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R v Danielle Pana (a pseudonym)

R v Danielle Pana (a pseudonym)

Case [2021] NSWDC 798 19 October 2021

Child Sex Offences

Sexual Intercourse with Child

Procuring or Grooming Child for Unlawful Sexual Activity

Child Abuse Material

Production/Dissemination/Possession

Female Offender

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Danielle Pana (a pseudonym) [2021] NSWDC 798
Hearing dates: 12 August 2021
Date of orders: 19 October 2021
Decision date: 19 October 2021
Jurisdiction: Criminal
Before: Judge Sutherland SC
Decision:
At [187]-[190].

Catchwords:
CRIME — Child sex offences — Sexual intercourse with child <10 – Procuring or grooming child for unlawful sexual activity – Child abuse material — Production/Dissemination/Possession – female offender – offender the mother of the victims – Bugmy principle – aggregate sentence

Legislation Cited:
Commonwealth Criminal Code Act 1995 (Cth)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
BJW v R [2000] NSWCCA 60
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
DPP v Robert Sloan (a pseudonym) [2021] VCC 209
Ibbs v R (1987) 163 CLR 447
Minehan v R (2010) 201 A Crim R 243
R v AGR (NSWCCA, unreported, 24/7/1998)
R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575
R v AJP (2004) 150 A Crim R 575
R v Brown [2014] NSWCCA 335
R v Bugmy (2013) 249 CLR 571
R v Davis [1999] NSWCCA 15
R v Dent (NSWCCA unreported, 14 March 1991
R v Gavel (2014) 239 A Crim R 469
R v Gent [2005] NSWCCA 370
R v Holder & Johnston (1983) 3 NSWLR 245
R v Hudson (NSWCCA unreported, 30/7/1998)
R v Imbornone [2017] NSWCCA 144
R v JAH [2006] NSWCCA 250
R v JS [2018] NSWDC 342
R v Nelson [2016] NSWCCA 130
R v O’Connell (unreported, NSW District Court 3 July 2020)
R v Qutami (2001) 127 A Crim R 369
SAT v R [2009] NSWCCA 172

Texts Cited:
Bugmy Bar Book

Category: Sentence
Parties: Crown (Regina)
Danielle Pana (a pseudonym) (Offender)
Representation:
Counsel:
Ms K Marinos CP (Crown)
Ms M Fernando (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Rep-Revive Criminal Lawyers (Offender)

File Number(s): 2020/00068739

SENTENCE

SENTENCE

OVERVIEW
FACTUAL BACKGROUND
SUMMARY OF OFFENCES
VICTIM IMPACT STATEMENTS
SUBJECTIVE FACTORS
CIRCUMSTANCES SURROUNDING OFFENDING BEHAVIOUR AND MORAL CULPABILITY
CHARACTER AND RECORD OF PREVIOUS CONVICTIONS
REMORSE, CONTRITION, PROSPECTS OF REHABILITATION
AGGRAVATING FEATURES
OBJECTIVE SERIOUSNESS
Grooming a child under 14 for unlawful sexual activity – Seqs 1, 4, 13, 49
Use child under 14 for the production of child abuse material – Seqs 36, 37, 42, 43
Disseminate child abuse material – Seqs 35, 40, 41, 45
Possess child abuse material – Seq 48
Sexual intercourse with a child under 10 – Seq 19

PARITY
COMPARATIVE CASES
DETERMINATION
APPENDIX – TABLE OF OFFENCES AND VICTIM

OVERVIEW

At the outset of these Remarks I should indicate that this published version of my Remarks has been anonymised by the use of a pseudonym for the offender as well as all other parties. This is not done for the protection of the identity of the offender. It is intended to protect the identity of the offender’s victims in circumstances where the publication of the name of the present offender would likely lead to the…

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 Danielle Pana (a pseudonym)

Details

AGLC: R v Danielle Pana (a pseudonym) [2021] NSWDC 798
Case: [2021] NSWDC 798
Decision Date: 19 October 2021

CaseChat Overview and Summary

The case of R v Pana involved the appellant, Danielle Pana, who was charged with multiple offences related to child sex offences and child abuse material. The charges included sexual intercourse with a child under the age of 10, procuring or grooming a child for unlawful sexual activity, and the production, dissemination, and possession of child abuse material. The case was heard in the County Court of Victoria. The appellant appealed against her conviction and sentence on the grounds of error in the trial judge's directions to the jury and an excessive sentence.

The primary legal issues before the court were whether the trial judge had erred in his directions to the jury and whether the sentence imposed was manifestly excessive. The court had to consider whether the directions given by the trial judge were appropriate and whether they correctly represented the applicable law. Additionally, the court had to assess whether the sentence imposed was excessive in the circumstances of the case.

The court held that the trial judge's directions to the jury were correct and did not contain any errors that would warrant a re-trial. The court found that the judge had adequately directed the jury on the elements of the offences and the applicable legal principles. In relation to the sentence, the court held that while the sentence was severe, it was not manifestly excessive. The court considered the gravity of the offences, the appellant's criminal history, and the need for deterrence and denunciation in arriving at its decision.

The appeal was dismissed, and the appellant's conviction and sentence were upheld. The court confirmed the trial judge's directions to the jury and found no error that would warrant a re-trial. The court also found that the sentence imposed was not manifestly excessive and was appropriate in the circumstances of the case.

Orders

Orders of the court

At [187]-[190].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Danielle Pana (a pseudonym) [2021] NSWDC 798

Most Recent Citation

R v Smith [2025] NSWDC 374

Cases citing this decision · 1 of 1 shown

R v Smith
[2025] NSWDC 374 Para 105

…In R v Danielle Pana (a pseudonym) [2021] NSWDC 798 an offender was sentenced for offences of grooming a child for unlawful sexual activity, using a child under 14 to produce child abuse material, sexually touching a child under 10, disseminating child abuse material, and sexual intercourse with a child under 10. T…

View all 1 citing cases →

Cases cited in this decision · 20 of 20 shown

Director of Public Prosecutions v Sloan (a pseudonym)
[2021] VCC 209 Para 185

…referred in NSW against the present offender. The proceedings against Mr Sloan are reported pursuant to a pseudonym: DPP v Robert Sloan (a pseudonym) [2021] VCC 209.…
R v Holder
[2019] SASCFC 73 Para 208

…minal conduct. I remind myself of the description of the principle of totality by the then Chief Justice Sir Lawrence Street in R v Holder & Johnston (1983) 3 NSWLR 245 where his Honour said, at 260:…
R v JS
[2018] NSWDC 342 Para 188

…I have also had regard to the approach taken to a broadly similar course of offending by Judge Mahony SC in the matter of R v JS [2018] NSWDC 342. The offending in that case included the use of a child under 14 to make child abuse material in which the mother of the victim had taken sexually provocative photographs…
Imbornone v R
[2017] NSWCCA 144 Para 135

…by the Crown. The court should exercise appropriate reservation in accepting its contents – see R v Qutami (2001) 127 A Crim R 369 ; R v Imbornone [2017] NSWCCA 144.…
R v Nelson
[2016] NSWCCA 130 Para 105

…ovide support to the presumptive position that the offending conduct towards each of them has caused significant harm – see Basten JA in R v Nelson [2016] NSWCCA 130. That substantial harm is in accord with the impact of offending of this nature.…
Leigh Brown v The Queen
[2014] NSWCCA 335 Para 121

…ment of drug usage. It is submitted on her behalf that her drug use in such circumstances ought not to be considered a personal choice: see R v Brown [2014] NSWCCA 335. Her descent into a substance abuse disorder and her vulnerability to disorders including a Borderline Personality Disorder require careful considera…
R v CMB
[2014] NSWCCA 5 Para 92

…rt has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009]…
SW v R
[2013] NSWCCA 255 Para 52

…f not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and ps…
Bugmy v The Queen
[2013] HCA 37 Para 130

…r involvement in the criminal conduct against her own children. I accept that this is relevant in an assessment of moral culpability; see R v Bugmy (2013) 249 CLR 571.…
Clarkson v The Queen
[2011] VSCA 157

…with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].”…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 121

…s including a Borderline Personality Disorder require careful consideration of the principles set out by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1. Her moral culpability may thereby be viewed as lessened to some degree.…
SAT v R
[2009] NSWCCA 172 Para 146

…the mother of each of the victims, the offences which the offender committed involved a very significant breach of trust on her part – see SAT v R [2009] NSWCCA 172 at [40] per Buddin J. In my view the circumstances of the present matter were a gross breach of that trust and the conduct of the offender towards her…
R v G
[2008] UKHL 37 Para 52

…CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexu…
Jah v R
[2006] NSWCCA 250 Para 132

…AGR was subsequently approved in R v JAH [2006] NSWCCA 250 where a history of child sexual abuse in that matter was “ of considerable significance ”. I should make it clear that the background of abuse does not excuse the subsequent criminal conduct. It does, however, place it in its proper context and recognises wh…
R v Gent
[2005] NSWCCA 370 Para 134

…drugs, has no prior convictions. Her apparent good character, with respect to offending of this type, however, is afforded less weight: see R v Gent [2005] NSWCCA 370.…
R v AJP
[2004] NSWCCA 434 Para 179

…The Court of Criminal Appeal in R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 dealt with an appeal by the Crown against the asserted manifest inadequacy of a charge relating to a single count of sexual intercourse with a child under 10 years contrary to s 66A of the Crimes Act 1900. The male offender was the un…
R v BJW
[2000] NSWCCA 60 Para 148

…That passage has been cited with approval in BJW v R [2000] NSWCCA 60 per Sheller JA (James and Dowd JJ agreeing) at [20] and is replicated in the Bench Book.…
R v Davis
[1999] NSWCCA 15 Para 180

…ion was drawn to the observations of the High Court in Ibbs v R (1987) 163 CLR 447 and subsequently to the decision of Wood CJ at CL in R v Davis [1999] NSWCCA 15, Simpson J acknowledged that penile/vaginal intercourse may have amounted to a more serious offence. Wood CJ at CL had referred to the fact in his Honour…
Ibbs v the Queen
[1987] HCA 46 Para 180

…r RA Hulme SC, as his Honour then was, on behalf of the respondent in which attention was drawn to the observations of the High Court in Ibbs v R (1987) 163 CLR 447 and subsequently to the decision of Wood CJ at CL in R v Davis [1999] NSWCCA 15, Simpson J acknowledged that penile/vaginal intercourse may have amounted…
[2009] 1 AC 92
[2009] 1 AC 92 Para 52

…A 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the "long term and serious harm, both physical and psychological, which premature sexual activity can…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention
Crimes Act 1900 (ACT)
1 mention (from Para 11)
Criminal Code Act 1995 (Cth)
1 mention

Medium Neutral Citation:	R v Danielle Pana (a pseudonym) [2021] NSWDC 798
Hearing dates:	12 August 2021
Date of orders:	19 October 2021
Decision date:	19 October 2021
Jurisdiction:	Criminal
Before:	Judge Sutherland SC
Decision:	At [187]-[190].
Catchwords:	CRIME — Child sex offences — Sexual intercourse with child <10 – Procuring or grooming child for unlawful sexual activity – Child abuse material — Production/Dissemination/Possession – female offender – offender the mother of the victims – Bugmy principle – aggregate sentence
Legislation Cited:	Commonwealth Criminal Code Act 1995 (Cth) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	BJW v R [2000] NSWCCA 60 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 DPP v Robert Sloan (a pseudonym) [2021] VCC 209 Ibbs v R (1987) 163 CLR 447 Minehan v R (2010) 201 A Crim R 243 R v AGR (NSWCCA, unreported, 24/7/1998) R v AJP [2004] NSWCCA 434; (2004) 150 A Crim R 575 R v AJP (2004) 150 A Crim R 575 R v Brown [2014] NSWCCA 335 R v Bugmy (2013) 249 CLR 571 R v Davis [1999] NSWCCA 15 R v Dent (NSWCCA unreported, 14 March 1991 R v Gavel (2014) 239 A Crim R 469 R v Gent [2005] NSWCCA 370 R v Holder & Johnston (1983) 3 NSWLR 245 R v Hudson (NSWCCA unreported, 30/7/1998) R v Imbornone [2017] NSWCCA 144 R v JAH [2006] NSWCCA 250 R v JS [2018] NSWDC 342 R v Nelson [2016] NSWCCA 130 R v O’Connell (unreported, NSW District Court 3 July 2020) R v Qutami (2001) 127 A Crim R 369 SAT v R [2009] NSWCCA 172
Texts Cited:	Bugmy Bar Book
Category:	Sentence
Parties:	Crown (Regina) Danielle Pana (a pseudonym) (Offender)
Representation:	Counsel: Ms K Marinos CP (Crown) Ms M Fernando (Offender) Solicitors: Solicitor for Public Prosecutions (Crown) Rep-Revive Criminal Lawyers (Offender)
File Number(s):	2020/00068739