful, insightful and, I felt, honest. It was demonstrative of a person who has reflected deeply about his actions. It is apparent he has come to understand the impact of his actions on his family, the community and himself. This is all supported by the observations of Ms James and her ongoing sessions with him.

80. It is for those reasons I accept that the offender is genuinely remorseful.

Consideration

81. When regard is had to all the circumstances I have mentioned I have come to the conclusion that adequate punishment can be achieved by community based order with conditions.

82. That is having regard to all the matters I have mentioned, inter alia the seriousness of the offences generally, the presumption of imprisonment, the nexus between the mental health and the offending, the offender’s time on remand and bail, his excellent prospects of rehabilitation and low likelihood of reoffending, his early plea of guilty and cooperation with the authorities, the low end of objective seriousness of the offences, the offender’s reduced moral culpability, his genuine remorse and contrition, I have come to the conclusion that no further period of imprisonment is warranted.

83. The initial question for me is whether I am satisfied that the “threshold” position imposed by s 20(1)(b)(ii) of the Crimes Act is a period of actual imprisonment is appropriate absent “exceptional circumstances”. I keep in mind that in these type of cases the starting point is that the presumption that imprisonment will be necessary.

84. In that regard I think it important to emphasise that the offender has in fact already spent 65 days in custody as a direct result of these offences. I approach the question of “exceptional circumstances” from that perspective.

85. I have formed the view for all the reasons I have already given and taking into account all of the factors to which I have referred that exceptional circumstances have been made out and that the appropriate sentence in this case is a term of imprisonment but with the immediate release of the offender subject to reasonably stringent conditions as to ongoing treatment.

Totality

86. Everything I have said in this judgment applies equally to each offence. Notwithstanding the gap of a few months between the offences, the subject of the two charges, I really think I should assess the totality of the criminality together. To do otherwise would, I think, be productive of an unjust result. I have decided to impose a wholly aggregate sentence for both offences.

Summary and Decision

87. Taking into account all the matters I have mentioned but in particular my view as to the prospects of the offender’s full rehabilitation and his very low prospects of reoffending and the other matters I have mentioned, I have decided to impose an indicate sentence for both offences of one year imprisonment commencing today. I propose that those terms be served wholly concurrently as an aggregate sentence.

88. Pursuant to s 20(1)(b) of the Crimes Act I have decided that the offender will be immediately released upon conditions which I will shortly announce.

89. As I am sentencing the offender for a “Commonwealth child sex offence”, there is a presumption the offender must serve a period of imprisonment before release unless I am satisfied that there are exceptional circumstances. For the reasons I have given I am so satisfied but in those circumstances s 20(1B) mandates some of the conditions that must be made as part of the order. I propose to impose those conditions amongst others.

Orders

90. Mr Cui, would you please stand up.

1. Mr Cui, you are convicted of the charges to which you have pleaded guilty.

2. For each of the offences you are sentenced to a term of one year imprisonment commencing today to be served concurrently.

3. The indicative sentence for each offence is 1 year commencing today.

4. I direct that the offender be immediately released upon the following conditions:

1. The offender is not to commit any offence.

2. The offender must appear before the Court if called on to do so at any time during the sentence.

3. The offender is to be referred to a Corrective Services New South Wales psychologist for further sex offending, risk assessments to identify dynamic risk factors specific to the offending and for consideration of supervision treatment options over and above those that he is already undertaking.

4. The offender is to have contact with his Community Corrections officer every two weeks. Supervision contact with Community Corrections is to include positive behaviour changes, exercises to assist and encourage positive communication skills, an exploration of prosocial and respectful interpersonal relationships.

5. Community Corrections is to have regular contact with the offender’s treating psychologist (Natalia James) to verify and monitor his attendance and progress at intervention to address his mental health issues.

6. The offender is to attend at least fortnightly appointment with his treating psychologist, Natalia James, or such other medical professional as is approved in writing by his Community Corrections officer.

7. The offender is to attend appointments with a psychiatrist every six months to oversee his psychological treatment.

8. The offender is not to seek employment or voluntary work with any institutions/organisation that is involved with persons under the age of 16.

9. The offender is to be the subject of the supervision of a probation officer.

10. The offender is to obey all reasonable directions of a probation officer.

11. The offender is not to travel interstate or overseas without the written permission of his probation officer.

12. The offender is to undertake such treatment or rehabilitation programs over and above those already in place that his probation officer reasonably directs.

13. The Offender is to give security of $1.00, without surety.

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Decision last updated: 20 October 2023