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R v Howard

R v Howard

Case [2024] NSWDC 514 1 November 2024

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Howard [2024] NSWDC 514
Hearing dates: 28 October 2024
Date of orders: 1 November 2024
Decision date: 01 November 2024
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
(1) The Offender is convicted.
(2) The Offender is sentenced to imprisonment for a period of 2 years commencing 31 October 2024 and expiring 30 October 2025.
(3) Order, pursuant to s 20 of the Crimes Act 1914 (Cth), that the Offender is to be immediately released upon a Recognizance Release Order, in the amount of $1, without surety, for 2 years on the following conditions, which are found at para [59].

Catchwords:
CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity – Procuring or grooming child for unlawful sexual activity
SENTENCING – Subjective considerations on sentence – Whether ‘exceptional circumstances’, including cognitive impairment and mental health issues, exist pursuant to s 20(1)(b)(ii) of Crimes Act 1914 – Sentenced to term of imprisonment and immediate release of offender on recognizance release order

Legislation Cited:
Crimes Act 1914 (Cth) s 16A; s 17A; s 20(1)(b)(ii);
Criminal Code (Cth) s 474.26(1); s 474.29AA

Cases Cited:
BM v R [2019] NSWCCA 223
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
DS v R; DM v R [2022] NSWCCA 156
Lazarus v R [2023] NSWCCA 214
Markarian v The Queen (2005) 228 CLR 357
Moiler v R [2021] NSWCCA 73
R v Asplund [2010] NSWCCA 316
R v Bredal [2024] NSWCCA 75
R v Burdon; Ex parte Attorney-General Qld (2005) 153 A Crim R 104
R v Gajjar (2008) 192 A Crim R 76
R v Israil [2002] NSWCCA 255
R v Mueller [2015] NSWCCA 292
Tector v R [2008] NSWCCA 151
Tepania v R [2018] NSWCCA 247
Totaan v R (2022) 108 NSWLR 17

Category: Sentence
Parties: Commonwealth Director of Public Prosecutions (Crown)
Bruce Howard (Offender)
Representation:
Counsel:
T Dailly (Solicitor) (Crown)
E Renard (Counsel) (Offender)
Solicitors:
CDPP (Crown)
Ryan Payten Le (Offender)

File Number(s): 2023/186057
Publication restriction: Nil

JUDGMENT

Introduction

Bruce Howard ('the Offender') has pleaded guilty to, and is to be sentenced for the following offence:

Seq

Offence

Description

Maximum Penalty

as agreed by the parties

2

Section 474.26(1) of the Criminal Code (Cth)

Using a carriage service to procure a person under 16 years for sexual activity

Imprisonment for 15 years and/or 900 penalty units

The Offender was arrested on 9 June 2023 and granted conditional bail on the same day. One (1) day of pre-sentence custody will be taken into account.

General principles of sentencing for Commonwealth offences

Ultimately, the Court’s task is to impose a sentence "that is of a severity appropriate in all the circumstances of the offence", having considered and specifically taken into account the non-exhaustive list of matters in s 16A(2) of the Crimes Act 1914 (Cth) (“Crimes Act”) that are relevant and known to the Court.
Section 17A mandates that a Court must…

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 Howard

Details

AGLC: R v Howard [2024] NSWDC 514
Case: [2024] NSWDC 514
Decision Date: 01 November 2024

CaseChat Overview and Summary

The case before the court involved the offender, Howard, who was charged with using a carriage service to groom a person, which is a child sex offence. The Federal Court of Australia was tasked with determining the appropriate sentence for the offender, taking into account various subjective considerations, including the offender’s cognitive impairment and mental health issues. The court had to consider whether these circumstances were 'exceptional' within the meaning of section 20(1)(b)(ii) of the Crimes Act 1914. The offender's legal representatives argued for a lenient sentence, citing the exceptional circumstances as a mitigating factor.

In addressing the legal issues, the court considered the nature and circumstances of the offence, the offender's background, and the impact of the exceptional circumstances on the offender’s culpability and rehabilitation prospects. The court examined the offender's cognitive impairment and mental health issues in detail, assessing how these factors influenced the offender’s actions and potential for reform. The court also weighed the need for general deterrence and the protection of the community against the offender's personal circumstances.

The court determined that while the exceptional circumstances did mitigate the offender’s culpability to some extent, they did not warrant a departure from the normal principles of sentencing for such offences. The court concluded that a term of imprisonment was necessary to uphold the principle of general deterrence and to protect the community. However, given the specific conditions of the offender, the court decided to impose a sentence of two years, with the offender being immediately released on a Recognizance Release Order. This decision balanced the need for punishment with the offender’s personal circumstances and the likelihood of rehabilitation.

The final orders of the court included the conviction of the offender, a two-year imprisonment term starting on 31 October 2024 and ending on 30 October 2025, and the immediate release of the offender under a Recognizance Release Order, with specific conditions attached. These orders reflect the court’s consideration of both the gravity of the offence and the mitigating factors presented.

Orders

Orders of the court

(1) The Offender is convicted.

(2) The Offender is sentenced to imprisonment for a period of 2 years commencing 31 October 2024 and expiring 30 October 2025.

(3) Order, pursuant to s 20 of the Crimes Act 1914 (Cth), that the Offender is to be immediately released upon a Recognizance Release Order, in the amount of $1, without surety, for 2 years on the following conditions, which are found at para [59].

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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Citations

AGLC Citation

R v Howard [2024] NSWDC 514

Most Recent Citation

R v Brooks [2025] NSWDC 354

Cases citing this decision · 1 of 1 shown

R v Brooks
[2025] NSWDC 354 Para 102

…In R v Howard [2024] NSWDC 514, the offender pleaded Guilty to one offence of using a carriage service to procure a person under the age of 16 for sexual activity. The offender in that matter had similarly communicated with an assumed online identity purporting to be a 13-year-old girl. The communications had taken…

View all 1 citing cases →

Cases cited in this decision · 13 of 13 shown

R v Bredal
[2024] NSWCCA 75 Para 48

…In R v Bredal [2024] NSWCCA 75, Dhanji J considered the meaning of "exceptional circumstances" within s. 20(1)(b)(iii) and, noting it was not defined, he said:…
Lazarus v The King
[2023] NSWCCA 214 Para 4

…Beech-Jones CJ at CL in Lazarus v R [2023] NSWCCA 214, at [4], explained that the significance of general deterrence was not overturned by the decision in Totaan v R (2022) 108 NSWLR 17. His Honour said that the instinctive synthesis process in Markarian v The Queen (2005) 228 CLR 357 is not something that requires…
DS v R; DM v R
[2022] NSWCCA 156 Para 39

…on in making that assessment: Tepania v R [2018] NSWCCA 247 at [71], [112], [121] - [123]; BM v R [2019] NSWCCA 223 at [15]. See also DS v R ; DM v R [2022] NSWCCA 156.…
Totaan v The the Queen
[2022] NSWCCA 75 Para 4

…t CL in Lazarus v R [2023] NSWCCA 214, at [4], explained that the significance of general deterrence was not overturned by the decision in Totaan v R (2022) 108 NSWLR 17. His Honour said that the instinctive synthesis process in Markarian v The Queen (2005) 228 CLR 357 is not something that requires equal weight be at…
Moiler v R
[2021] NSWCCA 73 Para 33

…As was emphasised in Moiler v R [2021] NSWCCA 73 at [59] (per Button J):…
BM v R
[2019] NSWCCA 223 Para 39

…ven that moral culpability is a relevant consideration in making that assessment: Tepania v R [2018] NSWCCA 247 at [71], [112], [121] - [123]; BM v R [2019] NSWCCA 223 at [15]. See also DS v R ; DM v R [2022] NSWCCA 156.…
Tepania v The Queen
[2018] NSWCCA 247 Para 39

…n assessing the objective seriousness of the offence, given that moral culpability is a relevant consideration in making that assessment: Tepania v R [2018] NSWCCA 247 at [71], [112], [121] - [123]; BM v R [2019] NSWCCA 223 at [15]. See also DS v R ; DM v R [2022] NSWCCA 156.…
R v Mueller
[2015] NSWCCA 292 Para 35

…contributed to his offending: see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; R v Israil [2002] NSWCCA 255; and R v Mueller [2015] NSWCCA 292 (“ Mueller ”).…
R v Asplund
[2010] NSWCCA 316 Para 34

…As I have said, general deterrence usually plays a significant role in the sentencing process for offences of this kind, see R v Asplund [2010] NSWCCA 316 McClellan CJ at CL [50]:…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 35

…suffered from a persistent depressive disorder, which I do think contributed to his offending: see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; R v Israil [2002] NSWCCA 255; and R v Mueller [2015] NSWCCA 292 (“ Mueller ”).…
Tector v R
[2008] NSWCCA 151 Para 13

…rying degrees of seriousness with respect to the range of proposed sexual activity between sender and recipient for offences of this kind: Tector v R [2008] NSWCCA 151, Hall J at [95].…
Markarian v The Queen
[2005] HCA 25 Para 4

…was not overturned by the decision in Totaan v R (2022) 108 NSWLR 17. His Honour said that the instinctive synthesis process in Markarian v The Queen (2005) 228 CLR 357 is not something that requires equal weight be attached to all sentencing factors and is not authority for the proposition that appellate courts cann…
R v Israil
[2002] NSWCCA 255 Para 35

…ressive disorder, which I do think contributed to his offending: see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; R v Israil [2002] NSWCCA 255; and R v Mueller [2015] NSWCCA 292 (“ Mueller ”).…

Legislation cited in this decision · 1

Crimes Act 1914 (Cth)
16A 2 mentions (from Para 3)

Medium Neutral Citation:	R v Howard [2024] NSWDC 514
Hearing dates:	28 October 2024
Date of orders:	1 November 2024
Decision date:	01 November 2024
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	(1) The Offender is convicted. (2) The Offender is sentenced to imprisonment for a period of 2 years commencing 31 October 2024 and expiring 30 October 2025. (3) Order, pursuant to s 20 of the Crimes Act 1914 (Cth), that the Offender is to be immediately released upon a Recognizance Release Order, in the amount of $1, without surety, for 2 years on the following conditions, which are found at para [59].
Catchwords:	CRIME — Child sex offences — Using carriage service to groom person <16 years for sexual activity – Procuring or grooming child for unlawful sexual activity SENTENCING – Subjective considerations on sentence – Whether ‘exceptional circumstances’, including cognitive impairment and mental health issues, exist pursuant to s 20(1)(b)(ii) of Crimes Act 1914 – Sentenced to term of imprisonment and immediate release of offender on recognizance release order
Legislation Cited:	Crimes Act 1914 (Cth) s 16A; s 17A; s 20(1)(b)(ii); Criminal Code (Cth) s 474.26(1); s 474.29AA
Cases Cited:	BM v R [2019] NSWCCA 223 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 DS v R; DM v R [2022] NSWCCA 156 Lazarus v R [2023] NSWCCA 214 Markarian v The Queen (2005) 228 CLR 357 Moiler v R [2021] NSWCCA 73 R v Asplund [2010] NSWCCA 316 R v Bredal [2024] NSWCCA 75 R v Burdon; Ex parte Attorney-General Qld (2005) 153 A Crim R 104 R v Gajjar (2008) 192 A Crim R 76 R v Israil [2002] NSWCCA 255 R v Mueller [2015] NSWCCA 292 Tector v R [2008] NSWCCA 151 Tepania v R [2018] NSWCCA 247 Totaan v R (2022) 108 NSWLR 17
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions (Crown) Bruce Howard (Offender)
Representation:	Counsel: T Dailly (Solicitor) (Crown) E Renard (Counsel) (Offender) Solicitors: CDPP (Crown) Ryan Payten Le (Offender)
File Number(s):	2023/186057
Publication restriction:	Nil