R v McCall

Case •

[2022] NSWDC 78

•

24 March 2022

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v McCall [2022] NSWDC 78
Hearing dates: 31 January 2022
Date of orders: 24 March 2022
Decision date: 24 March 2022
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

For orders see [120]

Catchwords:

CRIME - Breach of Child Protection Orders

CRIMINAL LAW - mandatory minimum sentence

SENTENCING - Commonwealth and State offences

SENTENCING — Relevant factors on sentence - multiple offences - maximum penalty – mandatory minimum penalty – objective seriousness – totality – should sentences be accumulated- repeat offender- impact of mental illness -moral culpability reduced

STATUTORY INTERPRETATION – Precedent — Federal legislation - Crimes Act 1914 Cth Migration Act 1958 Cth - Commonwealth minimum penalties - Consistency of operation

STATUTORY INTERPRETATION - Crimes (Sentencing Procedure) Act 1999(NSW) – Are Commonwealth minimum penalties consistent with the NSW State Aggregate sentencing regime?

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)

Child Protection (Offenders Registration) Act 2000 (NSW)

Crimes Act 1914(Cth)

Crimes (Administration of Sentences) Act 1999(NSW)

Crimes (Sentencing Procedure) Act 1999(NSW)

Criminal Code Act 1995 (Cth)

Criminal Procedure Act1986(NSW)

Evidence Act 1995(NSW)

Judiciary Act 1903(Cth)

Migration Act 1958 (Cth)

Cases Cited:

Adamson v R (2015) 47 VR 268

Bahar v R (2011) 45 WAR 100

Balog v ICAC (1990) 169 CLR 625

Barbaro v The Queen [ (2014) 253 CLR 58

Burton v R [2020] NSWCCA 127

Cahyadi v R [2007] NSWCCA 1

CDPP v Munn [2021] VCC 1038

Delzotto [2021] NSWDC 325

Devaney v R [2012] NSWCCA 285

Director ofPublic Prosecutions (Cth) v Beattie [2017] NSWCCA 301

Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73

DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1

DPP v Garside [2016] VSCA 74

Dui Kol v R [2015] NSWCCA 150

Elias v The Queen(2013) 248 CLR 483; [2013] HCA 31

Fleming v White [1981] 2 NSWLR 719

Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49

Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45

Imbornone v R [2017] NSWCCA 144

Jarrold v R [2010] NSWCCA 69

Kannis v R [2020] NSWCCA 79

Karim v R; Magaming v R and others [2013] NSWCCA 23;(2013) 83 NSWLR 268

Lai v R [2021] NSWCCA 217

Lloyd v R [2022] NSWCCA 18

Magaming v The Queen (2013) 252 CLR 381: [2013] HCA 40

MAK v R [2006] NSWCCA 381

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Martin v R [2014] NSWCCA 124

Muldrock v The Queen (2011) 244 CLR 120 at [27]; [2011] HCA 39

Nicholas v The Queen (1998) 193 CLR 173

Nguyen v The Queen [2016] HCA 17

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8

Qatami [2001] NSWCCA

R v Asplund [2010] NSWCCA 316

R v Booth [2017] NSWCCA 144

R v Clinch (1994) 72 A Crim R 301

R v Fuller [2010] NSWCCA 192

R v Herring (1956) 73 WN (NSW) 203

R v Holland (2005) 154 A Crim R 396

R v Hurt(No 2) [2021] ACTSC 241

R v JM, NSWDC, unreported 26/10/2012

R v Large [2021] NSWDC 429

R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294

R v Tector [2008] NSWCCA 15

R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228

Small v R [2020] NSWCCA 216

Stanton v R [2021] NSWCCA 123

Suksa-Ngacharoen v R [2018] NSWCCA 142

The Queen v Pham (2015) 256 CLR 550: [2015] HCA 39

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Weininger v The Queen (2003) 212 CLR 629; [2013] HCA 14

Woods v R [2020] NSWCCA 219

Xiao v R [2018] NSWCCA 4

Texts Cited:

COVID-19 (coronavirus) Response, Corrective Services NSW; Viewed 9/2/2021

Parole Supervision and Re-offending: Wai-Yin Wan, S Poynton, G van Doorn and D Weatherburn (2016) Australian & New Zealand Journal of Criminology v 149, No.4. p 497

Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3

Category:Sentence
Parties: Jack McCall (the offender)
Commonwealth Director of Public Prosecutions
Representation:

Counsel:
Ms L Opper (for the offender)
Mr D Berentss (for Commonwealth Director of Public Prosecutions)

Solicitors:
Legal Aid NSW (for the offender)
File Number(s): 2021/00022271
Publication restriction:

A non-publication order has been made in relation to this matter pursuant to the Courts Suppression and Non Publication Orders) Act 2010 so that the content of communications the subject of the counts, in particular sequence 34, not be further published except for the purposes of legal proceedings. This is because this additional publication would involve further publication of child abuse material.

Pursuant to s15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a child victim. Identifying information has been removed from this version of the judgment to comply with the statute. Pseudonyms have been used for the names of the children and their online avatar names or icons/representative symbols.

sentence

Introduction

  1. From 17 December 2016, Jack McCall, the offender, was subject to Child Protection Prohibition Orders. They followed offences in 2011 that involved his attacks on three young women who were out walking in public places. The offences each had a sexual element. They were “child sexual abuse offences:” s3 Crimes Act 1914(Cth). One incident involved both the detention of, and multiple sexual assaults on, the victim. At the time the offender was still a child of 16: R v JM, NSWDC, unreported 26/10/2012.

  2. From September to December 2020 the offender, via an online chat room, engaged in sexually explicit or romantically inclined conversations with seven children. He gave his victims the impression he too was a child. He also engaged in more extensive online conversations of an explicitly sexual nature with two of those children, who were aged 14 and 15 respectively. He sent a photograph of his erect penis to the 14-year-old. He also transmitted sexually explicit and violent written child abuse material to another adult on at least four occasions.

  3. His conduct led to the following charges being put before this court for sentence: that Jack McCall:

  1. Between about 19/09/2020 and 31/10/2020 use a carriage service in preparation for procuring or planning to procure a person under 16 years of age to engage in sexual activity: s 474.25C Criminal Code Act 1995 (Cth); (seq 27).

  2. Between about 18/09/2020 and 21/09/2020 did use a carriage service to transmit a communication to another person under 16 with intent of making it easier to procure that person to engage in sexual activity and he was a person with has prior conviction for a child sexual abuse offence: s 474.27(1) Criminal Code Act (Cth); s16AAB(2) Crimes Act (Cth); (seq 32).

  3. Between about 18/09/2020 and 21/09/2020 did use a carriage service to transmit a communication to another person under 16 with intent of making it easier to procure that person to engage in sexual activity & he was a person with has prior conviction re child sexual abuse offence s 474.27(1) Criminal Code Act (Cth); s16AAB(2) Crimes Act (Cth); (seq 34).

  4. Between about 05/10/2020 and 08/12/2020 in he did transmit, make available, publish, distribute, advertise or promote material and the person does so using a carriage service and the material is child abuse material and the person had prior convictions regarding child sexual abuse offence: s 474.22(1) Criminal Code Act (Cth)/ s16AAB(2) Crimes Act (Cth); (seq 35).

  1. The s 474.25C Criminal Code Act (Cth) 1995 offence has a maximum penalty of 10 years imprisonment. The s 474.27(1) Criminal Code Act (Cth); s16AAB(2) Crimes Act(Cth) offences has a maximum penalty of 15 years Imprisonment with a minimum term of 4 years Imprisonment. So does the s 474.22(1) Criminal Code Act (Cth)/ s16AAB(2) Crimes Act (Cth) offence.

  2. There are two related NSW State offences before the court on a 166 Criminal Procedure Act1986 Certificate pursuant to s 13 & s 17 Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). That Jack McCall:

  1. Between about 18/09/2020 and 31/10/2020 did, being a person subject of a child protection prohibition order, without reasonable excuse contravene a prohibition specified in the said child protection prohibition order, namely: condition 4 ‘Actively communicate or attempt to communicate (directly or indirectly) with any person under the age of 18 years. Unless it is a child nominated on their Child Protection register file and parent/guardian/carer are aware of communication and registrable status of the respondent: s 13 Child Protection (Offenders Prohibition Orders) Act 2004 (NSW).

  2. Between about 21/02/2020 and 25/01/2021 did, without reasonable excuse, fail to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW): s17 Child Protection (Offenders Prohibition Orders) Act 2004 (NSW).

  1. Those offences have a maximum penalty of 5 years but as they are dealt with on a s166 Criminal Procedure Act 1986 Certificate the maximum available penalty is two years.

  2. Guilty plea for all the offences were entered in the Local Court.

  3. A court sentencing for Commonwealth offences cannot pass a sentence of imprisonment unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate: s17A (1) Crimes Act(Cth). However, where a court sentences for Commonwealth child sex offences, and as here the offences occurred after 23 June 2020, there must be a specified period of imprisonment imposed unless the court is satisfied that there are exceptional circumstances: s 20(1)(b) Crimes Act (Cth). That later provision necessarily overrides s s17A. It is not in dispute that sentences involving some full-time custody must be imposed.

Agreed Facts

  1. There are agreed Facts before the Court. They include tables and summaries of conversations that found each Criminal Code Act (Cth) offence. A plain text copy of the conversations is Exhibit B. The conversations set out for sequences 27, 32 and 34 are graphic. In a real sense their publication would of itself perpetuate the very conduct sought to be prohibited by the Criminal Code Act (Cth).

  2. There is no fine line here. These lengthy and graphic conversations should not be published in this judgement. My summary must however attempt to convey the level of moral culpability of the offender and provide some transparency, so some descriptive material must be included: see Director ofPublic Prosecutions (Cth) v Beattie [2017] NSWCCA 301 at [5].

  3. At all relevant times the offender was subject to a child protection order that he not communicate with any person under the age of 18 or use any form of social media or have an active account. His obligations under that order were last explained to him on 21 May 2020.

  4. In February 2021 NSW police received information the offender was in breach of his obligations. He was using a web platform. Copies of his “threads” were obtained. His username was “intrepid.” He was pretending to be aged between 14 and 17. Each communication here breached those orders.

  5. The facts detail his communications with:

  • Each of the five children - Sequence 32.

  • Two children specifically - Sequence 27 and 34.

  • An adult where fictional fantasy child abuse material was sent - Sequence 35.

Sequence 11

  1. The conversations the subject of sequences 32, 27 and 34 contravened Child Protection Orders imposed in 2016 for 5 years. The offender last received notice of his obligation pursuant to the order in February 2020.

Sequence 19

  1. The conversations used online accounts and usernames in breach of the offender’s Child Protection Order reporting obligations. Other accounts and usernames were discovered by police when they arrested McCall. Their creation and use also breached his Child Protection Order reporting obligations.

Sequence 32 & Sequence 11.

  1. On 19 September 2020 the offender initiated contact with “S”. He misrepresented himself to “S” by sending a photo, showing his much younger self holding a kitten. By pretending to be just a little older than “S” and asking about her boyfriend he was able to introduce sexual topics, leading to them exchanging explicitly sexual details about what he would do to her and she to him. He sent a photograph of an erect penis to her. The conversation started about 1:10 am and concluded at 3:51am.

Sequence 27 & Sequence 11

  1. On or about 14 October 2020 the offender initiated contact with “♥” then 15. Pretending to be 14 he tried to insinuate himself into a chat where girls were looking for boyfriends.

  2. On 18 October 2020 the offender responds to contact from “♥”and begins a series of short chats over a few days designed to encourage “♥” to treat him as a same age boyfriend.

  3. In September 2020 the offender engages in a chat with “A” (aged 14) pretending to be 17. He immediately asks her sexual questions and sends her photographs of himself.

  4. In October 2020 the offender pretending to be 16 engages in preliminary chats with “N” aged 15.

  5. In October 2020 the offender, pretending to be 15, engaged in a preliminary short chat with “SL” aged 14 but she did not respond to his subsequent messages.

Sequence 34 & Sequence 11

  1. On 14 October 2020 the offender pretending to be 14 engaged in chats with “YC” aged 15. They exchanged photographs. The chat quickly moved to sexually explicit conversations about what each would do to the other. Topics included sadism and personal degradation. That chat lasted over 2 hours. Seven follow up messages to “YC” are not responded to.

Sequence 35

  1. Between October and December 2020, the offender engaged in online communications with “Axe” (aged 20) during which explicitly sexual stories involving a 7 year old character are told. The stories are child abuse material written for their own prurient interests.

Objective seriousness

Breach offences

  1. Multiple platforms were used by the offender. He masked his true identity. He was well aware of his obligations. His breaches enabled the commission of offences against a number of children and the community in general.

  2. Any conduct involving deliberate disobedience of a court order must be treated as serious. Such offending has the effect of undermining the authority of the courts and the protection to children inherent in such orders. Such breaches should ordinarily be separately punished from an offence occurring at the same time, having regard to the requirements of the totality principle: Suksa-Ngacharoen v R [2018] NSWCCA 142 at [132]; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57.

Carriage service offences

  1. The lengthy maximum penalties, and where applicable mandatory minimum sentences, must be taken as a legislative direction as to the gravity of that offending and the framework within which sentences are to be set. These directions were reinforced by the recent amendments.

  2. A fundamental premise for the Commonwealth child sex carriage service offences is that every act involving the sexual exploitation of a child is serious, whether that exploitation is physical or as here, by using a carriage service: Adamson v R (2015) 47 VR 268; Kannis v R [2020] NSWCCA 79.

  3. The internet can be used as a highly effective medium through which to exploit and sexualise vulnerable children, who often have unsupervised access to it. Offenders can employ techniques that exploit a child’s curiosity and vulnerability to trickery and persuasion. Children are vulnerable to such predatory criminal communications from (generally much older) men who use them for purposes of their own sexual gratification: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [89]; Small v R [2020] NSWCCA 216; R v Asplund [2010] NSWCCA 316; R v Tector [2008] NSWCCA 15.

  4. The harm done to child victims of carriage service or cybersex offences can be no less serious than in-person offences. It is well recognised that such offences can have profound and deleterious effects upon victims for many years, if not the whole of their lives: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3; Stanton v R [2021] NSWCCA 123.

“The legislature, in enacting the provisions prohibiting the use of a carriage service to engage in sexual activity with a child, sought to implement society’s detestation of the practice of encouraging children to engage in inappropriate sexual behaviour, and to protect the child from immature decisions;” Adamson at [27].

  1. Appellate courts have stressed the need to give primacy in sentencing for such matters to the need for general deterrence and denunciation, as it is a form of offending that is difficult to detect: R v Porte [2015] NSWCCA 174 at [52]: Watson at [89].

  2. The Commonwealth Parliament has scaled cybersex crimes by the nature of the activity prohibited and allotted a variety of maximum, and in some instances minimum, penalties. They are indicators of the relative seriousness of an offence: Watson at [89].

  3. Here I am dealing with three types of cybersex offending:

  1. Use a carriage service in preparation to procure a person under 16 to engage in sexual activity: s.475.25C Criminal Code Act (Cth); sequence 27.

  2. Use a carriage service to transmit communication with a child with intent: s.474.27(1) Criminal Code Act (Cth); sequences 32 and 24.

  3. Using a carriage service to transmit child abuse material; 474.22 (1) Criminal Code Act (Cth) sequence 35.

  1. The actual character and extent of the crime itself must be also considered as a guide to where on the scale of seriousness an individual offence sits. A court can consider:

  1. The nature of conduct; including the topics raised, the methods used to gain the child’s trust, any abuse of that trust, with requests for privacy.

  2. The extent of any manipulation of the child.

  3. The nature of any demands made of the child and the extent the child became compliant with the requests.

  4. The number of contacts - from the occasional to a bombardment of indecent suggestions.

  5. Whether graphic, intimate or sexual images were sent to the child.

  6. Whether images were solicited from child.

  7. Whether images were solicited sent by the child.

  8. Whether the communications were accompanied by other acts such as gifts or money.

475.25C Criminal Code Act (Cth)

  1. Here the use a carriage service in preparation is a “rolled up” charge involving 5 children: s.475.25C Criminal Code (Cth); seq. 27. This process was accepted by the defence; It was entirely appropriate: see Hamzy v R (1994) 74 A Crim R 341 and Jadron v R [2015] NSWCCA 217.

  2. The communications took place over 2 ½ months. The offender knew the age of each child. They were targeted because of their age. The offender pretended to be a similar aged child to deceive them and gain their trust. As the acts were preparatory there was little actual manipulation and no demands were made of any child. Each communication was relatively brief, but the offender did persist with some contacts in trying to re-establish communication. Many features which make such offences very serious were absent.

s.474.27(1) Criminal Code Act (Cth)

  1. Each of the s.474.27(1) Criminal Code (Cth); (sequences 32 and 24) were more serious. Not only was a pretence used to gain the child’s trust but the offender soon turned the chats to explicit sexual topics, with accompanying requests for nude photographs. Although they were resisted by the children, in one instance he sent a child a photograph of his penis. The sole purpose of his chats was his sexual gratification. Each chat was extensive extending over two hours.

474.22 (1) Criminal Code (Cth)

  1. Actual children were not used in the transmit offence: 474.22 (1) Criminal Code (Cth) sequence 35. But the offence “is committed by the transmission of the material that qualifies as child pornography. The seriousness of the offence of transmission is necessarily informed by the nature and content of the material itself:” Burton v R [2020] NSWCCA 127 at [36]. My emphasis. The material sets out, in graphic and explicit terms, significant sexual activity involving a very young, if imagined, child and his family. The communications included descriptions of cruelty and physical harm. The offender’s purpose seemed to be for his and his online friend’s own prurient benefit, but the communications transmitted displayed no planning, organisation or sophistication.

  1. It was a fantasy communication but the policy behind criminalising acts involving fantasy is the need to shield the community from injury and children from exploitation and the overall prevention of harm: R v Holland (2005) 154 A Crim R 396. In Jarrold v R [2010] NSWCCA 69, Howie J, expressed the opinion that a sentencing court should not distinguish between fantasy communication and the dissemination of actual images involving real children. I take a different view. As Beech-Jones J (as he then was) noted in Martin v R [2014] NSWCCA 124 at [52] - [54], each case depends on its facts. Fantasy communications while they remain criminally serious generally could not be regarded as serious as crimes involving actual children. However, that said, such fantasies produce a distorted view of reality in which sex with children is somehow seen as appropriate.

  2. While this communication did not involve the depiction of real children it was still a serious breach of the law. It was private communication between two adult men. Others might not be likely to view it but there remained the obvious potential for its recipient to disseminate it: Martin at [52] - [54]. Overall, however, it was an asinine, rambling, almost incoherent stream of consciousness with crude, violent, sexual imagery, some involving children.

Maximum and minimum penalties

  1. The Commonwealth offence of doing an act in preparation for procuring a person under 16 to engage (sequence 27) has a maximum penalty of 10 years. The remaining Commonwealth matters (sequences 32, 34 & 35) each have a maximum penalty of 15 years with minimum penalty of 4 years imprisonment. All the offending occurred after the minimum penalty provisions commenced.

  2. The State matters (sequences 11 & 19) each have maximum penalties of 5 years imprisonment but if dealt with summarily on a Certificate the maximum term available is 2 years.

  3. Careful attention to the maximum penalty fixed by Parliament is always required. It is a sentencing measure to be balanced with all other relevant factors. “Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks:” Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]; Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. However, it is not appropriate just to look first to a maximum penalty and then proceed by way of making a proportional deduction from it: Markarian at [30] and [31].

Minimum penalty

  1. It is not in dispute that McCall’s earlier convictions are child sexual abuse offences. Sequences 32, 34 and 35 all fall within the definition of a “Commonwealth child sexual abuse offence:” s 3 Crimes Act(Cth). Accordingly, I need to consider s 16AAB and s16AAC of the Crimes Act (Cth), and the minimum sentencing regime there set out. In Markarian the joint judgment cited a respected text:

“A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate]."

  1. The same principle must apply where a minimum is fixed. A statutory minimum is a dictate as to the seriousness of an offence that a sentencing court cannot ignore: Bahar v R (2011) 45 WAR 100 at [53] – [54]. Where such a clear direction is given by Parliament appellate courts have stressed the need for sentencing judges to give primacy to the need for general deterrence and denunciation: R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174; R v Fuller [2010] NSWCCA 192 at [26]; Asplund at [5].

  2. Both parties urged different approaches to these new provisions. Both provided authorities going back to earlier decisions applying the mandatory minimum sentences first introduced in s 233C Migration Act 1958 (Cth).

  3. Mr Berents, for the Commonwealth Director of Public Prosecutions (CDPP), submitted succinctly that I was bound to apply the decision and more importantly the process of reasoning adopted by the Western Australian Court of Appeal in Bahar v R at [55]. That decision was accepted by the High Court of Australia in Magaming v The Queen (2013) 252 CLR 381: [2013] HCA 40. And by a five judge bench of the NSW CCA in Karim v R; Magaming v R and others [2013] NSWCCA 23;(2013) 83 NSWLR 268. He submitted that if I was attracted to a contrary opinion that attraction could be assuaged by following the reasons and reasoning of Justice Mossop in R v Hurt(No 2) [2021] ACTSC 241.

  4. The Commonwealth Director argues that the minimum is more than a legislative direction as to the seriousness of the offence rather the statutory maximums and minimums “dictate” the seriousness of the offence for the purposes of s 16A of the Crimes Act(Cth) and “set the floor and ceiling respectively, within which the judge has a sentencing discretion to which the general principles are to be applied;” Bahar at [55]: CDPP submissions at [36].

  5. Ms Opper, for McCall, put forward reasons why the approach in Bahar is not the correct approach to the application of ss 16AAA-16AAC. She adopted Justice Mossop’s analysis in Hurt at [76]-[92]. She submitted Judge Grant’s reasons in Delzotto [2021] NSWDC 325 were persuasive and that Bahar was not binding authority because:

  1. Section 16AAC allows for a reduction in penalty below the minimum sentence.

  2. The reasoning in Bahar was based on a provision which did not allow for such reduction.

  3. The reasoning in Bahar rested on the basis that a concrete ‘floor’ was set by the minimum sentence and that all other sentences would fall between that floor, up to the ‘ceiling’ being the maximum penalty.

  4. The addition of s16AAC in the subject provisions now changes that position, resulting in a lower penalty than the pre-determined ‘floor’ being available to an offender in certain circumstances as provided for in s16AAC.

  5. The effect of the applying the approach in Bahar to the subject provisions creates an ambiguity about whether the reduced penalty is the ‘floor’ or whether, as stated in Bahar, the statutory minimum is the ‘floor’. There is a clear need to have a defined starting point in the sentencing of all offenders because a penalty needs to be proportionate to its criminality, appropriate in all of the circumstances, and for the sake of parity between like offending and offenders and for the sake of consistency in sentencing.

  6. The resulting position, if Bahar is applied to the subject provisions, is inconsistent with those stated principles and thus the reasoning should be rejected.

  7. The reasoning in Bahar, that the s16 factors are to be applied after using the statutory minimum as the base for all offenders, is incompatible with the addition of the 16AAC provisions. For example, one offender who is deserving of the penalty equivalent to the ‘mid-point’ should be sentenced in the same fashion as another like offender. However, applying Bahar it is unclear whether that mid-point should be calculated using the statutory minimum in 16AAA and 16AAB or as reduced by 16AAC after application of the s16 factors of plea and assistance.

  8. Due to the different nature of the provisions considered in Bahar, whilst alluding to the problem created by minimum sentences and allowing for discounts, did not address the problem of a provision such as 16AAC creating what is in effect, a moving ‘floor’ in terms of an assessment of objective seriousness.

  1. The construction of s 16AAB and s 16AAC and the minimum sentencing regime they create for second or subsequent child sexual offences was first considered by this court by Judge Grant in Delzotto. That decsion has been followed by other Judges of this court and the Victorian County Court: R v Large [2021] NSWDC 429; CDPP v Munn [2021] VCC 1038. I am told that a CDPP has appealed Delzotto and that appeal is listed before the Court of Criminal Appeal (CCA) shortly. I was not asked to further adjourn this sentence to await that decision.

  2. For reasons that will soon become clear I do not intend to go into a lengthy exposition of my reasons for accepting the CDPP’s position. For good or ill appellate courts have taken the view that the Migration Act provisions are valid and a proper exercise of parliament prerogative which the courts must respect and obey. If Parliament chooses to place a duty on the court to impose a specific punishment, the court must obey the relevant statute, assuming it is valid: Magaming. The High Court in Magaming rejected the submission mandatory minimums were “arbitrary and non-judicial” punishments:

“It is also well-established that legislation does not impermissibly interfere with the exercise of Chapter III power simply because it curtails, or even removes entirely the Court’s sentencing discretion”: Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49.

  1. Magaming proceeded on the basis that the mandatory minimum penalty “fixe[d] one end of the relevant yardstick” picking up the term ‘yardstick’ used in Markarian: Magaming at [48]. Like drug dealers, who still talk in pounds and ounces, some Judges still use imperial measures abandoned last century by most in the community.

  2. In Delzotto Judge Grant, correctly, went to the words of the section and declined to read into them parts of the explanatory memorandum stating that the minimum sentence is only reserved for cases at the bottom of the spectrum. Here the CDPP picked up that point. The did not rely on explanatory memorandum to the Act introducing the changes. A similar position was taken in Hurt: Hurt at [87]-[89]. Their focus was on the application of principle and the wording of the Act in the light of binding precedent.

  3. Judge Grant was also correct to note that as the new Crime Act (Cth) provisions differ from those in the Migration Act and that where two alternative constructions of legislation are open that which is consonant with the common law is preferred: Delozotto at [31] to [33]; Balog v ICAC (1990) 169 CLR 625 at 635 to 636. That is obvious but, respectfully, the import of both Acts is the same. I cannot accept His Honour’s proposition that the construction of the provisions of the Migration Act by intermediate appellant courts is not binding on this Court.

  4. Bahar is authoritative in relation to the operation of the mandatory sentencing provisions of the Migration Act(Cth). It is abundantly clear that the new Crimes Act (Cth) provisions came after and were drafted in response to what fell from the Western Australian Court of Appeal in Bahar. A process of reasoning accepted by the NSW CCA in Karim and others. The legislature accordingly must be taken to have understood that the provisions of ss 16AAA-16AAC would need to be read with s 16A Crimes Act(Cth) so as to create a coherent whole, rather than having the mandatory minimum sentence provisions read in a manner which was not consistent with the unqualified terms of s 16A: Hurt at [71].

  5. While obviously the legislation is different, the relevant statutory command; that is, to impose a sentence of “at least” a specified number of years, is the same in the Crimes Act (Cth) as it is in the Migration Act (Cth): Hurt at [94].

  6. It is not open for me, as a single judge, to depart from that approach. I am bound to follow the approach articulated in Bahar and apply it in the context of s 16AAB of the Crimes Act (Cth). As a sentencing judge I am bound by a fundamental principle that places an obligation on judges of the District Court to follow binding decisions of superior courts and the need for submission to that higher authority: Fleming v White [1981] 2 NSWLR 719 at 726.

  7. Judges must apply the laws enacted by Parliament whether they like them or not: Karim, Allsop P at [121] – [123]; Nicholas v The Queen (1998) 193 CLR 173, Brennan CJ at [37]; Magaming, Keane J at [105] - [106].

  8. I accept that there is persuasive force in the dicta of Adams J and McCallum J (as she then was) in Dui Kol v R [2015] NSWCCA 150 and Judge Grant’s reasoning in Delzotto. No judge could approve of legislation which takes away a sentencing discretion, as, “…sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.’’ The Queen v Pham (2015) 256 CLR 550: [2015] HCA 39 at [46]; Hili v The Queen, (2010) 242 CLR 520; [2010] HC 45. In such situations a judge should try to avoid disapproving epithets but I note that the recent changes to the Crimes Act(Cth) fit poorly with long standing provisions and common law principles. The new sections create ambiguities and are inconsistent with other sentences practices such as aggregate sentences: see below at [99]- [107].

  9. I can only trust that appellate courts will recognise the force of the criticism of their present approach and reverse it. Until then I must apply law and principle and a most important principle is obedience to precedent and the decisions of courts higher in the hierarchy. Judges at first instances must however apply settled principle and should do so consistently.

  10. Justice Mossop accepted and applied these principles in Hurt. His Honour persuasively and succinctly set out why an alternative approach to the Bahar decision was the sounder, fairer and more principled approach: Hurt at [77]- [93]. I gratefully accept and adopt that careful exposition of principle. I also accept the force of those reasons, which were rearticulated by Ms Opper. I am compelled however to reach the same conclusion as Justice Mossop, which I respectfully repeat:

“Notwithstanding the conclusion that I would have reached in the absence of the decision in Bahar and the cases which have followed it, I cannot find a principled basis upon which to depart from those decisions.”

  1. I note that here, as in Hurt, the CDPP did not contend that the reductions allowed by s 16AAC(2) and (3) Crimes Act(Cth) only applied if the penalty imposed is the minimum penalty permitted. That was a proposition stated in the explanatory memorandum but does not fit with the operation or wording of the new provisions.

Record

  1. McCall is not entitled to the leniency often given first offenders. To the contrary his record demonstrates that this offending is not an uncharacteristic aberration. It demonstrates his continuing disobedience towards the law. While prior criminal history cannot result in a sentence which is disproportionate to the gravity of the offences for sentence here a more severe penalty is warranted with additional focus on retribution, deterrence and the protection of society: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477

  2. For the 2011 matters the offender was sentenced to a total term of 5 years 9 months, with a minimum term of 3 years 9 moths. He was released to parole in March 2016.

  3. In October 2016 police found he had used a mobile phone to access child pornography. He spent a few months on remand before being placed on a 4-year bond. He did not keep to the terms of that bond. It continued for part of the period of offending behaviour until 14 November 2020. Its breach is an aggravating factor on sentence.

  4. In December 2019 he was sentenced in the Local Court for beaching child protection orders and possession of child pornography. He was in custody from 18 October 2019 until being released to parole on 17 February 2020.

  5. He was arrested for the current matters on 25 January 2021 and has been in custody ever since. He reports struggling in custody. He feels unsafe and is on protection. As a consequence, he is more lonely and isolated than ever.

COVID

  1. When I come to synthesise an appropriate sentence, I cannot ignore the impact of the COVID pandemic. COVID-19 has entered our gaols. If it takes hold as he is a Commonwealth offender, he will not be eligible for early parole: s276 Crimes (Administration of Sentences) Act 1999 (NSW).

  2. In custody he has been unable to have face to face visits with family. He has and will be subject to the considerable restraints, lockdowns and lack of access to work, programmes and visits brought in to reduce the chance of infection entering or spreading. Programs from external providers are restricted. He is presently in quarantine having contracted COVID,

  3. Those restrictions will continue for some time: COVID-19 (coronavirus) Response, Corrective Services NSW; Viewed 9/2/2021.

  4. In Dr Dornan’s opinion, the inability to see family members due to COVID restrictions can have a serious impact on any inmate’s health and wellbeing this is particularly so for inmates, such as McCall, who already have limited social interactions and social skills: see Exhibit 1.

Subjective case

  1. The sentence proceedings in 2012 revealed that, even as a child, the offender had long-standing behavioural issues. At 13, he displayed inappropriate behaviour such as public masturbation and accessing pornography. Drug treatment and positive interventions by his parents and teachers had some success.

  2. At the time he was diagnosed by Dr Furst, a respected forensic psychiatrist, as having Asperger’s Syndrome. Dr Furst explained in his report that Asperger’s Syndrome is a developmental disorder that affects how the brain processes information. It can lead to inappropriate, immature or delayed understanding of sexual codes of conduct and can sometime result in sexually inappropriate behaviour.

  3. Dr Doran, a forensic psychologist, who saw the offender in January 2022, notes that despite supportive parents he was a socially isolated child who was unable to engage with his peers and suffered from diminished self-esteem. He reports McCall has some insight into his childhood behaviour gained from his diagnoses of Autism Spectrum Disorder (ASD) and Attention Deficit and Hyperactivity Disorder (ADHD).

  4. On his release from juvenile detention McCall became “independent by default” as he was prohibited from visiting his parent’s home due to its proximity to a school. Dr Doran reports he responded well to the discipline of detention and was able to complete years 11 and 12 by distance education. The offender has held a job in a call centre for a short period and studied games programming, until he could no longer afford the fees. Since his release he has struggled to find stable accommodation. He spent time in Community Offender Support Programme accommodation, but he did not feel safe there. He has had little opportunity given his incarceration as a teenager to lead a normal life in the community. At the time of the offending, he had retreated to living in the “on-line world.”

  5. Mr Randall, now provides fortnightly offence focused treatment via AVL. Dr Dornan reports McCall has been challenged by this treatment. Dr Dornan notes that this offending occurred in the context of McCall’s long-term history of ASD, ADHD, poor mental health and low self-esteem. He appears to have developed maladaptive coping strategies and his offending behaviour has been reinforced by online relationships with children and adults who have “normalised” a sexual interest in peri and post pubescent females. Dr Doran notes to date McCall has, given his Autism traits, been given limited support.

  6. Dr Doran concludes that given McCall’s many and long-term problems his ability to appreciate the consequences of his actions would have been reduced. He is however encouraged by McCall’s positive engagement with Mr Randall. If he continues to take the help offered his risk of re-offending may be reduced.

  7. It is also his opinion that given McCall’s ASD, prison will be more of a burden on him than on someone who does not have that condition. Dr Dornan recommends gaol programmes such as EQUIPS Foundation, EQUIPS Aggression and a SOP-Custody Based Management Programme but he cautions that the sort of psychological treatment and long term therapeutic intervention McCall needs cannot be properly accessed in gaol.

  8. Mr Randal, McCall’s treating psychologist, notes that he has difficulty correctly reading social cues, processing emotions and literal thinking. He requires support on many levels, some as simple as understanding instructions from corrections officers. As a consequence, he is wrongly accused of “flouting rules.” Mr Randall pointed out McCall has commenced a program of treatment. To date he has fully engaged and has begun to develop insights into his behaviour and how he can develop appropriate strategies to address that behaviour.

  1. Here the Commonwealth Director also draws my attention to the principle that although statements made to third parties are generally admissible in sentence proceedings, courts should exercise very considerable caution in relying upon them where there is no evidence given by the offender. In many cases such statements can be given little or no weight Imbornone v R [2017] NSWCCA 144 at [57].

  2. In Lai v R [2021] NSWCCA 217 at [79] the Court of Criminal Appeal (CCA) reinforced what was said in Qatami [2001] NSWCCA 353 and Imbornone:

“Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court.”

  1. It is important to note however that the CCA was not saying unsworn statements were inadmissible. What was said in Qatami is not a statement of sentencing principle: Lloyd v R [2022] NSWCCA 18. The comments were directed to matters that were “in dispute.” Most sentencing proceedings do not involve some general joinder of issue between prosecution and offender. Calling and testing evidence is required if an asserted fact is controverted or if the judge was not prepared to act on the assertion.

  2. Reasonable minds will disagree when assessing the weight that must be given to matters raised in proceedings particularly those to which the Evidence Act 1995 does not apply. Where the Evidence Act does not apply a judge does not ignore the rules the policy and rationale underlying those rules: R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256 per Evatt J.

  3. There is no reason here to lessen the effect of the opinion of the professionals whose reports were before me. The reports do not simply parrot statements of the offender; they are not relied on to show remorse or challenge facts for sentence. To the contrary the opinions appear soundly on history and admitted without cross-examination that is the very nature of the professional expertise being deployed. They were admitted after compliance with District Court Criminal Practice Note 20, cl 15. I can here properly take into account the considered opinions of experts with clinical experience in taking psychosocial histories when assessing their significance to the present matter: Lloyd; Devaney v R [2012] NSWCCA 285.

Rehabilitation

  1. Ms Opper urged me to avoid imposing a “crushing” sentence. The totality principle recognises that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing: MAK v R [2006] NSWCCA 381 at [15]-[17]; R v Clinch (1994) 72 A Crim R 301 at 306.

  2. What is a proportionate sentence or what might be seen as a “crushing” sentence can depend on the perspective of the observer; whether they are a victim, community, appeal court or offender: Director ofPublic Prosecutions (Cth) v Beattie.

  3. An accumulation of a number of lengthy periods of imprisonment, as urged by the CDPP here, can involve a disproportionate level of punishment if the overall period could offend some instinctive sense of fairness and justice (sometimes referred to as mercy) or the need to avoid crushing all hope for a productive life on release. The value of any steps already taken to promote rehabilitation (an important consideration in sentencing) may diminish: Beattie at [26]-[45]. If a prisoner abandons hope, their chances of rehabilitation may be diminished. They may no longer cooperate with gaol authorities or those providing psychological treatment. Here the evidence requires a conclusion that after he has served the minimum period his crimes demand that the offender and the community would benefit from treatment and assistance best provided in the community. That must be supplemented by a lengthy period of supervision and monitoring.

  4. Offenders who received parole supervision upon release from custody take longer to commit a new offence and are likely to commit a new indictable offence and committed fewer offences than offenders who were released unconditionally into the community: Parole Supervision and Re-offending: Wai-Yin Wan, S Poynton, G van Doorn and D Weatherburn (2016) Australian & New Zealand Journal of Criminology v 149, No.4. p 497.

Mental Illness

  1. It is accepted that the offender’s mental condition has impacted on him throughout his life. While it is not suggested that his underlying conditions were directly causative, they have and continue to have an impact on him. This has a number of consequences that are, to an extent, intractable. They mean that prison will weigh more heavily on him than for a prisoner without his conditions. They mean his rehabilitation will be problematic. There is a need for some understanding, as while he clearly knew what he was doing was wrong, he had little capacity to make rational and moral decisions in his own interest let alone consider the interests of others and the community. While his moral culpability can be reduced, his repeated offending and lifelong diagnosis mean, as the CDPP suggest greater weight must be placed on community protection: DPP v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]; CPP Submissions [73].

  2. Community protection can be achieved in many ways. Here the offender must be removed from the community for a period. Here it is hoped that time will encourage him to keep to his treatment regimens out of fear he will be returned to gaol if he reoffends. Community protection can best be achieved, if with the assistance he needs, McCall does not reoffend on release.

Other Submissions

  1. Mr Berents, submits that only a substantial period of imprisonment could meet all the purposes of sentencing, particularly those purposes that relate to specific and general deterrence. The Commonwealth Director does not concede any matter falls near the bottom of the range rather it is submitted that in these circumstances, the appropriate head sentence should fall above the mandatory minimum period of imprisonment and below the maximum penalty for the offences even when subjective sentencing factors such as the offender’s plea of guilty are incorporated in the instinctive sentencing synthesis: CDPP submissions at [46].

  2. Further, based on the offender’s breach of his parole and ongoing breach of his reporting obligations it is submitted that the court would have serious concerns about his capacity to comply with any court imposed obligations.

  3. Ms Opper, for McCall, accepts there must be sentences of full-time imprisonment but asks for individualised sentences that reflect not just what was done but McCall’s specific personal circumstances, in particular his ASD.

  4. I hope this judgment does justice to those submissions. I do not intend to explicitly refer to each of the matters raised but I have considered and addressed them in coming to my determinations as to the appropriate sentences. Both counsel offered suggestions as to where in some notional range each offence lay. A process of comparing and contrasting the actual offence with an abstract one is not necessary and for my own part unhelpful.

  5. Not every matter has to be, or can be, fitted into categories. Human behaviour and characteristics are too varied. The sentencing exercise involves: “a synthesis of competing features, which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money”: Weininger v The Queen (2003) 212 CLR 629; 2013] HCA 14. Ultimately, I must identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors relevant to offending behaviour and the offender: Markarian; Muldrock v The Queen (2011) 244 CLR 120 at [27]; [2011] HCA 39; Hili v The Queen.

Other cases

  1. I have had regard to statistics and the other cases to which I have been referred. The consistent application of principle must always be considered. The guidance offered by appellate courts and other decisions is always welcome. The pattern of past sentences for an offence may serve as a yardstick or help establish a range, however each case and each offender is individual: Hili v The Queen, Barbaro v The Queen [ (2014) 253 CLR 58 at [74] “…sentencing is a discretionary judgment and that the mix of factors that must be weighed in determining the appropriate sentence will never be precisely the same as in a past case or cases.’’ TheQueen v Pham at [47].

Structure of Sentence

  1. I will impose fixed terms for the State matters, as any parole period would be subsumed by the Commonwealth sentences. The State matters have many common elements and are also related to and aggravate the Commonwealth matters. The need to avoid double counting factors against the offender requires considerable concurrence. The terms fixed equate to the minimum term that must be spent in custody. That said, there must be some independent punishment for the breach offences.

  2. Section 19(5) Crimes Act(Cth) carries a legislatively imposed a presumption in favour of cumulative sentences when sentencing an offender for multiple Commonwealth child sex offences or a mixture of Commonwealth child sex offences and state or territory registrable child sex offences. I must give reasons if the sentences are not fully accumulated: s19(7) Crimes Act(Cth).

  3. Some, but not total, accumulation between the offences is warranted to reflect the different nature of the offences and the two discrete victims of the s. 474.27(1) offending. Total accumulation is not warranted as many or the purposes of sentencing overlap: Cahyadi v R [2007] NSWCCA 1 at [27]; Nguyen v The Queen [2016] HCA 17 at [36] – [40]; Pearce v The Queen at [40]. Further, if the sentences were wholly accumulated, not only would the offender be doubly punished but his time in custody would be grossly disproportionate to the seriousness of his offending. Additionally, removing him from the community for an extended period would jeopardise his chances of learning and practicing the skills necessary for normal community life. It would delay his engagement in rehabilitation and community based psychological programmes better suited to dealing with his underlying psychological problems.

  4. Given there are four Commonwealth matters for sentence in the ordinary course I would follow the current practice in NSW and impose an aggregate sentence: s 68 of the Judiciary Act 1903 (Cth): Director of Public Prosecutions (Cth) v Beattie at [141]-[146]; Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8; Woods v R [2020] NSWCCA 219 at [87]. Aggregate sentences, while allowing for a fair, just, proportionate or appropriate sentence for the whole of the offending avoid the somewhat arbitrary process of adjusting individual sentences or adjusting the degree of concurrency: Beattie, Basten JA at [26].

  5. However, the wording of the new amendments that I must apply create some potential for ambiguity that could undermine their proposed impact if an aggregate sentence is imposed. Section 16AAA Crimes Act(Cth) requires “that the court must impose a sentence of imprisonment of at least the period specified in column 2;” that must impose the minimum. (Emphasis added). When the aggregate sentencing procedure in 53A Crimes (Sentencing Procedure) Act (NSW) is adopted only the aggregate sentence is imposed. A putative sentence must be indicated for each offence aggregated but that putative or indicated sentence is not “imposed.”

  6. Similarly, with an aggregate sentence there is no need to indicate whether and how the sentences are to be served cumulatively partly, cumulatively, or concurrently as required by s 19 Crimes Act(Cth).

  7. The putative or indicated sentence do however have to be “the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence:” s53A (2)(b) Crimes (Sentencing Procedure) Act(NSW). To date compliance with Part 1 B Crimes Act (Cth) has been treated as analogous with the bracketed portion of that section.

  8. Section 16A Crimes Act(Cth) is in in broad terms: “In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence:” (Emphasis added).

  9. There is no necessary inconsistency with a putative sentence falling within that section as it would be made by an order of the Court. Section 16AAA however is more specific; “Subject to section 16AAC, if a person is convicted of an offence described in column 1 of an item in the following table, the court must impose a sentence of imprisonment of at least the period specified in column 2 of that item:” (Emphasis added).

  10. It is a stretch to read “impose a sentence” into the aggregate sentence procedure provisions that allow for an indicated or putative sentence and specifically require that those sentences not be imposed.

  11. If however, Courts sought to avoid the operation of the new provisions by imposing aggregate sentences this would create unacceptable inequalities in outcomes between those offenders who benefitted from the NSW aggregate sentence provisions and those who could or did not.

  12. One solution, when an Aggregate Commonwealth sentence to which the minimum sentence regime applies is imposed, is to apply the minimum sentence provisions (flawed though they are) when indicating the putative Commonwealth sentences, as s53A (2)(b) Crimes (Sentencing Procedure) Act(NSW) envisages. But that would aper to stretch the meaning of “impose a sentence.” The other solution is to avoid aggregate sentences altogether when minimum sentences are required so that each sentence is imposed and to allow for transparency in how s16AAA and s 19 Crimes Act (Cth) were applied.

Synthesis

  1. Section 16 A(1) Crimes Act (Cth) requires I impose sentences that are of a severity appropriate to all the circumstances of each offence. I must have proper regard to the maximum and minimum sentences (where applicable) but as the High Court has said:

“ ..the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances. The administration of the criminal law involves individualised justice, the attainment of which is acknowledged to involve the exercise of a wide sentencing discretion. It is wrong to suggest that the court is constrained, by reason of the maximum penalty, to impose an inappropriately severe sentence on an offender for the offence for which he or she has been convicted:” Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]

  1. I must impose individual sentences of a severity appropriate to all the circumstances of the offence: 16A(1) Crimes Act (Cth) or for the state offences the matters set out in s 3A Crimes (Sentencing Procedure) Act (NSW). I must also take into account relevant factors in s16A(2) known to the court and for the state offences the matters set out in s 21A Crimes (Sentencing Procedure) Act (NSW).

  2. What was done must be denounced. In each matter for sentence today there is a community's expectation that offenders will suffer punishment. A proper sentence marks the Court's view of the seriousness of the crime and should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at 205. The need to deter others from involving themselves in such offending by signalling that such behaviour will be met by significant penalties is an important consideration. So also, is denunciation of those who engage in such callous and/or predatory crimes: R v Booth [2017] NSWCCA 144 at [57].

  3. Although also a common law requirement, a court sentencing an offender for a Commonwealth child sex offence must specifically take into account the objective of rehabilitating the offender: s 16A(2AAA) Crimes Act (Cth). The requirement in section s16A (2AAA) does not displace or override the requirement that the sentence must be of a severity appropriate in all the circumstances of the offence: DPP v Garside [2016] VSCA 74 at [63]. McCall is still young. He is very immature and has had little opportunity to develop as an adult in the community. The treatment and programmes he sorely needs can only be provided in the community.

  4. He will need to learn how to interact in a lawful way with others. He cannot gain such skills in custody. He has limited coping skills. He is prone to maladaptive behaviour. He will need considerable help adjusting to community life. He does not know how to find work or stable accommodation. Without such help he will not be able to meet parole obligations to continue treatment. He will need referral to Sex offender programmes and psychological intervention in custody and on release.

Guilty pleas

  1. The offender must have the full benefit the law allows for the utilitarian value of his guilty pleas entered in the Local Court. He must have a reduction of 25% for the State offences: s25D Crimes (Sentencing Procedure)Act1999 (NSW). So far as the Commonwealth offences a similar reduction is generally required: s 16A(2)(g) Crimes Act (Cth):Xiao v R [2018] NSWCCA 4. In each Commonwealth matter I considered it appropriate to reduce each sentence by 25% taking into account of the guilty plea under s 16A (2) (g). However, where minimum sentences must be fixed that requirement is subject to ss16AAC(2) & (3) Crimes Act (Cth). Accordingly, he must only have a reduction of up to 25% as the section provides, here 20%.

  2. I must take care to ensure the process of accumulation does not erode those benefits.

  3. For transparency’s sake my starting points for sequences 27 and 35 was four years imprisonment. My starting points for sequences 32 and 34 was 5 years imprisonment.

  4. In relation to sequence 27 that sentence must be reduced by 25%.

  5. The remaining sequences all carry mandatory minimum sentences - s 16 AAC Crimes Act (Cth) applies. Sentencing should be a matter for judgment and not be an arithmetical exercise but sadly a judge is reduced to reaching for a calculator in such matters.

  6. In relation to the charge engaging in online communications (sequence 35) the minimum sentence can be imposed allowing the full reduction for the guilty plea of 25%.

  7. In relation to sequences 32 and 34 use a carriage service to transmit a communication to another person under 16 as my starting point for each sentence is 5 years, s 16AAC (2) and 93) puts a limit on the percentage reduction of 25 % I would otherwise have allowed. That is because the permitted reduction referred to in that section is “up to 25% of the period specified in column 2 of the applicable item in the relevant table”. It is therefore tied to the minimum sentence which in this case is of four years, a reduction of 20%.

Orders

  1. For the NSW offences:

  1. Sequence 11: Fixed term 9 months to commence on 25 January 2021

  2. Sequence 19: Fixed term 9 months to commence on 25 March 2021.

  1. For the Commonwealth offences

  1. Sequence 27: A sentence of 3 years imprisonment commencing on 25 April 2021.

  2. Sequence 35: A sentence of 3 years imprisonment commencing on 25 August 2021.

  3. Sequence 32: A sentence of 4 years imprisonment commencing on 25 December 2021

  4. Sequence 34: A sentence of 4 years imprisonment commencing on 25 April 2022.

  1. The total Commonwealth sentence is 5 years. The non-parole period of 3 years starts on 25 April 2021 and ends on 24 April 2024 on which date, subject to s 19AL Crimes Act 1914 (Cth), you are to be released on parole. The Commonwealth sentence ends on 24 April 2026.

  1. Explanatory note: Total Commonwealth sentence 5 years. Combined total for State and Commonwealth 5 years 3 months. The minimum time in custody that must be served is 3 years 3 months.

**********

Amendments

24 March 2022 - Typographical error only

12 May 2022 - Sentence corrected, by consent, pursuant to Section 19AHA Crimes Act 1914 (Cth). Error in calculation of total Commonwealth sentence and sentence expiry date.

28 April 2023 - Grammatical amendment made to [68]

Decision last updated: 28 April 2023

Most Recent Citation
Cases Citing This Decision

5

Hurt v The Queen [2022] ACTCA 49
R v Tomlinson [2022] NSWDC 220
R v Pilsbury [2022] NSWDC 484
Cases Cited

56

Statutory Material Cited

10

Adamson v The Queen [2015] VSCA 194
R v Latif; ex parte Director of Public Prosecutions (Cth) [2012] QCA 278
Potter v Minahan [1908] HCA 63