District Court
New South Wales
- Amendment notes
Medium Neutral Citation: R v Lonergan [2022] NSWDC 423 Hearing dates: 21 September 2022 Date of orders: 21 September 2022 Decision date: 21 September 2022 Jurisdiction: Criminal Before: Abadee DCJ Decision: See paragraph 52 – 53
Catchwords: CRIMINAL LAW – severity appeal from local court – domestic violence offence – offence of distributing intimate image
Legislation Cited: Crimes Act 1900 (NSW) s 91Q
Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 9, 10, 99
Cases Cited: Einfeld v R (2010) 200 A Crim R 1
R v Beissel (1996) 89 A Crim R 210
R v Zerafa (2013) 235 A Crim R 265
Texts Cited: Odgers, ‘Sentence’ (5th edition)
Howie & Johnson, Criminal Practice & Procedure NSW (Lexis Nexis Online)
Category: Principal judgment Parties: Ms T Lonergan (appellant)
ODPPRepresentation: Solicitors:
Conditsis Lawyers for the appellant
ODPP
File Number(s): 2022/00187629 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Wyong Local Court
- Jurisdiction:
- Local Court of NSW
- Date of Decision:
- 11 August 2022
- Before:
- Magistrate A Railton
- File Number(s):
- 2022/00187629
REASONS FOR JUDGMENT
-
On 11 August 2022, following pleas of guilty, the appellant was convicted and sentenced in the Wyong Local Court of the offences:
H 89597828/1
that at 2:23pm on 20 June 2022 at Kanwal, the appellant did intentionally distribute an intimate image of the victim without consent, contrary to s 91Q(1) of the Crimes Act 1900 (NSW) (what I will sometimes refer to as the ‘image offence’).
H 89597828/2
that at 2:50pm on 20 June 2022 at Kanwal, the appellant did intimidate the victim with the intention of causing him to fear physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
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The maximum penalty for the first offence on indictment is 100 penalty units ($11,000) or imprisonment for 3 years, or both. Summarily, the maximum penalty is 100 penalty units ($11,000) or imprisonment for 2 years, or both.
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The maximum penalty for the second offence is 50 penalty units ($5,500) or imprisonment for 5 years, or both. Summarily, the maximum penalty is 50 penalty units ($5,500) or imprisonment for 2 years, or both.
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For the first offence, the appellant received a Community Corrections Order for 18 months. For the second offence, the appellant received a fine of $500.
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The appellant appeals against the severity of these sentences.
Circumstances of Offending
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The Local Court sentenced the appellant on the basis of the facts outlined in the Police Facts Sheet. At the hearing of the severity appeal, those facts were amplified when the appellant gave evidence.
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The appellant and the victim had known each other for approximately 20 years at the time of the offending. They had a chance encounter in December 2021. Both were keen golfers. In May 2022, the appellant and the victim began exchanging messages that developed into discussion of intimate matters during which…
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- AGLC
- R v Lonergan [2022] NSWDC 423
- Case
- [2022] NSWDC 423
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to address were whether the sentence imposed by the Local Court was manifestly excessive and whether there were any mitigating factors that warranted a reduction in the penalty. The court needed to balance the seriousness of the offence, which involved the non-consensual distribution of an intimate image, against the defendant's personal circumstances and the principles of sentencing proportionality and deterrence. The court also considered the impact of such offences on victims and the importance of upholding the law to protect individuals from privacy breaches.
In reaching its decision, the court examined the evidence presented in the Local Court proceedings and the submissions made by both parties. The County Court found that while the offence was serious, the sentence imposed was not manifestly excessive. The court highlighted the importance of the community's interest in protecting privacy and the need for deterrence. However, it also acknowledged the defendant's personal circumstances, including his otherwise good character and remorse, and the relatively short-lived distribution of the image. Ultimately, the court determined that the original sentence was appropriate and dismissed the defendant's appeal against the severity of the penalty. The court ordered that the defendant's sentence would remain as imposed by the Local Court, with no changes to the penalty.
Orders
Orders of the court
See paragraph 52 – 53
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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