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R v Dregmans

R v Dregmans

Case [2022] NSWDC 55 11 March 2022

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District Court

New South Wales

Medium Neutral Citation: R v Dregmans [2022] NSWDC 55
Hearing dates: 4 March 2022
Date of orders: 11 March 2022
Decision date: 11 March 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 115 - 118

Catchwords:
SENTENCING – federal offence – possession of child abuse material – objective gravity – consideration of competing contentions as to the circumstances in which the offender obtained the material and the nature and extent of his interest in acquiring it – whether no sentence other than imprisonment appropriate – whether appropriate to make recognisance release order – whether, for the subject offence, the term of imprisonment may be served by order for intensive correction

Legislation Cited:
Crimes Act 1900 (NSW) s 91H
Crimes Act1914 (Cth) ss 16A, 17A, 20, 23ZD
Crimes (Sentencing Procedure) Act 1999 (NSW) s 67
Criminal Code Act 1995 (Cth) s 474.22A

Cases Cited:
Boulton v R (2014) 46 VR 308
Burton v R [2020] NSWCCA 127
Hili v R; Jones v R (2010) 242 CLR 520
R v De Leeuw [2015] NSWCCA 183
R v Hutchinson [2018] NSWCCA 152
R v Porte [2015] NSWCCA 174
R v Poynder [2007] NSWCCA 157
R v Wran [2019] NSWSC 1015
The Queen vOlbrich (1999) 199 CLR 270

Texts Cited:
Nil

Category: Sentence
Parties: Commonwealth Director of Public Prosecutions
Mr S Dregmans (offender)
Representation:
Counsel:
Mr R El-Choufani for the offender
Solicitors:
Mr J Fennel for the Commonwealth
Hugo Law Group for the offender

File Number(s): 2021/00075656
Publication restriction: Nil

sentencing remarks

Mr Shaun Daniel Dregmans, the offender, is to be sentenced following a plea of guilty to the offence that between 12 January 2021 and 17 March 2021, at Willoughby, he possessed or controlled child abuse material and that he used a carriage service to obtain or access that material, contrary to s 474.22A(1) of the Criminal Code.
This offence carries a maximum penalty of 15 years’ imprisonment.
The appropriate sentencing regime is Part 1B of the Crimes Act1914 (Cth).
The parties are agreed as to the following facts.

The nature and circumstances of the offence (s 16A(2)(a))

On 17 March 2021, Australian Federal Police attended the offender’s residence in Willoughby to execute a search warrant. The offender was present during the execution of that warrant and was warned of his rights. During the search, police located a Samsung Galaxy S8 mobile phone device. The offender provided the password.
During the execution of the warrant, he told police that he had met a person named ‘Ohrin’ on ‘Grindr’ and Ohrin had sent him a video depicting what appeared to be an underage boy giving a blowjob.
In their preliminary review of the phone, police discovered a WhatsApp conversation between the offender and the user Ohrin containing child abuse material. According to its internal Interpol Baseline Categorisation System, police designated the child abuse material as falling within two discrete categories consistent with the definition of child abuse material under the Crimes Act 1900 (NSW):…

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 Dregmans

Details

AGLC: R v Dregmans [2022] NSWDC 55
Case: [2022] NSWDC 55
Decision Date: 11 March 2022

CaseChat Overview and Summary

The defendant, Dregmans, was found guilty of possessing child abuse material, a federal offence, and the case was before the court to determine his sentence. The legal issues included the objective gravity of the offence, the appropriate circumstances for obtaining a recognisance release order, and whether imprisonment was the only suitable sentence. Additionally, the court considered whether the term of imprisonment could be served by an order for intensive correction.

The court examined the objective gravity of the offence, taking into account the nature of the material and the potential harm to the community. It also weighed the arguments regarding the circumstances under which Dregmans obtained the material and the extent of his interest in acquiring it. The court concluded that imprisonment was necessary to adequately reflect the seriousness of the offence, deter Dregmans and others, and to uphold community standards. Furthermore, the court found that a recognisance release order was inappropriate due to the gravity of the offence and the need for a custodial sentence. Finally, the court determined that the term of imprisonment could not be served by an order for intensive correction given the nature of the offence.

Dregmans was sentenced to imprisonment for a term determined by the court, reflecting the gravity of his offence and the need for general deterrence. The court held that imprisonment was necessary to uphold community standards and to reflect the seriousness of the offence. It was also determined that a recognisance release order was not appropriate given the circumstances. Finally, it was held that the term of imprisonment could not be served by an order for intensive correction due to the nature of the offence.

The court ordered that Dregmans be imprisoned for a term determined by the court, and that this term could not be served by an order for intensive correction. The court also ordered that a recognisance release order not be made.

Orders

Orders of the court

See paragraphs 115 - 118

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.

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Citations

R v Dregmans [2022] NSWDC 55

Most Recent Citation

R v Middleton [2023] ACTSC 50

Cases Citing This Decision

R v Jones [2023] NSWDC 657
Citation 1 (Para 99)

…I have also reviewed the decision of Judge Abadee in R v Dregmans [2022] NSWDC 55 where his Honour found ‘exceptional circumstances’ when sentencing the offender for a single offence of possess or control child abuse material contrary to s 474.22A Cth Criminal Code. From a reading of Dregmans it appears that the C…
R v Dunnicliff [2023] ACTSC 350
Citation 2

…auge J) R (Commonwealth) v Nafarette [2022] NSWDC 225 R v Coker [2021] NSWDC 805 R v Dean [2023] ACTSC 98 R v De Leeuw [2015] NSWCCA 183 R v Dregmans [2022] NSWDC 55 R v Elson [2020] ACTSC 264 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Horner [2023] ACTSC 23 R v Israil [2002] NSWCCA 255 R v Khqustiaan [2022]…
R v Bredal [2023] NSWDC 656
Citation 3 (Para 105)

…I have also reviewed the decision of Judge Abadee in R v Dregmans [2022] NSWDC 55 where his Honour found ‘exceptional circumstances’ when sentencing the offender for a single offence of possess or control child abuse material contrary to s 474.22A Cth Criminal Code. From a reading of Dregmans it appears that the C…
R v Middleton [2023] ACTSC 50
Citation 4

…ge J, 29 October 2012) R v Arnould [2020] ACTSC 345 R v Burch [2020] ACTSC 192 R v Coker [2021] NSWDC 805 R v De Leeuw [2015] NSWCCA 183 R v Dregmans [2022] NSWDC 55 R v Duncan [1998] 3 VR 208 R v Elson [2020] ACTSC 264 R v Ferguson [2015] ACTSC 363 R v GAW [2015] QCA 166 R v Harrington [2016] ACTCA 10; 11 ACTLR 2…
R (Commonwealth) v Nafarette [2022] NSWDC 225
Citation 5 (Para 79)

…In R v Dregmans [2022] NSWDC 55, Judge Abadee found exceptional circumstances when sentencing an offender for a single offence of possess or control child abuse material under s 474.22A of the Commonwealth’s Code. It appears, from a reading of the judgment, that the Crown, in effect, accepted that it was open to h…

See all citing cases →

Cases Cited

R v Pedersen [2021] NSWDC 535
Citation 1 (Para 100)

…Counsel for the offender referred the Court to the sentencing remarks of Berman SC ADCJ in R v Pederson [2021] NSWDC 535 where, at [36]-[39], his Honour took what might be described as a global approach, weighing a combination of considerations such as the gravity of the offending, and the offender’s rehabilitation…
Burton v R [2020] NSWCCA 127
Citation 2 (Para 94)

…cting each offender. Perhaps the closest resemblance in the cases, only in terms of the factor of objective seriousness, was the case of Burton v R [2020] NSWCCA 127, although as Counsel for the offender submitted, the criminality of the offender in that case, involving as it did the creation and transmission of the…
KT v Google LLC [2019] NSWSC 1015
Citation 3 (Para 84)

…am not convinced that its relevance extends quite as far as the offender submits. Nevertheless, a prominent example cited by the parties was R v Wran [2019] NSWSC 1015.…
R v Hutchinson [2018] NSWCCA 152
Citation 4 (Para 44)

…In R v Hutchinson [2018] NSWCCA 152 RA Hulme J (Meagher JA and Button J agreeing) set out a non-exhaustive list of factors when assessing the objective gravity of the subject offending, which the Crown and the offender both addressed. Applying those factors, the offender submitted that:…
Fedele v R [2015] NSWCCA 286
Citation 5 (Para 95)

…he comparable cases set out in Annexure A to the offender’s written submissions. The case that bears some resemblance to the facts in this case are Fedele v The Queen (2015) 257 A Crim R 78. In that case even where the offender had more images of child pornography stored, over a longer period than this offender, his sentenc…
R v De Leeuw [2015] NSWCCA 183
Citation 6 (Para 50)

…onsideration or, put another way, is the paramount consideration (including, without limitation, R v Porte [2015] NSWCCA 174 at [70] and R v De Leeuw [2015] NSWCCA 183 at [72c]). There is a multitude of reasons for that, including, that child pornography offending:…
R v Porte [2015] NSWCCA 174
Citation 7 (Para 50)

…eral deterrence is the primary sentencing consideration or, put another way, is the paramount consideration (including, without limitation, R v Porte [2015] NSWCCA 174 at [70] and R v De Leeuw [2015] NSWCCA 183 at [72c]). There is a multitude of reasons for that, including, that child pornography offending:…
Hili v The Queen [2010] HCA 45
Citation 8 (Para 93)

…or a subject offence across the country even if there is no requirement for numerical equivalence in the sentence to be imposed ( Hili v R; Jones v R (2010) 242 CLR 520 at [48]-[49]).…
R v Poynder [2007] NSWCCA 157
Citation 9 (Para 52)

…and provides a yardstick to a sentence, albeit that the appropriate sentence overall must take into account all other relevant matters ( R v Poynder [2007] NSWCCA 157 at [52]).…
R v Olbrich [1999] HCA 54
Citation 10 (Para 31)

…t are “known to the Court” (s 16A(2)(a)). In my view, consistent with that provision, and basic principle in sentencing law ( The Queen v Olbrich (1999) 199 CLR 270) if the offender’s explanation of his state of mind was accepted, it could mitigate the seriousness of the offending (and act to his benefit in other rel…
The Queen v Olbrich [1999] HCA 5418
Citation 11 (Para 31)

…e basis of facts that are “known to the Court” (s 16A(2)(a)). In my view, consistent with that provision, and basic principle in sentencing law ( The Queen v Olbrich (1999) 199 CLR 270) if the offender’s explanation of his state of mind was accepted, it could mitigate the seriousness of the offending (and act to his benefit…
Boulton v R [2014] VSCA 34249
Citation 12 (Para 73)

…bilitation should result in a disproportionately more severe, or more lenient, sentence set against all other relevant considerations ( Boulton v R (2014) 46 VR 308 at [72]).…

Legislation Cited

Crimes Act 1914 (Cth) 16A, 17A, 20, 23ZD
5 mentions (from Para 3)
Crimes (Sentencing Procedure) Act 1999 (NSW) 67
3 mentions (from Para 104)
Crimes Act 1900 (ACT) 91H
2 mentions (from Para 7)
Criminal Code Act 1995 (Cth)
1 mention

Medium Neutral Citation:	R v Dregmans [2022] NSWDC 55
Hearing dates:	4 March 2022
Date of orders:	11 March 2022
Decision date:	11 March 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 115 - 118
Catchwords:	SENTENCING – federal offence – possession of child abuse material – objective gravity – consideration of competing contentions as to the circumstances in which the offender obtained the material and the nature and extent of his interest in acquiring it – whether no sentence other than imprisonment appropriate – whether appropriate to make recognisance release order – whether, for the subject offence, the term of imprisonment may be served by order for intensive correction
Legislation Cited:	Crimes Act 1900 (NSW) s 91H Crimes Act1914 (Cth) ss 16A, 17A, 20, 23ZD Crimes (Sentencing Procedure) Act 1999 (NSW) s 67 Criminal Code Act 1995 (Cth) s 474.22A
Cases Cited:	Boulton v R (2014) 46 VR 308 Burton v R [2020] NSWCCA 127 Hili v R; Jones v R (2010) 242 CLR 520 R v De Leeuw [2015] NSWCCA 183 R v Hutchinson [2018] NSWCCA 152 R v Porte [2015] NSWCCA 174 R v Poynder [2007] NSWCCA 157 R v Wran [2019] NSWSC 1015 The Queen vOlbrich (1999) 199 CLR 270
Texts Cited:	Nil
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions Mr S Dregmans (offender)
Representation:	Counsel: Mr R El-Choufani for the offender Solicitors: Mr J Fennel for the Commonwealth Hugo Law Group for the offender
File Number(s):	2021/00075656
Publication restriction:	Nil