R v Davis - [2023] NSWDC 651

District Court

New South Wales

Medium Neutral Citation: R v Davis [2023] NSWDC 651
Hearing dates: 25 September; 6 October 2023
Date of orders: 12, 13 December 2023
Decision date: 12 December 2023
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
1. Offender is convicted.
2. Offender sentenced to an aggregate term of imprisonment of 20 months.
3. Offender released immediately on a recognizance release order for a period of 2 years in the sum of $500 without surety and with conditions.

Catchwords:
CRIME – sentence – sequence 3 – use carriage service to procure person under 16 years – s474.27AA(1) Criminal Code Act1995 – sequence 4 – use carriage service to transmit indecent communication to person under 16 years – s474.27A(1) Criminal Code Act 1995
OFFENCE – Police Child Exploitation Internet Unit – conducting covert online duties – social network website chatiw.com – used assumed online identity – 40 year old woman who purported to have nine year old daughter – offender initiated conversation with CEIU16 – sequence 3 – six separate conversations between 22 June and 27 July 2022 – sequence 4 – offender sending picture holding his penis to fictitious child
OBJECTIVE SERIOUSNESS – no real child involved – not a mitigating factor – decreases overall objective criminality but does not reduce the offender’s moral culpability – immediate term of imprisonment ordinarily warranted in absence of exceptional circumstances – Court must take into account age and maturity of person – construction of s474.29AA(1)(b) – not accepted to operate as mandatory aggravating factor on sentence where a fictitious child – sequence 3 – middle range – sequence 4 – less serious
SUBJECTIVE CASE – aged 47 – stable de facto relationship with partner for 26 years – two daughters aged 20 and 13 – prior good character – post-arrest diagnosis of autism spectrum disorder – pre-existing mental illness – NDIS plan with disability support – offending was directed to his own sexual gratification – autism spectrum disorder played some part – accept some involvement was a function of social isolation and loneliness – ongoing interest in similar matters for five years – undertaken treatment following arrest – risk of reoffending relatively low – genuine remorse and contrition
DELAY – 9 months between charging and committal for sentence – committal inevitable – unnecessary mentions in Local Court adding to extraordinary workload – no substantive difference between original charges and charges for sentence – system fault – delay in District Court exacerbated by wildly inaccurate estimates of sentence – flow on effect to administration of Court and adverse effect on others awaiting sentence
SENTENCE – general and specific deterrence – 25% discount – utilitarian value of guilty plea – partial accumulation – totality – aggregate sentence of imprisonment – rejected accused submission that s474.27AA offence open to be served by way of ICO because not specifically referred to in s 67(2)(e) Crimes (Sentencing Procedure) Act 1999 – exceptional case – aggregate term of imprisonment with immediate recognizance release order

Legislation Cited:

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 Davis

Details

AGLC: R v Davis [2023] NSWDC 651
Case: [2023] NSWDC 651
Decision Date: 12 December 2023

CaseChat Overview and Summary

In the case before the court, the defendant, Davis, was convicted of using a carriage service to procure a person under the age of 16, and transmitting an indecent communication to a person under 16, as per sections 474.27AA(1) and 474.27A(1) of the Criminal Code Act 1995. The charges stemmed from Davis's actions while operating under a false online identity on the social network website chatiw.com, where he engaged in multiple conversations with a member of the Police Child Exploitation Internet Unit, posing as the parent of a nine-year-old girl. During these conversations, Davis sent explicit images to the undercover officer.

The court had to determine the appropriate sentence, considering both the objective seriousness of the crimes and the subjective circumstances of the offender. The court evaluated the nature of the offences, the absence of a real child involved, and the offender's personal circumstances, including his age, maturity, prior good character, and diagnosed mental health conditions. The court also considered the delay in the proceedings and the impact on the court system.

The court found the crimes to be objectively serious but noted that the offender's lack of real-world impact on a child lessened the overall criminality. However, the court emphasised that this did not reduce the offender's moral culpability. Given Davis's age, stable personal circumstances, and genuine remorse, the court decided on a sentence that balanced general and specific deterrence with the offender's personal mitigating factors. The court rejected the argument that the offence could be served by an Intensive Corrections Order, determining an immediate term of imprisonment was necessary.

The court ordered that Davis be sentenced to an aggregate term of imprisonment of 20 months, with immediate release on a recognizance release order for a period of 2 years, subject to certain conditions and a financial penalty of $500 without surety.

Orders

Orders of the court

1. Offender is convicted.

2. Offender sentenced to an aggregate term of imprisonment of 20 months.

3. Offender released immediately on a recognizance release order for a period of 2 years in the sum of $500 without surety and with conditions.

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 Davis [2023] NSWDC 651
Hearing dates:	25 September; 6 October 2023
Date of orders:	12, 13 December 2023
Decision date:	12 December 2023
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	1. Offender is convicted. 2. Offender sentenced to an aggregate term of imprisonment of 20 months. 3. Offender released immediately on a recognizance release order for a period of 2 years in the sum of $500 without surety and with conditions.
Catchwords:	CRIME – sentence – sequence 3 – use carriage service to procure person under 16 years – s474.27AA(1) Criminal Code Act1995 – sequence 4 – use carriage service to transmit indecent communication to person under 16 years – s474.27A(1) Criminal Code Act 1995 OFFENCE – Police Child Exploitation Internet Unit – conducting covert online duties – social network website chatiw.com – used assumed online identity – 40 year old woman who purported to have nine year old daughter – offender initiated conversation with CEIU16 – sequence 3 – six separate conversations between 22 June and 27 July 2022 – sequence 4 – offender sending picture holding his penis to fictitious child OBJECTIVE SERIOUSNESS – no real child involved – not a mitigating factor – decreases overall objective criminality but does not reduce the offender’s moral culpability – immediate term of imprisonment ordinarily warranted in absence of exceptional circumstances – Court must take into account age and maturity of person – construction of s474.29AA(1)(b) – not accepted to operate as mandatory aggravating factor on sentence where a fictitious child – sequence 3 – middle range – sequence 4 – less serious SUBJECTIVE CASE – aged 47 – stable de facto relationship with partner for 26 years – two daughters aged 20 and 13 – prior good character – post-arrest diagnosis of autism spectrum disorder – pre-existing mental illness – NDIS plan with disability support – offending was directed to his own sexual gratification – autism spectrum disorder played some part – accept some involvement was a function of social isolation and loneliness – ongoing interest in similar matters for five years – undertaken treatment following arrest – risk of reoffending relatively low – genuine remorse and contrition DELAY – 9 months between charging and committal for sentence – committal inevitable – unnecessary mentions in Local Court adding to extraordinary workload – no substantive difference between original charges and charges for sentence – system fault – delay in District Court exacerbated by wildly inaccurate estimates of sentence – flow on effect to administration of Court and adverse effect on others awaiting sentence SENTENCE – general and specific deterrence – 25% discount – utilitarian value of guilty plea – partial accumulation – totality – aggregate sentence of imprisonment – rejected accused submission that s474.27AA offence open to be served by way of ICO because not specifically referred to in s 67(2)(e) Crimes (Sentencing Procedure) Act 1999 – exceptional case – aggregate term of imprisonment with immediate recognizance release order
Legislation Cited: