R v Pacey

Case

[2025] NSWDC 53

25 February 2025

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Pacey [2025] NSWDC 53
Hearing dates: 21/2/25, 25/2/25
Date of orders: 25/2/25
Decision date: 25 February 2025
Jurisdiction:Criminal
Before: Bourke SC DCJ
Decision:

Convicted and sentenced to an aggregate term of imprisonment of 2 years from today.

Pursuant to s.20(1)(b) of the Crimes Act (Cth), the offender is to be released immediately upon entering a recognizance, upon his giving security, without sureties, to comply with a period of 2 years, subject to the following conditions:

1. Be of good behaviour.

2. Be subject to supervision of a probation officer appointed in accordance with this order.

3. Obey all reasonable directions of the probation officer.

4. Not to travel interstate or overseas without the written permission of the probation officer.

5. Undertake such counselling, treatment, and/or rehabilitation as the probation officer reasonably directs.

The indicative sentences are (taking into account a 30 percent discount):

H2775706/2 – 14 months

H2775706/6 – 21 months

H2775706/7 – 18 months

Catchwords:

Crime – Sentence – Commonwealth offences - Use carriage service with the intention of procuring a person under 16 years of age for sexual activity – Use carriage service to transmit child abuse material to self - Use carriage service to send indecent material to a person under 16

Legislation Cited:

Crimes Act 1914

Cases Cited:

Bugmy v R (2013) 249 CLR 571

CDPP v De La Rosa [2010] NSWCCA 194

Crowder v The King [2024] VSCA 211

R v Bredal [2024] NSWCCA 75

R v TBE [2024] QCA 204

TM v R [2023] NSWCCA 185

VP v R [2010] NSWCCA 159

Category:Sentence
Parties: Commonwealth DPP – Crown
Will Pacey - Offender
Representation: Ms V Barros-Goncalves for Crown
Mr G Bithell for Offender
File Number(s): 23/118775
Publication restriction: Statutory non-publication order re the identity of the victim

remarks on sentence

  1. Mr Will Pacey is for sentence today in relation to three offences of a Commonwealth nature, they being as follows: The sequence 6 offence, which is one of using a carriage service with the intention of procuring a person under 16 years of age for sexual activity. The maximum penalty for that offence is 15 years imprisonment.

  2. Secondly, the sequence 7 offence, which is one of using a carriage service to transmit child abuse material to himself. The maximum penalty for that offence being 15 years imprisonment.

  3. And the third offence being using a carriage service to send indecent material to a person under the age of 16, the maximum penalty for which is 10 years imprisonment.

  4. The maximum penalties, of course, are important guideposts in the sentencing exercise, to which I have had regard.

  5. The offender pleaded guilty at the earliest opportunity and I intend to allow a 25 per cent discount by reason of that plea and its utility.

  6. The facts are agreed. However, there is a significant level of overlap between the criminality that is caught by the three offences. This was a matter I raised with the Crown during the sentence hearing and to which I will return after setting out the facts in a summarised form.

  7. The victim of the offence was born in August 2008 and was aged 13 at the commencement of the offending but turned 14 part way through. The offender was born in February 2004 and was aged 18 at all relevant times.

  8. In June 2022, the victim commenced communicating with the offender on “Tik Tok”. This contact started when the victim commented on a number of the offender’s Tik Tok videos and then asked to connect with him on a chat application called ‘Discord’. The communications on Discord commenced on 7 June 2022.

  9. The offender became aware that the victim was 13 within two weeks of commencing the communications on Discord. This was before any of the communications of a sexual nature, which are summarised in the statement of facts and to which I will make brief reference in these remarks. Although I intend to describe the facts in a summarised way, I have had regard to all of the facts set out in the agreed facts document.

  10. It was agreed by the parties that the sequence 2, “transmit indecent material” offence, should be approached on the basis that it comprised the following facts: Firstly that at least 10 images of the offender’s penis and at least 10 videos of the offender masturbating were sent by him to the victim during the period set out in the indictment.

  11. Secondly, that the transmit indecent material offence also included numerous sexually explicit text messages, including “role play” style messages. An example of these, which the Crown accepted was the worst example, was set out in para 9 of the statement of facts. That message was sent to the victim on 6 August 2022. I do not intend to set it out in full. Suffice to say that it referred to an apparent fantasy of the offender about the victim coming home after a “long day at school or work”, laying on a couch and the offender then performing certain sexual acts with the victim. These included removing her pants and licking her genitals, causing her to orgasm, followed by her removing the remainder of her clothes and placing her genitals on the offender’s face while he masturbated himself.

  12. As to the sequence 7, “cause child abuse material to be transmitted”, to himself offence, it was agreed that this offence consisted of the offender engaging in numerous video calls and text conversations with the victim, often spanning many hours, which resulted in the victim creating and sending to the offender numerous sexually explicit photographs and videos of herself. It was further agreed that the statement of facts, at paras 12 and 13, provided two examples, which the Crown accepted were the most serious examples of this type of material.

  13. The example at para 12 involved the transmission of video material to the offender on 7 August 2022. That transmission included the victim, at the request of the offender, exposing her genital area and using a hairbrush to penetrate her vagina. During this transmission, the offender instructed the victim about placement of the camera so that he could see her vagina, made comments about how “wet” she was, and about him masturbating and how hard his penis was, about “fingering” her and how he would like to “ram my dick inside you.” It also referred also to the victim as “my little slut” and as “my sexy bitch”.

  14. At times during this exchange, the victim repeatedly said, “Sorry” and said she did not know what she was doing and also referred to feeling “gross” and being sick of feeling “like shit because I think you’re gonna be mad at me for things”.

  15. The example at para 13 of the facts refers to other occasions which the victim told police about, where she, at the offender’s request, filmed herself performing sexual acts whilst showering or in another room. The victim told police that there were lots of videos, that it was “only a few times” that she initiated the inappropriate chat or videos and that the offender would get upset if she did not do as he wanted. She also spoke about concern that the offender may commit acts of self-harm if she did not do as he asked.

  16. As to the remaining offence, that being the sequence 6 “transmit communication with the intention of procuring”, a person under 16 years to engage in sexual activity, the Crown indicated that this offence related to the remaining parts of the agreed facts. In other words, and so as to avoid undue overlap, or to use the Crown’s word “duplicity”, this offence involved the multiplicity of communications between the offender and the victim which did not involve him sending her indecent material or involve her sending him sexually explicit videos or other images of herself.

  17. As these are Commonwealth offences, it is necessary that I address various factors in s 16A(2) of the Crimes Act 1914, in so far as they are relevant.

  18. Para (a) refers to the nature and circumstances of the offence. I have already set out the facts in summary form. There are a number of aspects which are common to each of the three offences and which are relevant to the assessment of their objective seriousness.

  19. Firstly, the victim in each instance was an individual actual child who was aged 13 to 14 and there is a presumption of harm where a child is the victim of such an offence.

  20. Secondly, the communications continued over a significant period of time.

  21. Thirdly, each of the offences were committed for the offender’s sexual gratification.

  22. Fourthly, the offender had actual knowledge of the victim’s age.

  23. Fifthly, however, the offender was aged 18 and so the age difference was not as great as in many cases.

  24. Sixthly, none of the offences involved any sophistication.

  25. Seventhly, the offences occurred in the context of an ongoing relationship which involved genuine and mutual friendship, affection and support. In referring to “mutuality” I do not ignore the fact that, at age 13 to 14, the victim was immature and legally incapable of consenting to engaging in sexual activity and sexualised communications. Nonetheless, the nature of the relationship is relevant because it demonstrates that the offences were not committed in what might be called the “usual” circumstances, where commonly an adult male sets out with the deliberate intention of connecting with a child for the sole purpose of engaging them in sexualised discussions and activity.

  26. Eighthly, the offending did not involve threats to the victim, like in some cases where an offender threatens to reveal sexualised material to others, such as posting them online or sending copies to family members. On the other hand, the offences did involve some degree of manipulation in that the offender regularly referred to his mental fragility, to being bullied and to his tendency to self-harm. As I have said, it seems to me that those matters are common to each of the offences.

  27. I now turn to consider the objective seriousness of each of the individual offences.

  28. For sequence 2, transmit indecent material offence, involved the offender sending to the victim at least 10 images of his penis and at least 10 videos of him masturbating. It also involved him sending to her numerous sexually explicit text messages, including the example set out at para 9 of the statement of facts, to which I have already made reference.   

  29. The Crown submitted that this was the least serious of the three offences but that it was, nonetheless, a very serious offence. The offence involved all of the common features to which I have earlier referred. The offender was directly responsible for creating and transmitting the material. It involved a considerable number of indecent transmissions and the images and videos that the offender sent were very explicit.

  30. Having regard to the various matters to which I have referred, I regard this as an offence that is above the low range but comfortably below the mid-range of objective seriousness.

  31. The sequence 7, “cause child abuse material to be transmitted” offence, involved the offender causing the victim, over the course of many online communications, to send to him numerous sexually explicit images and videos of herself, examples of which I have earlier noted.

  32. Again, the Crown submitted that this was objectively a very serious offence. It involved all of the common features to which I have already made reference. The offender was directly responsible for causing the victim to send the material. However, there is no suggestion that the offender intended to distribute the material to others.

  33. The offence involved the victim transmitting material that was very sexually explicit and the particular example to which I have made reference involving a hairbrush was particularly explicit and degrading of the victim.

  34. I assess this offence as being more objectively serious than the sequence 2 offence, although again below the mid-range of objective seriousness.

  35. The sequence 6 offence of transmitting communications with the intention of procuring a child to engage in sexual activity was argued by the Crown to be the most serious of the three offences and I accept this characterisation.

  36. Again, it involved all of the common features to which I have earlier made reference. The offence involved, at times, the offender using emotional manipulation and pressure on the victim to engage in sexualised conversations and to provide him with explicit images of herself or to engage with sexually explicit images of himself. I am conscious, however, that there is a significant degree of overlap between this offence and the other two and I therefore take care to avoid double counting.

  37. As the Crown accepted, the communications making up this offence occurred in a context where the offender and the victim were involved in a type of romantic relationship. There is also the fact that the offender pressed upon the victim the importance of keeping their relationship secret, which shows clearly his awareness of its inappropriateness.

  38. It was submitted by the Crown that this offence also involved the offender making suggestions or plans to meet up with the victim in person and potentially to engage in physical sexual contact with her. In support of this submission, the Crown referred to discussions that took place on 13 July 2022 as noted in the statement of facts at para 14, where there was some talk of the offender “coming over”, and the victim making reference to her parents not allowing him to stay and that he would not know any of her friends.

  39. I have considered this submission and this material. However, I am not satisfied that the offence involved any realistic plans or serious suggestions that the two would meet in person. In this regard, it is relevant to note that a further agreed fact is that the victim lived in Western Australia. Given the offender’s youth and his problems with anxiety and other issues, his lack of employment and access to funds, and the distance involved, it seems to me that the discussions about meeting up were little more than a fantasy that arose in the course of what was a rather child-like relationship which, as I have already said, involved mutual friendship, affection and support.

  40. Having regard to the various matters I have discussed, I regard this offence as being well above the low range but still below the mid-range of objective seriousness.

  41. Paragraph (d) of s 16A(2) of the Crimes Act 1914 refers to the personal circumstances of any victim of the offence and para (e) refers to any injury, loss or damage arising from the offence. I have already referred to the personal circumstances of the victim and, while there is no victim impact statement in this case, there is a presumption of harm where a child is the victim of a sexual offence.

  42. As the Crown submitted, the agreed facts include reference to mental harm that was experienced by the victim in that she referred to “feeling like shit because I think you’re gonna be mad at me” and the fact that she told police that the offender would “get upset and then I’d feel really bad”.

  43. Paragraph (f) refers to the degree to which the person has shown contrition by taking action to make reparation for any injury, loss or damage resulting from the offence or any other matter.

  44. Paragraph (g) refers to the guilty plea, the timing of that plea and the degree to which these things resulted in any benefit to the community, any victim or witness. The offender has pleaded guilty and I accept that this has significant utilitarian value in avoiding the need for a trial and avoiding the need for the victim to give evidence. While there is no fixed discount for guilty pleas in Commonwealth matters, I intend to apply a 25 per cent discount.

  45. I also accept that the offender has exhibited genuine remorse and contrition. He has done this in his affidavit and in his statements to others, including to police when he was arrested.

  46. Paragraph (h) refers to the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences. The statement of facts notes that the offender voluntarily attended the police station on two occasions and made full admissions. Furthermore, that he corroborated a number of aspects of the victim’s interview that were not otherwise apparent from the objective evidence. In my view, his co-operation should be acknowledged by a further discount on sentence of around 5 per cent.

  47. Paragraphs (j) and (ja) of s 16A(2) refer respectively to the deterrent effect on the person and the deterrent effect on others. Personal deterrence of this offender is, of course, very important. However, in my view this has already been achieved, to a significant degree, by reason of the offender’s arrest and the shame and embarrassment and stress that he has experienced to date. And, as I will set out shortly, I am satisfied that he is a low risk of reoffending.

  48. Clearly, general deterrence is of very significant importance for offences of this type, including, of course, in this matter. However, in my view the psychological issues which affected the offender at the time of the offences and currently are such that the importance of general deterrence is reduced.

  49. Paragraph (k) refers to the need for adequate punishment which is obviously a relevant factor in every sentencing exercise.

  50. Paragraph (m) refers to the character, antecedents, age, means and physical or mental condition of the offender.

  51. The offender’s subjective case has been placed before the court by a volume of written material. He turned 21 earlier this month but was 18 at the time of the offences. He was born in Warners Bay and is of Aboriginal heritage from his father’s side. He lives with his parents in Kurri Kurri. Since about late 2022 he has been in a relationship with a female partner who is slightly older than him.

  52. The psychiatric report of Dr Furst sets out some background and discusses the offender’s circumstances and mental state.

  53. The offender suffered bullying in primary and high school and struggled to find employment after leaving school. He has a long history of mental health problems, which include suicide attempts and other self-harm, anxiety and depression. He has a history of consulting doctors for these sorts of problems and being prescribed medications, including anti-depressants and has also engaged in psychotherapy. The offender’s unchallenged affidavit also indicates that he was the subject of sexual abuse by an older boy when he was in primary school.

  54. Dr Furst concluded that the offender’s presentation and history was consistent with below average intelligence, dyslexia, panic disorder, borderline personality disorder and possibly attention deficit hyperactivity disorder.

  55. The psychiatrist says that the offender’s mental age is lower than his actual age and that his social and communication skills are well below average.

  56. Dr Furst concluded that the offender’s immaturity, emotional distress and maladaptive pattern of coping likely predisposed him to forming an unhealthy and illicit sexual dialogue/connection with the victim and thus made some contribution to the offending behaviour. Dr Furst also expresses the view that he would be vulnerable in a prison environment and that any period in custody would be onerous for him. The doctor says also that the offender is not someone who requires specific sex offender treatment but that he would be assisted by psychological and psychiatric treatment for his anxiety, depression and social deficits.

  57. Other material before the court includes medical records referring to diagnoses of bipolar disorder, post-traumatic stress disorder and Autistic spectrum disorder. Significantly, the offender was, in November 2024, approved for the disability support pension, based on his various mental health diagnoses. His mother is his carer under this scheme.

  58. An affidavit from the offender’s mother confirms this and also confirms the offender’s history of being bullied, as well as self-harm and other mental health concerns. An affidavit from the offender’s father also refers to this history.

  1. The court also has the affidavit of the offender’s partner who, along with his parents, confirms the support that the offender has available to him in the community. The offender’s partner, who is slightly older than him, confirms that they have been in a relationship since some time after December 2022 and that the offender has been very open with her about the offences.

  2. There is also evidence that the offender has engaged in counselling which includes a focus on age-appropriate relationships and that this counselling is proposed to continue.

  3. Finally, there is a document confirming that the offender has been accepted to receive the disability support pension.

  4. Having regard to the offender’s background of sexual abuse and bullying, I am satisfied that the principles discussed in Bugmy v R (2013) 249 CLR 571 are engaged to some degree, such that the offender’s moral culpability is reduced.

  5. Furthermore, having regard to the offender’s longstanding psychological problems and their contribution to his offending, I am satisfied that the principles discussed in CDPP v De La Rosa [2010] NSWCCA 194 are engaged and that this also reduces the offender’s moral culpability.

  6. It is well established that an offender’s moral culpability may also be reduced by reason of their youth. That is because emotional maturity and the capacity to control impulsive behaviour develops progressively and may not be fully developed until the early to mid-20’s: VP v R [2010] NSWCCA 159. This is a separate consideration to matters such as childhood deprivation and abuse and mental health: TM v R [2023] NSWCCA 185.

  7. In my view, the combination of the offender’s youth, his psychological issues at the time of offending and his background of abuse and bullying operate to reduce his moral culpability to a significant and substantial degree.

  8. Paragraph (n) of s 16A(2) refers to the prospects of rehabilitation.

  9. Having regard to all of the matters to which I have referred and, in particular, the offender’s lack of prior offences, his social supports and the fact that he has no history of drug or alcohol problems, I am satisfied that the offender is a low risk of reoffending. I think his prospects of rehabilitation are reasonably good.

  10. Turning then to my ultimate determination. Offences of the kind before the court must be treated with the utmost seriousness and general deterrence and denunciation are of particular importance. Ordinarily, a term of immediate imprisonment is required. This is the result of a number of factors, including the prevalence of such offences and also the presumption that such offences usually cause real harm to child victims.

  11. I am satisfied, for the purposes of s 17A of the Crimes Act 1914, having considered all available alternatives, that no penalty other than imprisonment is appropriate with respect to each of the three offences.

  12. In making that determination and in determining the penalty for each offence and the ultimate sentence, I have had regard to the various matters to which I have made reference, as well as other provisions and matters to which I will refer in a few moments.

  13. Given that there are three offences, I intend to impose an aggregate sentence. It is necessary, therefore, that I set out the indicative sentence for each offence, which would have been imposed in the absence of an aggregate sentence. The indicative terms are as follows. All of these are after the application of the 30 per cent discount, being the combined discount for plea of guilty and co-operation and assistance.

  14. For the sequence 6, procure offence, the indicative term is 21 months imprisonment.

  15. For the sequence 7, cause child abuse material to be transmitted offence, the indicative term is 18 months imprisonment.

  16. For the sequence 2, transmit indecent material offence, the indicative term is 14 months imprisonment.

  17. In determining the aggregate sentence, I have given consideration to totality principles and the question of whether there should be any notional accumulation of the sentences. Section 19(5) of the (Commonwealth) Crimes Act 1914 creates a presumption of accumulation in sentencing for multiple child sex offences I have had regard to this provision and also to subs 19(6), which provides an exception in circumstances where the court comes to certain findings.

  18. Given that the offences in this case all relate to a single victim and are parts of the same episode of offending, I am satisfied that the imposition of a penalty of appropriate severity does not require the sentences to be fully accumulated. However, as each of the offences involve different aspects of the offending, it seems to me that there should be some degree of notional accumulation but it should not be great.

  19. I have had regard to the various cases to which the Crown drew my attention and which are set out in the schedule of comparative cases attached to the Crown’s original submissions. I have also had regard to the decisions in R v Bredal [2024] NSWCCA 75; Crowder v The King [2024] VSCA 211; and R v TBE [2024] QCA 204.

  20. I do not suggest that any of the cases to which my attention has been taken are precisely comparative but they have, nonetheless, provided some guidance.

  21. I note furthermore in relation to the decisions in Crowder and TBE that, as with all cases, they involved different circumstances and, in particular, each of those offenders were considerably older than the offender who is now before the court.

  22. I impose a head sentence of two years imprisonment.

  23. Section 16A(2AAA) provides that in determining the sentence or order to be made I must have regard to the objective of rehabilitating the offender. This is a matter which, in my view, must be given significant weight in the current sentencing exercise, although it does not displace the requirement that the sentence should be of a “severity appropriate in all the circumstances of the offence”. Nor does it displace other important aspects of sentencing, such as the need for general deterrence, specific deterrence and denunciation, to name just three.

  24. As the sentence I have imposed does not exceed three years, it is appropriate that I set a recognizance release order. Section 20(1)(b)(ii) provides essentially that where at least one of the offences is a Commonwealth child sex offence, I must order that the offender serve at least part of any recognizance release order by actual custody, unless I am satisfied that there are exceptional circumstances. This provision clearly is aimed in ensuring that child sex offenders receive sentences that reflect the very grave seriousness of their crimes.

  25. The expression “exceptional circumstances” is not defined and must be determined on a case by case basis. As was said by Dhanji J in R v Bredal, to which I have earlier made reference, in some cases it will be a combination of factors, each on their own not exceptional, which may make a particular case exceptional. And, as has been said in other cases referred to in Bredal, circumstances will be exceptional if they amount to an “exception” which is out of the ordinary course, or unusual, special or uncommon. The circumstances, however, need not be unique, unprecedented or very rare.

  26. In the case now before the court, Mr Bithell, solicitor for the offender, argued that there are a number of circumstances which, taken together, are exceptional. The Crown, however, disputed this, although it did, in oral submissions, accept that the circumstances are at least close to exceptional.

  27. In my view, exceptional circumstances are made out in this case by reason of the combination of the following matters:

  1. The somewhat unique nature of the offending which, unlike many offences, did not involve the offender actively searching out and seeking to engage with a child.

  2. The offender’s immediate co-operation with and assistance to police.

  3. The early pleas of guilty.

  4. The absence of any criminal history.

  5. The offender’s chronological age and the assessment of the psychiatrist that the offender is and was even less mature than his actual years.

  6. The fact that, in relation to the sequence 2 and sequence 6 offences, which can only be committed by a person over 18 years, the offender had only just reached that age at the time of those offences.

  7. The relatively small difference in age between the offender and the victim.

  8. The fact that the offending was not solely focused on the offender’s sexual gratification, but involved a relationship of mutual friendship, affection and support.

  9. The offender’s background of being a victim of sexual abuse and bullying.

  10. The fact that the offender has a fairly lengthy history of learning difficulties and social and psychological problems, with previous suicide attempts and admissions to psychiatric hospitals and is now accepted to receive the disability support pension.

  11. The fact that there was some link between the offender’s psychological issues and the offending.

  12. The absence of any diagnosis of a paraphilia, such as paedophilia.

  13. The offender’s low risk of reoffending and the steps he has taken towards rehabilitation and the positive findings that I have made about his prospects of rehabilitation.

  14. The time that has elapsed since the offences were committed and the absence of any other offending or bail breaches since then.

  15. The considerable support which the offender has via his family and the age appropriate relationship in which he is now engaged.

  16. The fact that, in my view, prison would expose an extremely fragile, naïve and vulnerable young man to serious violence and abuse, which would render any custody onerous in the extreme when compared with the case of a more mature and robust individual.

  17. The conclusion which I have reached that sending this offender into custody would involve a grave setback in his rehabilitation and recovery, which would likely increase his risk of reoffending and thus be antithetical to community protection.

  1. The orders I make are these:

  2. The offender is convicted of each of the offences.

  3. He is sentenced to a term of imprisonment for a period of two years from today. However, I order that, pursuant to s 20(1)(b) of the Crimes Act, that the offender be released immediately on entering a recognizance upon his giving security without sureties to comply for a period of two years with the following conditions.

  4. Firstly, that he be of good behaviour and not commit any offence.

  5. Secondly, that he be subject to supervision of a Probation officer appointed in accordance with this order.

  6. Thirdly, that he obey all reasonable directions of the Probation officer.

  7. Fourthly, that he not travel interstate or overseas without the written permission of the Probation officer.

  8. Fifth, that he undertake such counselling, treatment and/or rehabilitation as the Probation officer reasonably directs.

  9. Mr Pacey, you will have to sign that recognizance before you can be released today. I have imposed a sentence of imprisonment upon you, however, it is effectively a suspended one, in the sense that you have been placed on a recognizance release order. However, you will be subject to those conditions that I just set out, for a period of two years from today and if you break any of those conditions then you are liable to be arrested and you may serve the term of actual imprisonment. Do you understand?

  10. OFFENDER: Yes.

  11. HIS HONOUR: Ms Crown, Mr Bithell, anything that needs to be raised?

  12. BITHELL: No, your Honour, may it please the court.

  13. SAAB: No, your Honour.

**********

Decision last updated: 13 March 2025

Most Recent Citation

Cases Citing This Decision

1

R v Brooks [2025] NSWDC 354
Cases Cited

7

Statutory Material Cited

1

Bugmy v The Queen [2013] HCA 37
DPP (Cth) v De La Rosa [2010] NSWCCA 194