R v Lonergan

[2022] NSWDC 423

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

Kearsley v R [2017] NSWCCA 28

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)
ODPP

Representation:

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          

1. On 11 August 2022, following pleas of guilty, the appellant was convicted and sentenced in the Wyong Local Court of the offences:

1. H 89597828/1

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’).

2. H 89597828/2

1. 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).

2. 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.

3. 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.

4. 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.

5. The appellant appeals against the severity of these sentences.

Circumstances of Offending

6. 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.

7. 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…