R v McCann - [2024] NSWDC 493

District Court

New South Wales

Medium Neutral Citation: R v McCann [2024] NSWDC 493
Hearing dates: 24 May 2024
31 May 2024
9 July 2024
Date of orders: 9 July 2024
Decision date: 09 July 2024
Jurisdiction: Criminal
Before: Montgomery DCJ
Decision:
(1)   The Offender is convicted of the sequence 4 offence.
(2)   In relation to the sequence 4 offence, the Offender is sentenced to a term of imprisonment of 3 years 1 month and 15 days, commencing 12 December 2022 with a non-parole period of 1 year and 6 months, expiring on 11 June 2024 and a balance term, expiring on 26 January 2026.
(3)   The Offender is convicted of the sequence 5 offence.
(4)   In relation to the sequence 5 offence, the Offender is sentenced to a fixed term of imprisonment, commencing 12 January 2024 and expiring 11 July 2024.
(5)   The Offender will be eligible for release to parole on 11 July 2024 and thereafter, until 26 January 2026 he is to comply with all reasonable directions of Corrective Services, including in regard to the requirements of any mental health plan, including direction to specialist forensic psychological services or a private psychologist and generally the Offender is to comply with the reasonable requirements of any treatment plan addressing the risks of his re-offending factors, including social detachment, presence of deviant sexual interests and use of pornography to achieve emotional and/or physical pleasure. I recommend that Community Corrections be provided with the report of Ms Kris North, forensic psychologist, dated 8 December 2023. I recommend that Community Corrections direct the Offender to professional psychological treatment as appropriate.

Catchwords:
CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material
CRIME — Child sex offences — Child abuse material — A registrable person failing to comply with reporting obligations without reasonable excuse
SENTENCING — Mitigating factors — Plea of guilty
SENTENCING — Mitigating factors — Rehabilitation
SENTENCING — Subjective considerations on sentence — Hardship — Hypervigilance with anxiety suffered from previous sexual assaults in prison

Legislation Cited:
Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
Crimes Act 1914 (Cth), ss 16A(1), 16A(2), 16A(2AAA), 16A(3), 16AAB(1), 16AAB(2), 16AAC(2), 16AAC(3), 16AB(2), 17A, 19AB(1), 19AB(3), 19AC, 19B, 20(1)(a), 20(1)(b),
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D(2)(a)
Criminal Code (Cth), s 474.22(1)

Cases Cited:
Crane v R [2024] NSWCCA
Hurt v R; Delzotto v R [2024] HCA 8
Phibbs v R [2023] VSCA 123

Category: Sentence
Parties: Rex (Crown)
Simon Paul McCann (Offender)
Representation:
Counsel:
Ms Cassandra Hayden (Solicitor advocate for Crown)
Mr Rajiv Baldeo (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Legal Aid New South Wales (Offender)

File Number(s): 2022/00374872

JUDGMENT

The Offender was born in February 1973. He stands for sentence for offences committed when he was 49 years of age. He was committed for sentence on 25 August 2023 and entered pleas of guilty at the first available opportunity.
The two offences are: sequence 4 The

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McCann

Details

AGLC: R v McCann [2024] NSWDC 493
Case: [2024] NSWDC 493
Decision Date: 09 July 2024

CaseChat Overview and Summary

McCann was convicted and sentenced by the court for multiple child sex offences and failure to comply with reporting obligations. The offences related to the use of a carriage service for child pornography material and child abuse material, and the failure to report these activities. The court determined that McCann was a registrable person who did not comply with mandatory reporting requirements without a reasonable excuse. The legal issues addressed by the court included the applicability of the relevant statutory provisions to the facts, the sentencing principles applicable to the offences, and the appropriate sentence considering the mitigating factors presented.

The court considered various legal principles in reaching its decision. It examined the provisions of the relevant criminal statutes to establish the nature and extent of McCann's offences. The court also assessed the sentencing principles set out in the Sentencing Act, taking into account the gravity of the offences, the mitigating factors, and the need to deter and rehabilitate the offender. The court further evaluated the mitigating factors, including McCann's plea of guilty, his history of rehabilitation efforts, and the hardship he faced due to hypervigilance and anxiety from previous sexual assaults in prison. The court balanced these factors against the need to protect the community and ensure just outcomes.

Upon weighing the legal issues and mitigating factors, the court sentenced McCann to a term of imprisonment for the sequence 4 offence, with a non-parole period and a balance term. For the sequence 5 offence, McCann received a fixed term of imprisonment. The court also made specific orders regarding parole eligibility, compliance with treatment plans, and directions for professional psychological treatment. The court's sentencing aimed to address the offender's risk factors, provide for community protection, and facilitate McCann's rehabilitation. The final orders specified the terms of imprisonment, parole eligibility, and the requirements for compliance with treatment and psychological services.

Orders

Orders of the court

(1) The Offender is convicted of the sequence 4 offence.

(2) In relation to the sequence 4 offence, the Offender is sentenced to a term of imprisonment of 3 years 1 month and 15 days, commencing 12 December 2022 with a non-parole period of 1 year and 6 months, expiring on 11 June 2024 and a balance term, expiring on 26 January 2026.

(3) The Offender is convicted of the sequence 5 offence.

(4) In relation to the sequence 5 offence, the Offender is sentenced to a fixed term of imprisonment, commencing 12 January 2024 and expiring 11 July 2024.

(5) The Offender will be eligible for release to parole on 11 July 2024 and thereafter, until 26 January 2026 he is to comply with all reasonable directions of Corrective Services, including in regard to the requirements of any mental health plan, including direction to specialist forensic psychological services or a private psychologist and generally the Offender is to comply with the reasonable requirements of any treatment plan addressing the risks of his re-offending factors, including social detachment, presence of deviant sexual interests and use of pornography to achieve emotional and/or physical pleasure. I recommend that Community Corrections be provided with the report of Ms Kris North, forensic psychologist, dated 8 December 2023. I recommend that Community Corrections direct the Offender to professional psychological treatment as appropriate.

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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Medium Neutral Citation:	R v McCann [2024] NSWDC 493
Hearing dates:	24 May 2024 31 May 2024 9 July 2024
Date of orders:	9 July 2024
Decision date:	09 July 2024
Jurisdiction:	Criminal
Before:	Montgomery DCJ
Decision:	(1) The Offender is convicted of the sequence 4 offence. (2) In relation to the sequence 4 offence, the Offender is sentenced to a term of imprisonment of 3 years 1 month and 15 days, commencing 12 December 2022 with a non-parole period of 1 year and 6 months, expiring on 11 June 2024 and a balance term, expiring on 26 January 2026. (3) The Offender is convicted of the sequence 5 offence. (4) In relation to the sequence 5 offence, the Offender is sentenced to a fixed term of imprisonment, commencing 12 January 2024 and expiring 11 July 2024. (5) The Offender will be eligible for release to parole on 11 July 2024 and thereafter, until 26 January 2026 he is to comply with all reasonable directions of Corrective Services, including in regard to the requirements of any mental health plan, including direction to specialist forensic psychological services or a private psychologist and generally the Offender is to comply with the reasonable requirements of any treatment plan addressing the risks of his re-offending factors, including social detachment, presence of deviant sexual interests and use of pornography to achieve emotional and/or physical pleasure. I recommend that Community Corrections be provided with the report of Ms Kris North, forensic psychologist, dated 8 December 2023. I recommend that Community Corrections direct the Offender to professional psychological treatment as appropriate.
Catchwords:	CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material CRIME — Child sex offences — Child abuse material — A registrable person failing to comply with reporting obligations without reasonable excuse SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Mitigating factors — Rehabilitation SENTENCING — Subjective considerations on sentence — Hardship — Hypervigilance with anxiety suffered from previous sexual assaults in prison
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1) Crimes Act 1914 (Cth), ss 16A(1), 16A(2), 16A(2AAA), 16A(3), 16AAB(1), 16AAB(2), 16AAC(2), 16AAC(3), 16AB(2), 17A, 19AB(1), 19AB(3), 19AC, 19B, 20(1)(a), 20(1)(b), Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D(2)(a) Criminal Code (Cth), s 474.22(1)
Cases Cited:	Crane v R [2024] NSWCCA Hurt v R; Delzotto v R [2024] HCA 8 Phibbs v R [2023] VSCA 123
Category:	Sentence
Parties:	Rex (Crown) Simon Paul McCann (Offender)
Representation:	Counsel: Ms Cassandra Hayden (Solicitor advocate for Crown) Mr Rajiv Baldeo (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Legal Aid New South Wales (Offender)
File Number(s):	2022/00374872