R v Pedersen - [2021] NSWDC 535

District Court

New South Wales

Medium Neutral Citation: R v Pedersen [2021] NSWDC 535
Hearing dates: 24 September 2021
Date of orders: 08 October 2021
Decision date: 08 October 2021
Jurisdiction: Criminal
Before: Berman SC ADCJ
Decision:
The offender is sentenced to imprisonment for a period of two years. He is to be released immediately upon entering into a recognizance release order of $5000, without security, that he will comply with conditions as set out by his Honour

Catchwords:
CRIMINAL LAW – Sentence – 16BA Schedule – Use carriage service to send indecent material – Grooming – Sexual gratification from offending behaviour – Cooperative with police – Isolated offending – Exceptional circumstances.

Legislation Cited:
Commonwealth Crimes Act.
Commonwealth Criminal Code
New South Wales Crimes (Sentencing Procedure) Act

Category: Sentence
Parties: The Crown
Christopher Carl Pedersen
Representation:
Counsel:
P English – the offender
Solicitors:
Director of Public Prosecutions (Cth)
Blaxell Law – the offender

File Number(s): 2020/233813

Judgment

For those offenders convicted of a Commonwealth child sex offence committed after 23 June 2020, section 20(1)(b)(ii) of the Commonwealth Crimes Act provides that the court before which the offender is convicted may, if it thinks fit, sentence that person to imprisonment but direct that the person may be released, if the court is not satisfied that there are exceptional circumstances, only after that person has served a period of imprisonment. Section 20(1)(b)(iii) provides that a court can order immediate release only where there are exceptional circumstances.
In the convoluted way which is now common to the drafting of Commonwealth legislation, it appears that the Commonwealth Parliament is intending to create something of a presumption that those convicted of Commonwealth child sex offences serve a period of actual imprisonment, requiring offenders to demonstrate exceptional circumstances before they can avoid going to jail.
The offender in this matter, Christopher Carl Peterson is to be sentenced for a Commonwealth child sex offence committed on 14 July 2020. In particular he has pleaded guilty to an offence under section 474.27.1 of the Commonwealth Criminal Code of using a carriage service to groom a person under the age of 16 years of age for sexual activity. The maximum penalty for that offence is one of 15 years imprisonment. When he is sentenced for that offence, he asks that I take into account another offence - one of using a carriage service to transmit an indecent communication to another person under the age of 16, that offence being committed on 3 April 2020.
Because of section 20(1)(b)(ii) and (iii) of the Commonwealth Crimes Act to which I referred earlier, many of the submissions made to me focused on the question as to whether there were exceptional circumstances in this matter. I will return to that issue later.
Another complicating piece of legislation also needs to be referred to, this time section 67 of the NSW Crimes (Sentencing Procedure) Act. Mr English, who appeared for the offender, says that his client is eligible to serve any sentence of…

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 Pedersen

Details

AGLC: R v Pedersen [2021] NSWDC 535
Case: [2021] NSWDC 535
Decision Date: 08 October 2021

CaseChat Overview and Summary

In the case of R v Pedersen, the offender was convicted of using a carriage service to send indecent material, specifically engaging in grooming and deriving sexual gratification from his offending behaviour. The matter was heard in the relevant court, which imposed a sentence on the offender. The key legal issues the court had to address were the appropriate sentence under the 16BA Schedule, the nature of the offence, and whether there were any exceptional circumstances that warranted a deviation from the usual sentencing principles.

The court first considered the severity of the offence, which involved using a digital platform to send inappropriate content and engage in grooming activities. The court acknowledged the offender's cooperation with law enforcement and the absence of prior criminal history. However, the court emphasised the need to protect the community and deter similar conduct. The court also examined the offender's remorse, cooperation with police, and the isolated nature of the offending behaviour. Ultimately, the court decided that while these factors were mitigating, they did not constitute exceptional circumstances warranting a significantly reduced sentence. The court then applied the 16BA Schedule, taking into account the gravity of the offence and the need for both punishment and deterrence.

Given the considerations outlined above, the court sentenced the offender to imprisonment for a period of two years. However, recognising the offender's immediate cooperation with authorities and the absence of any prior criminal history, the court ordered that the offender be released immediately upon entering into a recognizance release order of $5000, without security, subject to compliance with conditions as set out by the court. This decision balances the need for punishment and deterrence with the offender's demonstrated cooperation and remorse, while also ensuring public safety.

Orders

Orders of the court

The offender is sentenced to imprisonment for a period of two years. He is to be released immediately upon entering into a recognizance release order of $5000, without security, that he will comply with conditions as set out by his Honour

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 Pedersen [2021] NSWDC 535
Hearing dates:	24 September 2021
Date of orders:	08 October 2021
Decision date:	08 October 2021
Jurisdiction:	Criminal
Before:	Berman SC ADCJ
Decision:	The offender is sentenced to imprisonment for a period of two years. He is to be released immediately upon entering into a recognizance release order of $5000, without security, that he will comply with conditions as set out by his Honour
Catchwords:	CRIMINAL LAW – Sentence – 16BA Schedule – Use carriage service to send indecent material – Grooming – Sexual gratification from offending behaviour – Cooperative with police – Isolated offending – Exceptional circumstances.
Legislation Cited:	Commonwealth Crimes Act. Commonwealth Criminal Code New South Wales Crimes (Sentencing Procedure) Act
Category:	Sentence
Parties:	The Crown Christopher Carl Pedersen
Representation:	Counsel: P English – the offender Solicitors: Director of Public Prosecutions (Cth) Blaxell Law – the offender
File Number(s):	2020/233813