R v Darke

[2021] NSWDC 377

District Court

New South Wales

Medium Neutral Citation:

R v Darke [2021] NSWDC 377

Hearing dates:

12 October 2020; 27 November 2020, 11 December 2020

Decision date:

15 February 2021

Jurisdiction:

Criminal

Before:

M Adams ADCJ

Decision:

The offender is sentenced to a period of imprisonment for a period of 3 years, to be released after serving 2 years.

The Offender would therefore be released after serving 2 years on a recognisance pursuant to s.20(1)(b) of the Crimes Act, subject to the following conditions:

1. An amount of security of $1, without sureties; and

2. The offender is to be of good behaviour for a period of 3 years upon his release

Catchwords:

CRIMINAL LAW- Sentence – 16BA schedule – Attempt to procure a child to engage in sexual activity with another person outside Australia – Use carriage service to solicit and transmit child pornography material – Child Internet Exploitation Unit – Persistent Neurocognitive Disorder [Acquired Brain Injury] – Persistent Depressive Disorder – Alcohol Use Disorder – Personality Disorder – Offender kept in strict protection

Legislation Cited:

Criminal Code (Cth)

Criminal Code of Canada

Crimes Act 1914 (Cth),

Category:

Sentence

Parties:

The Crown
Jason David Darke

Representation:

Counsel:
W. Fitzsimmons – The Crown
N. Mikhaiel – The offender

Solicitors:
Director of Public Prosecutions (Cth)

File Number(s):

2018/42703

Publication restriction:

There is to be no publication of the name of the complainant or any material which may tend to identify the complainant

Judgment

Introduction

1. The offender is before the Court for sentence for the offence, in substance, of attempting to procure a child to engage in sexual activity with another person outside Australia, contrary to s 272.14(1) of the Criminal Code (Cth), for which the penalty is a maximum term of 15 years imprisonment. He seeks to have taken into account (by way of a Schedule under s 16BA) two other (connected) offences, of using a carriage service to solicit and transmit child pornography material, contrary to s 474.19(1)(a)(iii) and (iv), for each of which the penalty is also a maximum term of 15 years. These offences occurred between 5 August 2016 and 11 September 2016.

2. The offender was arrested on 7 February 2018 and granted bail on 10 September 2019, but he remained in custody until 14 October 2019. On 19 February 2020, bail was revoked. He has been in custody since then.

3. The offender was committed for trial on 26 June 2019 and his trial listed to commence on 10 February 2020 in the District Court. A plea of guilty was entered to the index offence on 11 February 2020. Earlier negotiations had taken place between prosecution and defence in which the offender had agreed to plead guilty to the two Schedule offences in full satisfaction of the prosecution. This was rejected. It is submitted, in substance, that there was a real legal issue to be determined in relation to the index offence, namely whether the conduct engaged in needed to be contact directly with the child as distinct…