R v LL

Case •

[2022] NSWDC 208

•

14 June 2022

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v LL [2022] NSWDC 208
Hearing dates: 29 April 2022
Date of orders: 14 June 2022
Decision date: 14 June 2022
Jurisdiction:Criminal
Before: Lerve DCJ
Decision:

Sentenced - see [121]-[126]

Catchwords:

Sentence – Commonwealth offending – female offender – male victim – procuring – numerous text messages – general deterrence – hardship to third parties

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes Act, 1900 (NSW)

Crimes (Sentencing Procedure) Act, 1999

Criminal Code 1995 (Cth)

Cases Cited:

Adamson v R [2015] VSCA 194

Barbaro & Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2

Brown v R [2014] NSWCCA 215

Clarkson v The Queen; E J A v The Queen (2011) 32 VR 361; [2011] VSCA 157

Dinsdale v The Queen (2000) 202 CLR 321

DPP (Cth) v Beattie [2017] NSWCCA 301

DPP (Cth) v Halbisch [2021] NSWDC 306

Filippouv The Queen (2015) 256 CLR 47; [2015] HCA 29

Gifford v R [2016] NSWCCA 302

Hili& Jones vTheQueen [2010] HCA 45

Karoutv R [2019] NSWCCA 253

Karout v The Queen [2020] HCASL 56

Martin v R [2014] NSWCCA 124

Mbelev R [2021] NSWCCA 182

R vAsplund [2010] NSWCCA 316

R v DeLeeuw [2015] NSWCCA 183

R v Delzotto [2022] NSWCCA 117

R v Fuller [2010] NSWCCA 192

R vGajjar (2008) 192 A Crim R 76

R vGajjar (2008) 192 A Crim R 76

R vKebriti [2019] VSCA 275

R vPoynder (2007) 171 A Crim R 544

R v Storey [1998] 1 VR 359

R vZamagias [2002] NSWCCA 17

R vTuala [2015] NSWCCA 8

The Queen vOlbrich (1999) 199 CLR 270; [1999] HCA 54

Toller v R [2021] NSWCCA 204

Totaan v R [2022] NSWCCA 75

Valentine v R [2020] NSWCCA 116

Category:Sentence
Parties: Regina
LL (a pseudonym)
Representation:

Counsel:
Ms K Curry, for the Crown
Mr C Heazelwood, for the Offender

Solicitors:
Ms S Simmons, Office of Director of Public Prosecutions (Cwth)
Mr G Reynolds, Farrell Lusher Solicitors
File Number(s): 2020/93490
Publication restriction: No publication of the name of the complainant or anything that would tend to identify them. This extends to the name of the Offender.

REMARKS ON SENTENCE

  1. On 29 November 2021 the offender appeared for her trial at the Wagga Wagga District Court and an indictment in the following terms was presented:

  1. Between 28 December 2019 and 6 January 2020 at [R] in the State of New South Wales being a person over the age of 18 years of age used a carriage service to transmit a communication to the recipient, AG, being someone who was under 16 years of age with the intention of procuring the recipient to engage in sexual activity with herself contrary to s 474.26(1) of the Criminal Code 1995 (Cth); and further

  2. Between 4 January 2020 and 5 January 2020 at [L] in the State of New South Wales used a carriage service to transmit material, the material being child abuse material, contrary to s 474.22(1) of the Criminal Code 1995 (Cth); and further

  3. On 31 December 2019 at [W] in the State of New South Wales, did intentionally sexually touch AG who is above the age of ten years and under sixteen years, contrary to s 66DB(a) of the Crimes Act, 1900 (NSW).

  1. The offender pleaded not guilty to counts 1 and 3 and guilty to count 2. On 7 Dec 2021 the jury returned verdicts of guilty to all three counts.

  2. The maximum penalty provided for counts 1 and 2 is 15 years imprisonment. The maximum penalty provided for count 3 is 10 years imprisonment. There is no standard non-parole period specified in respect of count 3.

  3. So far as the plea of guilty entered to count 2, section 16A(2)(g) of the Crimes Act 1914 (Cth) provides:

“[I]f the person has pleaded guilty to the charge in respect of the offence:

(i) that fact; and

(ii) the timing of the plea; and

(iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence;”

  1. The plea of guilty was entered on the day of the trial, although it would seem that the prosecution had been made aware that the plea would be entered. Despite the plea of guilty being entered it was still necessary for the jury to return a verdict in respect of that count. Evidence was placed before the jury in respect of that count. In those circumstances I assess the value of the plea including the utilitarian value of the plea as a numerical discount of 5%. I understood that this is essentially in accordance with the submissions by both parties.

Facts – count 1

  1. As the matter went to trial it is for me to determine the facts on which the offender is to be sentenced. Gleeson CJ, Gaudron, Hayne & Callinan JJ in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] said:

“As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge

‘may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.’"

R v Storey is reported at [1998] 1 VR 359.

  1. In the more recent decision of Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, French CJ, Bell, Keane & Nettle JJ said at [64]:

“But, as was established in R v Olbrich, a sentencing judge may not take facts into account in a way that is adverse to an offender unless those facts have been established beyond reasonable doubt and, contrastingly, the offender bears the burden of proving on the balance of probabilities matters which are submitted in his or her favour. Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known. As was stated by the majority in Olbrich:

‘[W]e reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt. The incongruities that would result if this submission were accepted are well illustrated by the present case. The respondent swore that he was a courier but the judge disbelieved him. To require the judge to sentence the respondent on the basis that he was a courier is incongruous.’"

  1. The Commonwealth in very comprehensive written submissions sets out the findings of fact sought by the Commonwealth. Essentially, I agree with what is submitted by the Commonwealth as to the facts. However, I do not agree with the submissions made by the Commonwealth as to the seriousness of the matters.

  2. The offender was 49 years of age at the time of the offence and the victim was 15. The victim’s mother gave evidence at the trial that the victim suffered from ADHD. The offender knew the victim and his family as they all resided in a small community in the southern New South Wales. The offender had taken the victim to sporting and other activities together with her daughters. The victim and one of the offender’s daughters were in a boyfriend/girlfriend relationship for some time in 2019. After that relationship ceased the offender remained in touch with the victim.

  3. The offender and victim spoke to each other on the phone on several occasions between 19 November 2019 and 29 December 2019. Between 29 December 2019 and 6 January 2020 the victim and offender exchanged 5,870 messages on Facebook Messenger. Between 29 December 2019 and 2 January 2020 the victim and offender exchanged 738 SMS messages excluding voice calls. In some of those messages they discuss deleting their messages.

  4. Going specifically to count 1, between 28 December 2019 and 6 January 2020 the offender and victim were in frequent contact via Facebook Messenger. The Commonwealth sets out in tabular form in the written submissions (MFI 1) the contents of some of those calls. Clearly the messages commenced with the offender “flirting” with the victim with messages such as, “By the way I was never gonna touch unless you put my hands on you”, I wasn’t gonna rub up anything without invitation”. The offender also gave advice as to how to flirt and pursue a relationship with her daughters. On 30 December 2019 the offender told the victim that he was a “chick magnet” and that she was drawn to him. There was a series of messages on 30 December 2019 about tasting “cum” or “come”.

  5. The exchanges continued with them discussing how the offender would be a bit hard for the victim to handle. An exchange that is set out at paragraph 22 of MFI 1 includes the offender going into detail about rubbing coconut oil over her breasts (boobs), her performing fellatio (going down and sucking balls), her licking the victim all over and the offender telling the victim that he was sexy.

  6. On 2 January 2020 the offender told the victim that she was pan sexual, which she later described as “you just fall in love”. The victim asked if she was “pan” for him to which she replied, “Unfortunately yes”. The offender then discussed her sex life with her partner. A further exchange is set out at paragraph 25 of MFI 1. That included the victim saying that it was cute that she still loved him, that she told him that she loved his arse and his personality. The offender told the victim that he was way more than a body and he was the nicest guy she ever met. The victim replied “And you love me for it”, to which the victim replied “yes”. The offender told the victim that he was a rare person and when asked by the victim “scale 1-10” replied “100” and agreed with the victim that it was off the charts.

  7. On 3 January 2020 the offender and victim discussed a dream where the victim was showering with one of the offender’s daughters and further a scenario where the offender and her two daughters were fighting over the victim. She said that she would need two as she was “greedy and thirsty” and would not want to wear the victim out. The victim told the offender that he needed more practice and give her a little more love. The offender said that she would love to have a spa with him and that she could teach him a lot. The victim told the offender that she “perves on me all the time” to which the offender replied, “Ha Ha, you mean I try not to perve on you”. The victim asked the offender if she liked a topless photo of him to which she replied, “fuk yes, I did”. They discussed how old they were when they first orgasmed and masturbated.

  8. At paragraph 31 of the written submissions MFI 1 the Crown correctly submits that the offender knew that the communications with the victim were unlawful. She encouraged him to delete their communications. An exchange of messages is then set out that goes over some 3 pages of the submissions. The victim says “So I can fuck you legally when I’m sixteen” and the offender replies “Yes, I still don’t think it’s right” followed soon by “I’m old”. The offender says amongst other things that she would like the victim to come and “spoon” with her. The victim asks “You’ve seen my arse” to which the offender replies, “omg yes”. The offender also says that she wanted to hold the victim all night, and soon thereafter discusses deleting the messages between the victim and her. The offender says in one message, “I don’t know why I feel you and its electrifying I never had that before”.

  9. The offender told the victim that their relationship should stay secret. On 4 January 2020. The victim said in one message that “I have I high chance I’m in love with you” and the offender replied, “I am with you too”. She later says, “but your age means we are gonna have to sneak and hide”. In another message the offender tells the victim that she is “on cloud 9” and in another says that when her divorce comes through they can be together.

  10. Further exchanges occurred on 5 January 2020. The offender suggested that they meet in a private location. Some of the exchange is sexually explicit, including one particular message from the victim, namely “I’m gonna eat your pussy”. The offender says that she “loves being on top”. There are a number of messages relating to oral sex including the victim inquiring “you want me to come in your mouth”. The offender tells the victim that he drives her wild, that she wants to see him “come soo bad”. The messages are very sexually explicit.

  11. The issue at trial was whether the Crown could prove beyond reasonable doubt that the offender had the intention of procuring the victim to engage in sexual activity with herself. Given the number of messages and the very sexually explicit nature of those messages it was not surprising that the jury returned the verdict of guilty, despite the version of the offender being before the jury in the form of the answers in the record of interview.

  12. Any relationship between the offender and the victim ceased on 5 January 2020. The victim and the offender were in effect evacuated from the small community in which they lived because of the bush fires that were at the time threatening a number of communities. They went to the movies together in another town.

  13. The victim’s mother remained at the residence to where they had been evacuated. The victim left his phone on a charger. His mother found the messages between her son the victim and the offender and took the phone to the local police station.

  14. The offender attended the police station by appointment. She voluntarily entered into a record of interview that was an exhibit at the trial. Essentially in the interview the offender admitted to sending the messages, acknowledged that it was very wrong but maintained that she had no intention of procuring the complainant to engage in sexual activity with her. She said she was just “mucking around”. Clearly, given the verdict that was not accepted by the jury.

Assessment – count 1

  1. The Crown maintains in the written submissions (see paragraph 23 MFI 1) that “the conduct in count 1 falls towards the highest end of the range in terms of objective seriousness”. The reasons then advanced for that submission are that the victim was a real child, that the offender knew the victim was 15 years of age at the time of the offending, the age difference of some 34 years is significant, the offender sought to build a rapport with the victim by providing relationship advice, she used the relationship with one of her daughters to gain the victim’s trust, that the offender exploited the friendship between her and the victim’s family, the volume of the messages, the extreme and graphic nature of messages, that penetrative sex was discussed and the offender was well aware of the illegal nature of the of her conduct and the discussion of deletion of the messages.

  2. The victim was a real child, but noting his age he is not a particularly young child. The age difference is significant. Although the offender was well aware of the illegality of her conduct it is also clear from the messages that any actual sexual activity would not occur until the victim was of consenting age (16). The number of messages was significant and there is no doubting the extreme and graphic sexualised nature of some of those messages.

  3. In oral submissions the Commonwealth further submitted that the victim was particularly vulnerable, noting his age and the ADHD. The offender knew the victim had ADHD. Further it was submitted that it did not matter that there was no sexual activity so far as the assessment of the matter is concerned. The oral submissions continued that the messages were all part of process of the offender forming a connection and building trust with the victim. The messages occurred over a period of 8 days. The date range in the indictment is 10 days.

  4. The submissions continued that the offender used her daughters to assist her to get close to the victim and that the messages only ceased when the victim’s mother intervened.

  5. The submissions of the Crown as to the nature of the conduct of the offender are valid submissions. The age difference is very significant. The offender was persistent and the number of messages was significant, as was the highly sexualised nature of the conduct. However, the victim was 15. Although the messages were intense they went over a period of only slightly over a week.

  6. Mr Heazelwood submitted correctly that a number of messages relate to nothing actually happening until the victim turned 16. The victim was 15 and some few months old. In the present matter it was submitted that the offender and victim were well known to each other and had met in innocent circumstances a number of times. They had met on a number of occasions and nothing had occurred. These too are valid submissions so far as determining the seriousness of count 1 is concerned.

  7. Taking all of the circumstances into account the matter is within the mid-range of seriousness. I do not accept the submission by the Commonwealth that the matter is at the upper end of the range of seriousness. It occurs to me that for a offence of this sort to be at the upper end of the range of seriousness the victim would have to be a much younger child, the communications over a lengthier period of time, the victim was a real child who was a complete stranger to the offender and the communications included requests for actual meetings for actual sexual activity.

Facts – count 2

  1. This is the count to which the offender pleaded guilty. The conduct relates to the offender on 4 January 2020 and 5 January 2020 sending a series of text messages to the victim setting out a fictional scenario where she walks in on the victim who is in the shower and then performing a number of sexual acts on the victim. The activity included the offender undressing the victim, licking and sucking his chest, running her tongue up his leg, playing and sucking on his balls (testes), performing fellatio which is described in considerable and graphic detail, the victim ejaculating in her mouth and them “coming” at the same time. At one point of the exchanges the offender inquires as to whether the victim was “stroking it”, clearly a reference to his penis.

  2. The conversation of 4 January 2020 lasted about 25 minutes and the conversation on 5 January 2020 lasted for just short of 20 minutes.

  3. The full exchange of messages is set out at annexure A to the Crown’s written submissions, “MFI 1”.

Assessment – Count 2

  1. It is to be immediately observed that while the description of the sexual activity is detailed and graphic the communications include the written description. There is no photograph or the like.

  2. The Crown submits that count 2 is within the mid-range of seriousness. A number of the submissions made by Mr Heazelwood in respect of count 1 are also relevant in determining the seriousness of count 2.

  3. The victim was a real child and was 15 and a few months. He was not a stranger to the victim. The exchanges which constitute count 2 were part of a large number of exchanges. The description of the sexual fantasy is particularly graphic. However, it is description in words.

  4. Given these matters and that there was no transmission of images of either photographs or drawings or cartoon type images count 2 is below mid-range but not towards the lower end of the range.

Facts – count 3

  1. On 31 December 2019 the victim and the offender were staying at a motel as they had both been evacuated from the small community where they lived because of the bushfires. The motel had a swimming pool. While staying at the motel the offender and her daughters and the victim went for a swim in the pool at the motel.

  1. While in the pool the victim backed into the offender who pinched the victim on the buttocks. Later that night there was an exchange of messages between the victim and the offender. The offender said, “Sorry I grabbed your arse”. A little later she said she felt bad and the victim said that he was “kinda asking for it”. The offender replied, “That’s what I was thinking but I really shouldn’t have done it”.

  2. The offence is constituted by the offender opportunistically pinching the victim once on the buttocks on the outside of whatever he was wearing in the pool at the motel in circumstances where the offender’s daughters were both in the pool. The age difference is significant. However, noting the conduct, the matter is very much towards the low end of the range of seriousness. I observed at the sentence hearing that this matter does not cross the threshold of s 5(1) of the Crimes (Sentencing Procedure) Act, 1999. I also observed that I was proposing to deal with the matter by way of imposition of a Community Corrections Order pursuant to s 8 of the Crimes (Sentencing Procedure) Act. I did not understand either counsel to dissent to that course.

Factors – 16A Crimes Act 1914 (Cth)

  1. I note the requirement of s 16A(1) that the court impose a sentence of a severity appropriate in all the circumstances. I further note the requirement of s 16A(2)(k) that the offender be adequately punished for the offending.

  2. I have set out the facts in respect of each of the three offences for which the offender is to be sentenced in some detail and have made findings on the seriousness of each of those matters. I have in doing this set out the nature and circumstances of the offences in accordance with s 16A(2)(a) of the Crimes Act 1914 (Cth).

  3. The period of time over which the messages occurred in respect of counts 1 and 2 have been factored into the finding of the seriousness of each of those matters. The offending in respect of count 1 occurred over a period of 8 days and in respect of count 2 in two separate exchanges on two successive days. This does not in my view amount to a course of conduct for the purposes of s 16A(2)(c) of the Crimes Act 1914. However as it has been factored into the assessment of the seriousness of the matter it is not afforded any further weight in the determination of the appropriate sentence.

  4. I now turn to s 16A(2)(d)(e) and (ea) namely the circumstances of the victim and any injury loss, damage or harm done. Initially I note that the Crown tender bundle, exhibit A on sentence contains a Victim Impact Statement from the victim. The effect of the offending is set out in dot points and include that initially he wanted to die, that he was taken to hospital with suicidal tendencies, he was stressed and aggressive towards family members, he was angry and ashamed of himself, he has isolated himself form others, he does not know who to trust, he no longer feels happy, he felt used and violated, his relationship with others has been impacted, he is no longer self-confident and he required counselling. I have no difficulty accepting any of what is contained in the victim impact statement. None of these matters should come as any surprise.

  5. The offender did use the victim and she took advantage of the friendship between her and the victim’s family. The victim impact statement although in dot point form speaks clearly of the harm the offender’s conduct has had on the victim. The effect of this type of conduct on child victims is one of the principal policy reasons behind the often-stated need for general deterrence when sentencing for this type of offence.

  6. There is no authority of which I am aware or to which I have been referred that specifically deals with Victim Impact Statements in respect of Commonwealth offending. I therefore have recourse to the decision of R vTuala [2015] NSWCCA 8. As I observed in DPP (Cth) v Halbisch [2021] NSWDC 306 at [54] s 16A(2)(ea) of the Crimes Act 1914 (Cth) appears to have the same practical meaning as s 30E of the Crimes (Sentencing Procedure) Act, 1999, which is the legislation that the court was considering in Tuala.

I note in particular paragraphs [77]-[84] of the judgment of Simpson J (as her Honour then was) in Tuala. Her Honour concluded at [84]:

"…The victim impact statement could not be used to extend the assessment of the degree of emotional harm, or other loss and damage (including financial loss) beyond that that could ordinarily be expected in the circumstances of the offences, or that which was proved by other evidence. The Crown has not established error in a failure to take into account loss and damage, including financial loss and damage, extending beyond what is encompassed in offences of the kind of which the respondent was convicted."

  1. In the matter presently under consideration, without deprecating the undoubted effect of the offending on the victim, in the absence of any further material such as expert medical or psychological reports or the like I could not find that the effect of the offending in this case goes beyond what might be ordinarily expect with this type of offending. The effect of the offending is of course all part of what is considered in the instinctive synthesis process of determining the sentence.

  2. Be that as it may I note that in Clarkson v The Queen; E J A v The Queen (2011) 32 VR 361; [2011] VSCA 157 the Court (Maxwell ACJ, Nettle JA (as his Honour then was), Neave, Redlich & Harper JJA said at [3]:

“The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent…”

  1. Further, as the Commonwealth submits (paragraph 36 MFI 1 on sentence) the principles of the presumption of harm apply equally to “cybersex” offences as well as in person offences. The Victorian Court of Appeal (Warren CJ, Redlick & Weinberg JJA) in Adamson v R [2015] VSCA 194 at [25] said:

“There is no reason why the implicit statutory presumption of harm should not apply equally to cybersex offences as well as ‘in person’ offences. The conduct prohibited in respect of cybersex offences falls squarely within the rationale of Clarkson. As the Commonwealth Director submitted, the ‘in person’ and cybersex offences have the same underlying objectives — to protect children and to deter those who might contemplate sexual activity with a child under 16.”

  1. The next issues to be considered are sections 16A(2)(f) and (g). I will initially deal with subparagraph (g). The offender pleaded guilty to count 2 on the day of trial. The jury was required to return a verdict of guilty to that count and the Crown was required to put evidence before the jury in relation to that count. There was limited utilitarian value. There was very little benefit to the community or the victim or any witness. Earlier in these reasons I assessed the value of the plea in respect of count 2, including the utilitarian value of the plea to be 5%. In respect of counts 1 and 3 pleas of not guilty were maintained. That is not to suggest that the penalty is in any way increased because the accused put the Crown to proof but there can be no consideration or discount for any plea of guilty in respect of counts 1 and 3.

  2. So far as s 16A(2)(f) is concerned, I am satisfied on balance that the offender has shown remorse. She gave evidence at the sentence hearing to the effect that she was really ashamed of her actions, that she felt horrible about what had occurred to the victim and his family. She accepted that she had caused the victim “so much stress”. Further what she did was “horrible” and she felt terrible about what she had done.

  3. There is nothing particularly unusual or exceptional for offenders to express remorse in circumstances where the matter went to trial. I remember the demeanour of the offender when she gave the evidence recounted in the paragraph immediately above. I had no doubt that she was genuine in her expressions of contrition. That contrition is a matter in mitigation that must be factored into the ultimate sentence that is imposed.

  4. Further there is to be afforded to the offender some, although not considerable, consideration for her co-operation with law enforcement activities. She made a number of admissions to police in the course of the record of interview. That interview was conducted after she met the police by appointment. The offender admitted to communicating with the victim via Facebook Messenger on her mobile phone, that she operated a Facebook account in the name of [L] Lawless [L] and that no one else had access to that account and that she knew the victim was 15 years of age.

  5. In written submissions (see paragraph 46 MFI 1 on sentence) the Crown maintains that the offender attempted to minimise her offending by telling police that she was only “mucking around”. Essentially that was the defence case at the trial, which was obviously rejected by the jury. The fact remains however that the offender is entitled to some limited consideration for her co-operation.

  6. General and personal deterrence are also matters that have to be given proper consideration. Bell CJ (Gleeson JA, Harrison, Adamson & DHanji JJ agreeing) in Totaan v R [2022] NSWCCA 75 said at [99]:

“With the arguable exception of Director of Public Prosecutions (Cth) v Milne [2001] VSCA 93, not only did the cases cited for this asserted “principle” not support it but, as noted earlier in these reasons, s 16A does not fetter the sentencing discretion by creating any hierarchy of matters to be considered so as to result in one or more factors being described as “pre-eminent”. The role of deterrence was more accurately described by Doyle CJ, Mullighan, Williams, Bleby and Martin JJ in Kovacevic v Mills (2000) 76 SASR 404; [2000] SASC 106 at [43] as follows:

‘In our view in the more serious cases of sustained and deliberate fraud, deterrence is very important, imprisonment is likely to be required, but all mitigating circumstances and the rehabilitation of the offender must still be considered. Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served.’”

  1. The Crown submits at paragraph 2 of the written submissions, “…the only appropriate penalty is a term of full-time imprisonment having regard to the nature and objective seriousness of the offences and the paramount need for general deterrence and the denunciation of the offender’s conduct”. Given the decision of Totaan particularly what is extracted above, the need for general deterrence cannot be paramount. However, general deterrence clearly has a role to play in this matter. Clearly enough the public policy behind this is that children must be protected.

  2. McClellan CJ at CL (Latham & Price JJ agreeing) in R v Asplund [2010] NSWCCA 316 at [50] said:

"The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity."

  1. Further, Johnson J observed in R vDe Leeuw [2015] NSWCCA 183 at [72(c)]:

“General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]-[36]; DPP (Cth) v D'Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34].”

  1. Although the court in De Leeuw was concerned with offences relating to child pornography there is no reason to doubt that the general principle as to the need for general deterrence also applies to the type of offending with which I am dealing in the matter presently under consideration. However, while clearly general deterrence is an important factor to be taken into account given the decision in Totaan it cannot be of primary or paramount importance.

  2. However, the court in the Crown appeal in R v Fuller [2010] NSWCCA 192 was specifically dealing with offending contrary to s 474.26 of the Criminal Code. At [25]-[26] McClellan CJ at CL (Hislop & Barr JJ agreeing) said in that case:

“The internet has produced many benefits for the community but has also brought some problems. One of those problems is addressed by s 474.26 of the Commonwealth Criminal Code. The offence is made possible because the internet provides access to communicate with others anonymously. Tragically, experience has shown that it is not uncommon for immature persons, particularly females, to explore the internet and accept communications from adults who are seeking sexual encounters with children. Because a child can access and navigate the internet without the supervision of a responsible adult, the opportunity for a sexual predator to identify a potential victim is significant. If communication is made, the harm to the young person may be considerable, even if sexual activity does not ultimately occur. Of course, the potential for harm will be greater if sexual activity does take place.

[26] It is for these reasons that the legislature has made it an offence to use the internet to procure a young person to engage in or submit to sexual activity. It is also apparent that the detection of the offence may be difficult. For this reason the legislature has determined that the law enforcement authorities should be empowered to identify persons who are seeking to communicate in the manner prohibited by the section by creating fictitious identities.”

  1. The Crown also maintains that there should be an element of specific deterrence factored into the sentence imposed in this matter. The offender is in her fifties with virtually nothing of consequence on her criminal record. Given this and what the offender expressed about her own offending dealt with when dealing with contrition I am not of the opinion that specific deterrence has any real work to do in this sentencing exercise.

  2. I now turn to the offender’s subjective case in dealing with the character, age, antecedents and background of the offender pursuant to s 16A(2)(m) of the Crimes Act 1914 (Cth). The offender was born on 14 February 1970 and accordingly is 52 years of age at the time of sentence and was 49 at the time of the offending. In 1991 and 1992 there are three convictions that resulted in modest fines for soliciting within view of a dwelling. In 1993 she was convicted placed on a good behaviour bond for Possession of a Prohibited Drug (heroin). That was the last occasion prior to the present offending that the offender was before a court. The offender is entitled to some consideration for her very limited record noting that Soliciting is no longer an offence. I note the Crown concedes that these matters on the offender’s record have no relevance in the present proceedings.

  3. It appears uncontroversial that the lack of criminal history is not given the same weight in matters such as the one presently before the court than it is with other matters. If authority for that proposition is needed I note R v De Leeuw [2015] NSWCCA 183 at [72(d)] per Johnson J and R v Gajjar (2008) 192 A Crim R 76 at [27]-[29]. The Court (Maxwell P, Nettle JA (as his Honour then was), Weinberg JA) said in Gajjar at [28]:

"That is not to say that less weight is to be accorded to good character is any absolute sense. It is rather to recognise that, when greater weight is attached in the balancing process to general deterrence, it necessarily follows at least in a relative sense, that less weight will be accorded to what might otherwise be significant mitigating factors".

  1. The offender gave evidence and also relied on a report by Dr Jeremy O’Dea, Forensic Psychiatrist. The Crown submits (see paragraphs 56, 57 written submissions, MFI 1) as to the weight to be given to third party reports. In the present matter I note that the offender gave evidence. Further, the Crown did not object to the tender of Dr O’Dea’s report nor did the Crown require the doctor for cross-examination. In evidence the offender maintained that she had been truthful with the history given to Dr O’Dea. Dr O’Dea is highly experienced and highly qualified in his field. I see no reason to give his report less weight. I will initially deal with that report before going to the offender’s evidence.

  2. The offender moved to another area after the trial. She lives with her twin daughters now aged 16 years. The offender’s father is still alive living in a small country town in south western New South Wales. Her mother died in her 60’s as a result of complications with surgery. She grew up in suburban Sydney. Her upbringing would appear to have been quite unremarkable. She began drinking alcohol to excess and abusing illicit substances in her teenage years. She progressed in her late teenage years and early twenties to abusing amphetamines, cocaine and heroin. Has been abstinent from illicit substances since 2000. She has continued to use alcohol and has recently reduced her intake.

  3. The report continues (paragraph 20ff) that the offender got a job as a sex worker, initially as a stripper and progressed to sex work at which she worked from 1991 to 1993. She used heroin to cope with the work as a sex worker. She was sexually assaulted a number of times while working as a sex worker.

  4. The offender’s son was born in June 1993. He now lives by himself in Melbourne where he works in a factory in fabrication. The offender met her partner of some years who is the father of her daughters on a dating site. They lived together in the small town where the offending occurred. She has now separated from her husband to whom she was married for 14 years.

  5. So far as the offending is concerned the offender told Dr O’Dea (paragraph 45, p 6 of the report) that “…it just snowballed into something really stupid…I suppose he’s 15…he was like a son of mine…it just snowballed into stupid sex crap...I should have shut it down, I was drinking at the time…” So far as count 3 is concerned the offender told Dr O’Dea that her asthma had been playing up, the complainant was touching everyone in the pool…I don’t like being touched in the water…I pinched him…and accidentally got his butt.

  6. The offender told Dr O’Dea that she was menopausal and has a back injury as a result of a horse riding accident. The sexual relationship with her ex-husband was not good. She described him as a narcissist. She considered her sexual orientation to be bisexual. She said that she did not like boys, she liked men. She went on to tell the doctor that she thought it snowballed because he (victim) was protective. She had not engaged in extramarital relationships during the marriage.

  7. Dr O’Dea records that the offender gave a history of being the victim of sexual abuse as a child. This appears to have been a one-off incident with a man in park when the offender was 10 or 11 years of age.

  8. The offender gave an account of a psychotic episode but this was when she was using illicit substances. She has since been treated for anxiety and depression, including being prescribed anti-depressants. She suffers flashbacks from her time as a sex worker. She encountered suicidal ideation at the time she was charged with the offences for which she now appears for sentence.

  9. Dr O’Dea did not diagnose the offender as suffering from a major psychiatric illness. She has a substance use disorder that is in remission. The doctor notes the trauma to which the offender has been subject in her life including the sexual assaults while working as a sex worker. He also diagnoses a Depressive Disorder and significant post-traumatic stress style symptoms. However, he says he is not a position to directly link in a causal manner the psychiatric history with the offending. Nevertheless, the conditions require ongoing assessment and treatment via a comprehensive and assertive community psychiatric treatment programme. The mental health issues identified by Dr O’Dea are all part of the subjective mix.

  1. Further, Dr O’Dea goes on to say that the offender’s conduct in relation to the offences may be better understood in the context of her difficulties appropriately managing what were likely to be relatively spontaneous and unfamiliar sexual attractions, sexual fantasies and sexual urges towards a post pubertal underage male child in her close social surrounds.

  2. Dr O’Dea opines (paragraph 78, p 11) that the risk of the offender engaging in further sex offending behaviours in the community in the long term would be relatively low. However, he recommends that the offender explore in detail with a suitably qualified and experienced forensic psychiatrist or psychologist her sexuality in general and her offending in particular with the aim of her getting a better understanding of her offending behaviours.

  3. I have already referred to one aspect of the offender’s evidence when dealing with the issue of contrition. The offender said in evidence that in the early 1990’s she worked as a sex worker to obtain money for drugs. She was in an abusive relationship at the time and her then partner would be violent towards her if she did not work to get money for drugs. That relationship lasted on and off for about 10 years. She gave evidence against him which experience she found to be horrible.

  4. She moved to the small community where the offending occurred, which was a village of only about 200 people. The relationship with her husband was not good in that he was emotionally abusive. After the separation she moved to to another state with her daughters. Some few days before the sentence hearing she spoke to a counsellor from a body she referred to as the Victorian Child Protection Agency. The person to whom she spoke understandably expressed some concern about her daughters living by themselves if she went into custody.

  5. After submissions had commenced the offender gave further evidence on the aspect of her daughters. This was essentially at my suggestion given what was then the recent decision of the Court of Criminal Appeal in Totaan. The offender gave evidence that the house in which she lives with her two daughters is unencumbered. She has discussed with her daughters the prospect of them continuing to live in the house by themselves if she goes into full time custody. She has deposited $20,000 in the bank account of each of her daughters’, which funds came from the property settlement with her ex-husband. He has a particularly strong objection to the girls living by themselves. That objection is readily understandable.

  6. Her son lives in Melbourne by himself in a one-bedroom flat. He does not wish to relocate, nor does he wish to give up the work which he presently does. The girls’ father sees them on overnight visits. His parents are in their 80’s and live on a small property near Wagga Wagga. Her father is in his 90’s and lives in another small town in the Riverina area. There was the possibility of someone from a town nearby to where the offending occurred near the girls’ father that might have been able to care for the girls, but it seems that that was not really practical.

  7. The further evidence continued that one of the girls is anorexic and medical assistance has been sought. The other twin has consulted a paediatrician who diagnosed probably autism spectrum disorder. The father refused to accept there was any issue but the offender noted that that daughter would not mix and did not pick up on social cues.

  8. Returning to the offender’s initial evidence, I have dealt with the expression of contrition. The time of the offending was very stressful in that there were many severe bushfires in the area and the small town in which they lived was essentially evacuated. She confirmed the medical conditions of a back injury as set out in Dr O’Dea’s report. The offender indicated a willingness to continue with counselling as recommended by Dr O’Dea. She is already seeing psychologist on a regular basis.

  9. Under cross-examination the offender said that the psychologist she is seeing knows about the offending. She had discussed with that practitioner the impact on the victim and why the offending would be harmful to the victim. She accepted that she breached the trust that she had with the victim’s family.

  10. Further under cross examination the offender accepted that she was largely driving the exchanges and conversations with the victim. She accepted that when the victim told her that he wanted to cease contact with her that she wanted to die.

  11. When asked under cross-examination as to why she had not made arrangements for the care of her daughters earlier the offender maintained that she thought that she had a sufficient support network in place.

  12. The offender was also cross-examined about what she told Dr O’Dea about the conduct to which count 3 relates being accidental. Despite the protestations by the offender the text messages which were before the jury clearly demonstrate that it was not an accidental touching. Count 3 is however, the least serious of all the offending.

  13. For more abundant caution noting the offender’s age, lack of record and the fact that she is now receiving some counselling I am of the opinion that the offender is unlikely to re-offend. With some minor hesitation essentially for those same reasons I find that there are good prospects of rehabilitation. In this regard I note s 16A(2AAA) of the Crimes Act 1914 that provides:

“In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:

(a) when making an order—to impose any conditions about rehabilitation or treatment options;

(b) in determining the length of any sentence or non-parole period—to include sufficient time for the person to undertake a rehabilitation program.”

  1. The need for an extended period of supervision to ensure that the offender continues to receive counselling goes towards the ratio of any period spent in actual custody to the total sentence. The offender is in her early fifties and any sentence of imprisonment would be her first time in custody, which goes to that same issue. Likewise given her age there would likely be the issue of the offender requiring assistance in re integration into the community.

  2. I am of the opinion that I have adequately addressed the requirements of s 16A(2)(n) of the Crimes Act 1914.

  3. I spent some time going through the offender’s evidence in relation to the issue of the twin girls because of s 16A(2)(p) of the Crimes Act. The court must consider the hardship to the offender’s dependents as part of the process of determining the appropriate sentence. The evidence makes in clear in my view that the impact of any sentence of full time custody on the offender’s children will be significant indeed. To my mind it would be entirely unsatisfactory to have two 16 year old girls, both of whom have their particular issues, living by themselves, essentially without supervision. They still attend school. If the offender is sentenced to full-time custody it may well be that the girls would have to live with their father. That of course also has its own issues noting that the victim and his family live in the same small town as the girls’ father.

Other cases

  1. With the thoroughness the court has come to expect from the Commonwealth a table of what are said to be comparable cases is annexed to the Crown’s written submissions. One of the decisions is R v Kebriti [2019] VSCA 275 in which the offender was sentenced in respect of Procure offence contrary to s 474.26(1) of the Criminal Code and a charge of Use Carriage Service to Transmit Indecent Material contrary to s 474.27A(1) of the Criminal Code. The Procure charge involved the offender arranging to meet the victim who was 11 but the offender was believed to be 12. It also involved arranging for the victim to attend the offender's home after the meeting. The Transmit offence involved the offender sending two images of his erect penis to the victim. The Procure offence occurred over a period of 40 minutes and was highly sexualised. The sentence of 4 years with a non-parole period of 2 years 3 months was found to be in range. The sentence imposed in respect of the “procure” offence was 3 years 6 months. I infer from the table that there was a plea of not guilty and the matter was defended. There was no remorse.

  2. Although not referred to by the Commonwealth there is the decision of R v Gajjar (2008) 192 A Crim R 76. The offender was sentenced to a total term of imprisonment of 2 years 6 months with release on recognizance after 8 months. The offender was 28 years of age and pleaded guilty to one count of Procuring contrary to s 474.26(1) of the Criminal Code. The communications were with an online identity who purported to be 14 years of age. A meeting was arranged and the offender attended the meeting point. The appeal was dismissed. However, I also note that that decision of course is now 14 years old.

  3. There is also the decision of R v Poynder (2007) 171 A Crim R 544. The offender (i.e. the respondent to a Crown appeal) was charged with two offences, one being a procuring offence. The offender was sentenced to a sentence of 3 years imprisonment with release on a recognizance release order after 1 year 3 months. One of the offences involved the making of 540 calls. The offender used a telephone chat line and spoke to one male who he believed was 15 and a female who told the offender she was 15. The offender was 50 years of age of prior good character and had been a legal practitioner. At [49] it was observed that in neither offence had there been a process of online "grooming". A number of other sentencing decisions are considered at [58]ff. I note that Rothman J in additional comments said at [97]:

“In the particular instance with which Judge Norrish QC was dealing, the offender was committing the offence on a telephone service which overtly encouraged sexual discussion and fantasy, if not more. That fact is, it seems to me, far more relevant as one of the criteria by which a sentencing judge would determine the criminal culpability of the offender. If, for example, the offence were committed on persons who were not voluntarily engaged in sexual discussions, the criminal culpability would be much worse.”

  1. The Crown refers the court to the decision of Gifford v R [2016] NSWCCA 302. The offender was 35 years of age and communicated with two victims one of whom was 13 and the other 14. The offender did not know either of the victims. The offending occurred over about three months (11 October to 26 December 2014). The offender sought to arrange to meet the older of the victims in a hotel room on which occasion he would pay her for oral sex. The offender did not meet the victim. The communications from the offender were highly sexualised. The offender also suggested a motel room to the younger victim in one of his communications. The facts of relating to both victims are set out at [8]-[16] inclusive of the judgment of Ward JA (as her Honour then was), Bellew J, Hidden AJ agreeing.

  2. The total effective sentence was 6 years 1 month with a non-parole period of 3 years 11 months. The sentences for the individual offences were 5 years 7 months and 5 years 2 months. To my mind this matter is considerably more serious than the matter with which I am dealing. The victims were younger, although not greatly. The offender was unknown to the victims. The offending continued over a considerably longer time than in the present matter. There were arrangements to meet. In the present matter the victim and the offender were well known to each other. There was a discussion to the effect that any sexual activity would wait until the victim was over 16 years.

Submissions

  1. Mr Heazelwood of counsel for the offender made the submission that any sentence would be three years or less and given what was asserted to the seriousness of the matters and the strong subjective case any sentence of imprisonment should be suspended pursuant to s 20(1)(b) of the Crimes Act 1914. However, as I observed to Mr Heazelwood at the sentence hearing if the gender roles were reversed and there was a male offender and female victim it is unlikely that that submission would be made.

  2. The submissions continued that what was significant in this matter was the age of the victim, i.e., 15 years and some months and the offender and victim were well known to each other in the present matter. It was also emphasised that there were a large number of messages indicating that there would be no actual sexual activity until the victim had turned 16 and therefore of consenting age.

  3. Mr Heazelwood made reference to the statistics kept by the Judicial Commission and submitted that while the percentages were “narrow” the disposition of the matter by way of suspended sentence was available. The decision of Hili & Jones v The Queen [2010] HCA 45 is authority for the proposition that sentencing statistics have a limited use. On this issue there is also the decision of Brown v R [2014] NSWCCA 215 where Garling J observed at [81]:

“In offences such as the one with which the Court is here concerned, the statistics from the Judicial Commission are a particularly blunt tool because the injuries which were actually inflicted are not described. Whether the sentences which were imposed upon offenders who had a prior criminal history, and what that criminal history was, are not described and, the range of possible factual circumstances involved in an offence such as this is broad.”

  1. It was further put that all of the offending occurred over an eight day period. A number of the communications were “inane”. There is some real substance to that last submission. Although there was a very large number of communications a good number of them were to use counsel’s word “inane”.

  2. The submissions continued that the offender should receive a discount for the plea of guilty in respect of count 2. I have a memory of suggesting a discount of 5%. I did not understand either counsel to necessarily disagree with that submission. A submission was made that the trial matter was conducted economically. I understood the Crown to take issue with this noting that at the trial the Crown proposed to limit the tender of the number of messages. Counsel for the accused required all of the messages to be before the jury. Some time was taken to prepare the expanded tender document. Be that as it may the trial was conducted quite economically. For example, the accused through her counsel consented to the calls being before the jury by way of written extract rather than the court having to listen to the calls in their entirety.

  3. Mr Heazelwood also submitted that specific deterrence has little work to do in this sentencing exercise. I agree with that submission. The hardship to the offender’s daughters if she was imprisoned was appropriately emphasised in oral submissions. Further, reference was made to parts of Dr O’Dea’s report. It was put that paragraph 76, to which I have earlier referred, goes to understanding the offender’s conduct.

  4. In oral submissions the Crown Prosecutor emphasised some matters already before me by way of written submissions. The Crown put that count 1 was towards the upper end of the range of seriousness. I reject that submission for reasons already given. It was put that the victim had particular vulnerabilities noting the ADHD. A little later it was correctly put that the offender knew the victim had ADHD

  5. Further, the Crown put that although there was no actual meeting between the offender and victim for sexual purposes the harm contemplated by the offence was the communications themselves. That is consistent with a number of the authorities for e.g. Gifford to which I earlier referred. It was put that the messages were part of a process of building trust. The offending occurred over a period of eight days showing a persistence by the offender.

  6. The submissions continued that the offender used her daughters to an extent to assist in getting closer to the victim. Further, the messages only ceased after the victim’s mother intervened after finding the messages on the phone. It was clear from the messages themselves that the offender knew that her conduct was wrong.

  7. The Crown put that count 2 is within the mid-range. I also reject that submission for reasons already given. The transmission was a fictional scenario and did not involve the transmission of any images or the like. The Crown referred to the decision of Martin v R [2014] NSWCCA 124. Although it will add to the length of these reasons it is instructive to examine the facts in that case as set out by Beech-Jones J (as his Honour then was), Hoeben CJ at CL, Rothman J agreeing at [14]-[16]:

“A search of the computer revealed that it contained 35,318 picture files, 257 video files and 4,505 document. Ten thousand picture files were examined. One picture file said to contain child abuse material was selected. All the video files were examined. Six video files were selected. One hundred and twenty-three documents files were examined and eight were selected. The selected material was said to constitute child abuse material of varying levels of offensiveness. It included material depicting sexual activity involving children. This material formed the basis for one of the two offences under s 91H(2) of possession of child abuse material.

[15] A search of the memory stick revealed 24,732 picture files, 66 video files, and 73 document files. Two thousand eight hundred and fifty picture files were examined, of which 399 files were selected. All 66 video files were examined. Forty-three were selected. Eighteen of the document files were examined and fifteen were selected. Again, the selected material was said to constitute child abuse material. The selected pictures and video files included material that depicted sexual activity involving children. The applicant's possession of this material was the basis of the other offence under s 91H(2) of possessing child abuse material.

[16] The balance of the offences under s 91H(2) related to material that was seized from the applicant's mobile phone. A search of the phone revealed that between 8:54am on 18 January 2013 and 9:55am on 21 January 2013 the applicant "composed" and then sent to the (former) inmate five short message service ("SMS") messages. According to the statement of facts, each message constituted an "instalment of [a] ... fantasy involving the participation of a thirteen (13) year old boy ... in sex acts with the accused". Over the course of the instalments there was an escalation in the description of the sexual involvement between the applicant and the boy the subject of the story. The story included descriptions of sexual intercourse between the applicant and the boy. Each of the five instalments resulted in two offences, being an offence of producing "child abuse material" under s 91H(2) for the act of composing the instalment, and an offence of disseminating such material for the act of sending it.”

  1. However, as the learned judge at first instance in that case observed (see [24] of the CCA judgment), “Nevertheless, his Honour described the conduct as serious in that "even fantasies produce a distorted view of reality, in which sex with children is somehow seen as appropriate". Sometimes there is conflation between what constitutes the offence and the objective serious of any particular offence.

  2. The Crown appropriately submitted that there should be some degree of partial accumulation in the sentences for counts 1 and 2. As I understood the Crown’s submissions it was put that the court would be guarded about making any positive findings that the offender is unlikely to reoffend that there were good prospects of rehabilitation. I have already made findings in respect of those matters.

  1. The Crown accepted that there would be hardship to the offender’s daughters if she were to be imprisoned. However, the Crown then submitted that arrangements have been put in place. It was put that the hardship to the offender’s daughters was one aspect of the sentencing exercise that was part of the overall instinctive synthesis process of determining the appropriate sentence.

General Remarks

  1. The COVID-19 pandemic continues to have far reaching effects with the broader community. It has particular significance for those in custody, including long periods of isolation, isolation when moved from one institution to another and lack of face to face family visits amongst others. I note and have regard to the authorities of Mbele v R [2021] NSWCCA 182 at [96]-[104] and Valentine v R [2020] NSWCCA 116 at [59]-[62]. More recently there is also the decision of Toller v R [2021] NSWCCA 204 at [25].

  2. The primary submission on behalf of the offender is that the court impose a suspended sentence. Implicit in that submission is an acceptance that there must be a sentence of imprisonment. In this matter in respect of counts 1 and 2 noting the criminality and other aspects of the sentencing exercise including general deterrence and protection of the community there must be a sentence of imprisonment. Ordinarily if a sentence is to be suspended the court must first make a determination of the appropriate sentence and then determine the means by which that sentence is to be served. I note that by reason of the nature of the offending an Intensive Correction Order is not available as a means by which any sentence could be served.

  3. The Commonwealth submitted that it would be appropriate to impose a sentence of imprisonment with a non-parole period. Implicit in that submission is that the total sentence imposed should exceed three years. Superficially at least that submission does not sit particularly comfortably with the decision of the High Court in Barbaro & Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2. A sentence of more than three years cannot be served by way of suspended sentence. I presume the Commonwealth made that submission on the basis that I would find the seriousness of both matters as the Commonwealth submitted. I have found both matters to be less serious than what is submitted by the Commonwealth.

  4. Counts 1 and 2 are both offences contrary to the Criminal Code 1995 being dealt with on indictment. In DPP (Cth) v Beattie [2017] NSWCCA 301, Price J said at [145]-[146]:

“The Commonwealth Director submitted that based on the decision in Putland, aggregate sentences are available in New South Wales for offenders prosecuted for two or more Commonwealth offences on indictment, by application of s 53A of the Crimes (Sentencing Procedure) Act. The respondent did not take issue with the Commonwealth Director’s submission.

The Commonwealth Director’s submission is soundly based. There does not appear to be any good reason for concluding that s 53A does not apply to Commonwealth offences dealt with on indictment in New South Wales.”

  1. Although there has been some doubt expressed by a differently constituted bench in the Court of Criminal Appeal of the correctness of what is set out in the paragraph immediately above recently Beech-Jones CJ at CL said in making brief additional comments in R v Delzotto [2022] NSWCCA 117 at [2]:

“This Court is entitled to act on what was found in Beattie until the contrary is held either by the High Court or this Court acting in accordance with established principles concerning the departure from its earlier decisions (see for example Totaan v R [2022] NSWCCA 75).

  1. This is an appropriate matter for an aggregate sentence. It will be necessary for me to indicate what sentences would have been imposed had separate sentences been imposed. I agree with the Commonwealth that if separate sentences were imposed there would need to be some degree of partial accumulation noting the different offending. However, that degree of partial accumulation would not be substantial noting that count 2 was committed during the same eight day period over which the communications to which count 1 relates were sent. It is essentially the one course of conduct.

  2. In all of the circumstances I am of the opinion that the appropriate sentence for count 1 is 2 years 6 months. The appropriate sentence for count 2 is a starting point of 12 months imprisonment from which is to be deducted 5% producing a total sentence of 11 months. In all of the circumstances I am of the opinion that the aggregate sentence is one of 3 years. Now, for the consideration as to the means by which that sentence is to be served.

  3. The concept of suspended sentences was considered by the High Court in Dinsdale v The Queen (2000) 202 CLR 321. Kirby J (Gleeson CJ Hayne J agreeing with the outcome but making brief additional comments; Gaudron and Gummow JJ agreeing) said (footnotes omitted) at [74]:

“The statutory power to suspend the operation of a sentence of imprisonment, although historically of long standing, is sometimes considered controversial. The "[c]onceptual [i]ncongruity" involved in this form of sentence has been criticised. It has been suggested that there is a temptation to use this option where a non-custodial order would have been sufficient and appropriate. It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all.”

  1. His Honour went on to say at [79]-[80]:

“The common failure of Parliaments to state expressly the criteria for the suspension of a term of imprisonment has led to attempts by the courts to explain the considerations to which weight should be given and the approach that should be adopted. The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a "soft option" when the court with the responsibility of sentencing is "not quite certain what to do"

The question of what factors will determine whether a suspended sentence will be imposed, once it is decided that a term of imprisonment is appropriate, is presented starkly because, in cases where the suspended sentence is served completely, without reoffending, the result will be that the offender incurs no custodial punishment, indeed no actual coercive punishment beyond the public entry of conviction and the sentence with its attendant risks. Courts repeatedly assert that the sentence of suspended imprisonment is the penultimate penalty known to the law and this statement is given credence by the terms and structure of the statute. However, in practice, it is not always viewed that way by the public, by victims of criminal wrong-doing or even by offenders themselves. This disparity of attitudes illustrates the tension that exists between the component parts of this sentencing option: the decision to imprison and the decision to suspend.”

  1. Further his Honour said at [84]:

“In my view, to limit the exercise of the discretion to suspend a sentence of imprisonment by reference wholly, mainly or specially, to the effect which suspension would have on rehabilitation of the offender would constitute an error. There is nothing in the grant of the power, as expressed in the applicable legislation, to justify confining its availability in such a way. Had the legislature intended to limit the discretion to suspend by reference to such a consideration, it could have done so. This consideration is particularly relevant to the Western Australian legislation, which amounts to a recent endeavour to collect all the main principles of sentencing in a statute of general application.”

  1. A little later Howie J in giving the judgment of the court in R v Zamagias [2002] NSWCCA 17 said at [32]:

“Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.”   

  1. Although his Honour was dealing specifically with s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (as it then was) it seems to me that with unfeigned respect the principles enunciated have a broader application.

  2. I also note the observations of Fullerton J in Karout v R [2019] NSWCCA 253 at [94]:

“…Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant’s offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play”.

  1. Karout v R went to the High Court by way of application for Special Leave. Gordon and Edelman JJ dismissed the application “on the papers” and observed in Karout v The Queen [2020] HCASL 56 that “…The proposed grounds…have insufficient prospects of success to warrant a grant of special leave”. The reason I raise this decision is the issue of the principle of general deterrence and the offending overwhelming other considerations in play. It occurs to me that this is relevant to the issue confronting the court in the matter presently under consideration. The state Sentencing Act does not apply but the overall general considerations are very similar. There will be cases where the offending and the other applicable sentencing principles including general deterrence will “overwhelm other considerations in play” and require the court to impose a sentence of immediate imprisonment.

  2. In the matter presently under consideration given in particular the nature of the offending but also the other sentencing principles that are applicable including general deterrence despite what is undoubtedly a very strong subjective case demands that a sentence of immediate imprisonment be imposed.

  3. As the sentence does not exceed three years it will be necessary to set a recognizance release order. Matters that go to inform the ratio of actual custody and the total sentence include the offender’s age, this is her first time in custody, the need for supervision and assistance in reintegrating into the community upon release and the need for an extended period of supervision to ensure that the offender receives appropriate treatment and counselling for the various mental health issues. The issue of hardship to the offender’s daughters has been taken into account in the determination of the length of the sentence. To give that issue further weight when determining the ratio of actual custody to the total sentence would be to double count.

Orders

  1. The offender is convicted of counts 1, 2 and 3 on the indictment.

  2. In respect of count 3 the offender is released on a Community Corrections Order pursuant to s 8 of the Crimes (Sentencing Procedure) Act, 1999 (NSW) for a period of 15 months. That order is conditioned that:

  1. She commit no further offences, and

  2. She appear for sentence in respect of any breach committed within the period of the order.

  1. I will not order supervision as the order is subsumed by a period of actual custody that I am about to impose.

  2. In respect of counts 1 and 2 on the indictment the offender is sentenced to an aggregate sentence of 3 years.

  3. Pursuant to s 20(1)(b) and 19AC of the Crimes Act 1914 I direct that the offender be released after serving a period of 18 months (i.e. from 14 June 2022 to 13 December 2023) upon her entering a recognizance herself in the sum of $1000 to be of good behaviour for a period of three years. That recognizance is conditioned that the offender:

  1. Be of good behaviour;

  2. For a period of 2 years or such shorter period as might be deemed appropriate be subject to the supervision and guidance of the Department of Community Corrections and further that she obey all reasonable directions of that department;

  3. Not travel overseas or interstate without the written permission of the officer of the Department of Community Corrections that is responsible for her supervision;

  4. Undertake such treatment or rehabilitation programmes as might be recommended by personnel of the Department of Community Corrections, and

  5. Notify the Registrar of this Court of any change of address.

  1. Pursuant to s 23ZD of the Crimes Act 1914 and upon the application by the Director of Public Prosecutions the offender’s black Samsung mobile phone (IME354809100909189)(Ex X0003386489) be forfeited to the Commonwealth.

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Decision last updated: 14 June 2022

Most Recent Citation
Cases Citing This Decision

1

R v Barnes [2023] NSWDC 33
Cases Cited

35

Statutory Material Cited

4

Adamson v The Queen [2015] VSCA 194
Barbaro v The Queen [2014] HCA 2
GAS v The Queen [2004] HCA 22